England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Upper Tribunal Judge Hanson)

		Royal Courts of Justice Strand London, WC2A 2LL
		10 February 2016

1. LORD JUSTICE ELIAS: This is an appeal against the decision of Upper Tribunal Judge Hanson sitting in the Upper Tribunal (Immigration & Asylum Chamber). By a decision dated 4 September 2014, he refused to grant the applicant permission to apply for judicial review to challenge a decision of the Secretary of State for the Home Department who had refused the applicant leave to remain as a Tier 4 student. Permission was granted by Floyd LJ on one ground only. The appellant seeks to renew the other two grounds which he refused.

2. Background

2. The appellant is a citizen of Nigeria who was born on 21 November 1991. He was granted leave to enter the UK as a student on 16 August 2008 until 31 October, then to study A-levels at a school in Surrey. On 22 September 2010, he was granted further leave to remain as a Tier 4 (General) student until 14 October 2013 to study for a BA at the University of Exeter Business School. He was unhappy with that course and so he chose to leave it. On 3 March 2013, his leave to remain was curtailed so as to expire on 3 May 2013. His university at Exeter had then notified the Secretary of State that he had ceased his studies.
3. The appellant was then offered a place to study for a BSc in Business Management at BPP University to run from 15 May 2013. He was made that offer on 15 March. BPP University issued a CAS to him on 17 April 2013. That is a certificate which demonstrates that they are accredited to provide him with the relevant course.
4. The appellant alleges that on 17 April 2013 he made an application for further leave to remain as a Tier 4 (General) student using that CAS. He says that he sent this to the Secretary of State's Croydon office. He alleges that the Secretary of State must have received that by 25 April 2013. The Secretary of State has no record of receiving the application which he alleges he made.
5. He started attending classes at BPP University while waiting for the outcome of his application. He says he was stopped by BPP from doing that on 31 May 2013 because there had been no acknowledgement from the Secretary of State. In those circumstances, the BPP University would not allow him to continue the studies and they withdrew the CAS so that it was no longer capable of being relied upon by him.
6. He made efforts to investigate the whereabouts of his application, but unsuccessfully. He says that he had sent the original application by special delivery but he had not kept the relevant document which would have provided proof of that and furthermore he did not take any copy of his application. On 1 July BPP agreed to defer his place until September 2013 and indeed matters were resolved.
7. He then made a further application for leave to remain as a Tier 4 (General) student on 16 July 2013, on the assumption that the Secretary of State had not received the earlier application. The Secretary of State acknowledged that application on 18 July 2013 but then notified him that he had not submitted a valid passport with his application. She told him that his application would be treated as invalid unless that was submitted within 7 days. He obtained a new passport from the Nigerian High Commission having informed the police that his existing passport, and indeed two earlier ones, must have been lost.
8. The Secretary of State refused the application made on 16 July on 27 August 2013. There were two reasons for that decision. First, that he had overstayed more than 28 days contrary to paragraph 245ZX(m) of the Immigration Rules and, secondly, that BPP had by then withdrawn his CAS and therefore he was not entitled to any points under Appendix A and Appendix C to the Immigration Rules.
9. In view of that, and the fact that he was told that it would be a criminal offence for him to remain in the country, he purchased airline tickets to leave the UK voluntarily on 6 September 2014. He attended the voluntary departure unit at Becket House to collect his passport to leave the country. It was then that he learnt that three of his passports were in the possession of the Secretary of State. They had been sent to a passport bank in north London.
10. In view of that information, the appellant sought to take proceedings against the Secretary of State. He sent a pre-action protocol letter to the Secretary of State on 12 September 2013 and issued a judicial review claim in the Administrative Court on 24 September 2013. The application was subsequently transferred to the Upper Tribunal.

12. The judge's decision

11. The judge noted that the decision under challenge was the refusal to issue a visa on 27 August 2013; it was not the refusal to accede to the earlier application in April, assuming one was made. The judge accepted, however, that the first issue to be determined was whether or not the application had been lodged before leave had expired. If so, the applicant was then lawfully in the country until his application had been determined and there was at that point a valid CAS in existence.
12. The judge considered that the burden of showing that the application had been lodged rested on the applicant. He was not satisfied that it had been sent. He pointed out that the Secretary of State had caused inquiries to be carried out but no application had been found. In addition no copy had been kept and there was no proof that it had been posted. The judge accepted that certain steps had been taken by the applicant, such as taking a lease of property, beginning the course and securing a CAS, which suggested that it was certainly logical to have expected him to have lodged the application. The judge also recognised that the fact that the Secretary of State had the three passports, one current and two former passports, leant weight to that submission. Nonetheless, he concluded that the applicant had not discharged the burden upon him to show that the application had been made.
13. The judge then considered and rejected two further submissions which at the time were premised on the assumption that the application had not been made so that the only focus of attention was the later refusal on 27 August. The first was that the Secretary of State should make further inquiries because the university had sent a letter to the applicant saying that it would keep a place open for him. As the judge pointed out, this was not a matter which concerned the Secretary of State: the rules are clear and mandatory, there was no CAS and there was no basis for saying that any further steps should have been taken. A related argument was that the Secretary of State should have exercised a discretion outside the rules. The judge was not convinced that there was any discretion but in any event there was nothing untoward in this application which would have led the Secretary of State to conclude that this was an exceptional case warranting the exercise of any discretion.
14. The grounds of appeal, in effect, are that the judge erred in each of these conclusions, although, as I have indicated, the only ground on which leave has been given is the first ground, which submits that the judge was wrong to find that no application had been lodged with the Secretary of State in April..

17. Was there an application?

15. Mr Malik runs five arguments why this ground should fail. Four of them are, as Mr Malik accepted, technical arguments which all involve the submission that the appellant cannot succeed in this appeal even if he did, as he alleges, make his application in April to the Secretary of State. The final ground is the submission that the judge below was entitled to find on the evidence that no application had been made.
16. I will deal with the other four grounds first. They are all, in my view, deeply unattractive and all will fail. First, Mr Malik says whether or not an application was lodged is now academic since the decision under challenge is the later application lodged in July. So even if there was an earlier application in April which would mean that the applicant was not an illegal over-stayer, he did not have a valid CAS at the time when the second application was submitted and therefore his application was in any event bound to fail.
17. In my judgment, this argument is disingenuous. The refusal to grant the later application is inextricably linked to the question whether the first application was properly lodged. If, as the appellant submits, the original application was properly lodged in time, it would overcome both obstacles which led to the Secretary of State refusing the second application. The applicant would not have been an over-stayer because the application was made before leave had expired and there was a valid CAS in force at that time. Moreover, the Secretary of State would have been obliged to determine this application.
18. In my view, the judge below acted on the assumption that if an earlier application had been lodged, that would have undermined the decision with respect to the later application. I think the judge was right to adopt that analysis. The grounds of judicial review make it clear that one of the complaints was the refusal or failure of the Secretary of State to consider an application made on 17 April. The clear implication was that a valid application had been lodged and the court had to determine that issue.
19. The second, and to some extent related, argument is that in any event there was no purpose now in determining that question since the applicant had returned to Nigeria. The relief which he seeks is leave to remain. That can only be granted to