Kobir, R (on the application of) v Secretary of State for the Home Department

On 15^th May HH Judge Anthony Thornton QC gave permission for judicial review of the Defendant’s decision of 3^rd November 2010 refusing to grant the Claimant leave to remain as a Tier 4 (General Student) Migrant and made certain other orders.

The background facts are as follows. On 9^th January 2002, the Claimant applied in Bangladesh for a visa to enter the UK, was granted it and arrived in the UK via Heathrow. On 14^th January 2002, he applied for leave to remain as a student. The application was successful. On 1^st March 2005, 20^th April 2006, 1^st April 2007 and 25^th April 2008 he was granted further leave to remain. In 2006 he was lawfully joined by his wife. On 15^th August 2007 his son was born and on 14^th September 2008 his daughter was born. By the Spring of 2009 the Claimant had successfully completed a three year degree course in Computer Science and wanted to take an 18 month, post graduate Diploma in Business Management at the London School of Technical Education in Ilford, which lasted from 20^th April 2009 to 10^th September 2010. He paid the full tuition fee of £2,500 and started the course on the due date. His current leave to remain expired on 31^st May 2009.

Up to this point, therefore, the Claimant’s immigration history was impeccable and as far as the evidence goes he was leading a law-abiding life with his wife and children, peaceably carrying on with his studies in pursuit of the academic qualifications he wanted to acquire before returning to his home country to follow his intended career path. It is apparent that he received financial assistance from relatives in Bangladesh and he also worked limited hours, as permitted to full time students with leave to remain, having sought and obtained permission from the Defendant to do so.

The First Failed Application

The Claimant made a mistake. He sent the money for his own fee and that of his wife, totalling £407, but failed to appreciate that he needed to pay £50 for each of his two young children. The total was, therefore, short by £100. All other aspects of the application were correct. Of particular relevance to what happened next is the fact that he complied with the requirement to provide documentary proof that he had the necessary maintenance funds for 2 months in the total sum of £1,200, as required for a student whose primary site of study was outside London. This was met by submitting a bank statement which showed that he had that sum in his account for the requisite period of 28 days and the last entry of which was dated 22^nd May, thus satisfying by a wide margin the instruction that the end date should be no more than one month before the date of his application.

Four weeks later, the Defendant returned all the applications under cover of a letter dated Friday 26^th June 2009 as invalid because the fees paid were insufficient. The letter is in standard form for applications which are invalid for reasons relating to the fees payable and/or failures to comply with the Biometric Regulations. Out of the various options in the standard form, the writer selected the box relating to underpayment of fees and in the standard text, adjusted for the Claimant’s particular case, stated what the individual and total fees were. The letter envisages that an invalid application may be made again. I mention in passing that it contains no “red hand” warning, as it could so easily do, that if an invalid application is resubmitted, even by return (as the Claimant’s effectively was, allowing for the intervening weekend and the post) it is treated as a new application and the applicant should ensure that all supporting documentation is still in date. The Claimant claims in his original Application Notice that he believed that the letter dated 26^th June 2009 did not require him to submit a fresh application but merely to return the documents with the correct fee. I find that claim to be wholly credible.

The second failed application

That the Claimant had made a genuine mistake about the fees is eminently credible, given the amount of documentation he had gone through in order to complete the forms and that it was the first time he had had to grapple with them. The Defendant does not contend to the contrary.

The Defendant stamped this application as received on 9^th July 2009. She has, however, consistently treated the application as made on 8^th July and I will adopt the same approach. For effectively an entire year, the Defendant did not respond to this prompt and courteous explanatory letter nor did she notify her decision to the Claimant. The consequences of that lapse of time for the Claimant were serious. His previous leave to remain had expired and he did not know what his or his family’s immigration status was. Without proof that he had valid leave to remain he could not, I was told, continue with the post graduate course for which he had paid and had started on 20^th May, and in consequence lost the value of the tuition fee. In addition he had, as required, enclosed the family passports with the application, thus depriving all four members of the family of their primary means of establishing their identity should the need arise, a situation which continues to this day. Furthermore he lost the opportunity of correcting the error promptly by making a third application accompanied by a compliant bank statement. Had the Defendant responded to this application in about four weeks, say by about 5^th August, the Claimant could, and in all probability would, have submitted a further application within a week or so, supported by an up to date bank statement, and in any event prior to 20^th August, accompanied by the explanation made on his behalf by his solicitors in the Application for Judicial Review. The significance of this lost opportunity is set out below.

The reason for the long delay was not that the Defendant’s case workers were overwhelmed with work. It was due to a deliberate decision not to process the Claimant’s application for some eleven months because the academic establishment at which he was enrolled was either under investigation or suspended. The first suspension, however, did not occur until 23^rd September 2009, more than 10 weeks after the application was received. That suspension was lifted on 11^th January 2010. A second suspension was imposed on 19^th January which was lifted on 15^th June 2010. As far as the evidence goes this was the last suspension and at no time in the relevant period was the establishment disqualified. It is common ground that the Claimant had no knowledge of these suspensions and reinstatements.

The Defendant has provided no explanation why the mere fact of investigation in the period between 8^th July and 23^rd September led to the decision not to process the Claimant’s claim in that period, and to do so without telling him. The Defendant relies in a passage in section 6 of the Tier 4 Policy Guidelines to establish the reasonableness of her actions. The relevant text says,

“If you are already in the United Kingdom and studying with your approved education provider, we will not tell you if we suspend their [sic] licence. However, if the result of the suspension is that your approved education provider loses their [sic] licence, we will tell you and your permission to stay will be limited. You can still apply to extend your permission to stay if it runs out when your approved education provider’s licence is suspended, as long as you already have your visa letter. However, we will hold your application until the suspension is resolved.”

The first two sentences are not directed at students who are seeking to extend their leave to remain. As far as the second and third sentences are concerned, they also are not applicable to the Claimant’s case for two reasons. First his leave to remain had not run out when his approved education provider’s licence was suspended; when his previous leave to remain expired on 31^st May his provider was not even under investigation. Secondly, the sentences are only concerned with applications made when a provider’s licence is suspended; they say nothing about applications made when a provider is under investigation. In consequence nothing in these words of guidance establishes the proposition for which they are cited. On the contrary, the absence of a warning that applications will not be processed if made at a time when the approved education provider is being investigated gives rise, in my judgment, to the legitimate expectation that applications made during periods of investigation will be processed in the usual way, making the Defendant’s decision not to do so in this case, unreasonable. Finally, nothing in the text warns an applicant for leave to remain that if the Defendant decides not to process the application because the education provider is under investigation, the Defendant will not tell him of that decision, but will instead leave him in limbo, not knowing whether his application has been lost or caught up in a backlog of other applications or whether there is a problem with his approved education provider.

By a letter dated 6^th July 2010 the Defendant finally notified her decision in relation to the 8^th July 2009 application. This said that the Claimant’s application had failed. The stated reason was that it was not possible to establish that the Claimant had the £1,200 maintenance fund. In consequence, because the Claimant was applying under the Points Based System he failed to score the necessary 10 points for maintenance funds, with the further consequence that he failed to score the necessary 40 points in total. Accordingly, the Defendant decided to refuse his application for leave to remain as a Tier 4 (General) Student Migrant because he did not meet the requirements of paragraph 245ZX(d) of the Immigration Rules. The letter ended by telling the Claimant that his application had been made after his previous leave to remain had expired, that he had no right of appeal, that he had no right to remain in the UK and that he was liable to be removed and should leave as soon as possible. He was warned that if he did not leave voluntarily he might be prosecuted and was liable to be removed from the UK to Bangladesh. That threat was reinforced by the advice that the papers had been forwarded to his local enforcement office and the further advice that he should telephone that office by 16^th July 2010 at the latest to discuss his departure from the UK. It may fairly be assumed that among the papers passed to the local enforcement office were the four family passports which had been out of his possession and in the Defendant’s hands since the second failed application was sent on 3^rd July 2009.

The problem arose in this way. The required proof that an applicant has the necessary maintenance funds consists of various categories of documents including personal bank statements. As set out in the application form, if a bank statement is relied on it must show that the applicant had the requisite funds in his or her account “for a 28 day period ending no more than one month before the date of the date of [the] application”. In light of the change in formula from “28 days” to “one month” it is clear that what the Defendant intends by “month” is a calendar month. As set out above, this requirement was met in the case of the application made on 29^th May by the bank statement with the end date of 22^nd May 2009. By the time the application was resubmitted with the correct fees on 8^th July, however, that bank statement no longer complied by the modest number of days between 22^nd May and 8^th June 2009.

It is relevant at this point to consider what would have happened if the Claimant had complied with the direction that he and his family should leave as soon as possible. The Defendant accepted during oral submissions that once the Claimant was back in his own country he would be entitled to make an application to enter the UK. The Defendant declined to go beyond accepting that if such an application was made it could succeed. The reality is, however, that the Claimant, whose long immigration record was unblemished save for the fact that in 2009 he had made one application within time, which by mistake was invalid for want of the fees for his children, and shortly thereafter a second one out of time which was invalid because he thought he was doing no more than returning the previous application with the correct fee and thus failed to provide a more recent bank statement, would probably be granted leave to enter because there was no good reason to refuse it. One therefore has to ask what would be the purpose of requiring him to suspend the final stages of his education and incur the considerable cost and disruption of taking himself and his family to Bangladesh and then back again to the UK once entry clearance was granted and whether it is reasonable and proportionate in all the circumstances for the Defendant to require him to do so.

It is apparent from the documents, and as is to be expected given the purpose of the applications, that the Defendant usually deals with Tier 4 (General) Student applications within a few weeks. The decision of the Defendant deliberately to shelve the Claimant’s application without explanation for an indefinite period of time which ultimately lasted a year, instead of dealing with it within the usual time frame meant that the Claimant lost the opportunity of resubmitting his application promptly, supported by an up to date bank statement and a letter explaining that he thought he was merely sending back the 8^th July application with the correct fees.

The Third Failed Application

On 2^nd February 2011 the Claimant filed his application seeking judicial review of the decision of 3^rd November 2010. On 25^th February 2011 the Defendant withdrew that decision letter and stated that she would reconsider the Claimant’s application. Having done so, on 3^rd March the Defendant issued a further decision letter, again refusing the application. This stated that the application made on 25^th September 2010 had been considered again and the decision taken that the Claimant did not meet the immigration rules because,

“The documents you have provided do not show that you held the required level of funds for a period of 28 days with closing balance of one month prior to date of application.”

The basis of that decision was not that the bank statement was out of date. As set out above, it was compliant as to date and had been accepted by the Defendant as such, as had the amount evidenced by it. The Defendant now took a different stance. This was that the Claimant did not meet the requirements to be assessed as having an established presence in the United Kingdom. In consequence he had to meet the very much more onerous maintenance fund requirement of £21,591, instead of £1,600 and his bank statement did not show that he had that much money.

If the Defendant had processed the Claimant’s 8^th July application within a reasonable period of time instead of deliberately shelving it for a year and if the Claimant, on being told that his bank statement was out of date, had promptly made a further application supported by a compliant bank statement it seems probable that he could not, in relation to that application, which would have been made notionally in the first half of August 2009, have been treated as a person who did not have an established presence in the United Kingdom. That is because he may well have been able to satisfy the requirements in paragraph 14 of Appendix C of the Immigration Rules. These provide that,

“An applicant will have an established presence studying in the United Kingdom if the applicant has completed a course that was at least six months long within their [sic] period of leave as a Tier 4 ... student ... and this course finished within the last four months ...”.

The Claimant indisputably met the first requirement and it appears that he would have met the second requirement when making a further application in the first half of August 2009 because although various dates are given in the documents for the end date of his previous course, the best evidence is that it finished immediately before the start of his post graduation course on 20^th May 2009. If so, a further application made on any date prior to 20^th August would have met the second requirement.

Application out of time

The lawfulness of the Defendant’s various decisions

In the Forrester case the Claimant had been lawfully in the UK since 13^th June 2002 with valid leave to remain until 30^th November 2007. She had a child. She met and married a man who had lived in the UK for some 38 years and who had indefinite leave to remain. Before her leave expired, the Claimant applied for further leave to remain as the spouse of a person who was present and settled in the country. She also made an application on behalf of the child. The application was rejected on the sole ground that the cheque for the application fee had been returned due to insufficient funds. Reasonably promptly given the intervention of the Christmas period she resubmitted her application with a new cheque which was met. Her application was, however, refused this time because it had been made after her leave to remain had expired. It was common ground that if the Claimant returned to her own country she could apply for entry clearance on the same grounds as her in-country application and that it was likely to be successful. In consequence, the refusal served no better purpose than to force the Claimant to incur the expense of travelling with her child to her own country and then travelling back again.

In quashing that decision and sending the matter back to the SSHD for reconsideration with the hope that a little common sense and humanity would prevail, Sullivan J did not dispute the SSHD’s contention that the decisions accorded with the rules but pointed out that that was not the end of the matter because the SSHD had a discretion which had to be exercised with a modicum of intelligence, common sense and humanity.

In the case of R. on the application of Walker v. SSHD [2010] EWCH 2473 (a rolled up hearing) the Claimant failed to provide the photograph without which her application, made before her leave to remain expired, was invalid and failed, when resubmitting it after her leave to remain had expired, to provide any explanation for her failure. The SSHD in that case, therefore, had no material upon which to exercise her discretion and although permission was given the claim was refused. That case, therefore, is very different from the present one where there was ample material in the shape of the Claimant’s explanatory letter upon which the Defendant could exercise her discretion.

In addition, the probability that the Claimant would be granted entry clearance if he took his family back to Bangladesh enables me to say without hesitation that the decision to refuse leave in response to each application was wholly disproportionate to the Defendant’s legitimate need to maintain a fair and firm immigration system.

Delay

Taking into account (1) the Claimant’s long and trouble-free immigration history between 2002 and mid-2009 (2) the modest and understandable nature of the error in making the first application (3) the prompt and full explanation which accompanied the second application (4) the absence of proportionality in requiring the Claimant to incur the cost and disruption of removing his family to Bangladesh although he would be entitled once there to make an application for entry clearance which would probably succeed, (5) the period of inexcusable delay on the part of the Defendant before processing the second application, as a result of which the Claimant lost the opportunity promptly to explain and make a compliant third application, probably in the capacity of a person with an established presence in the United Kingdom, all lead inexorably to the conclusion that when each of the decisions was made, and all the more so when deciding to replace the decision made on 3^rd November 2010 with the decision made on 3^rd March 2011, it was manifestly unfair and unreasonable for the Defendant not to have looked very carefully indeed at the full history with a view to exercising her discretion outside the rules rather than simply refusing it within the rules.

Accordingly the decision of 3^rd November 2010 is quashed, together with the replacement decision of 3^rd March 2011 and the decision of 6^th July 2010 and the case is remitted for further consideration by the Defendant. The discretion is that of the Defendant. Accordingly, the Claimant’s application for an order of mandamus requiring her to grant leave to remain is refused.

Article 8 of the ECHR

That being so, it is unnecessary to address the Defendant’s contention that the Claimant has no Convention rights arising out of his wish to study in the UK especially at tertiary level and in the alternative, no rights that have been breached.

Damages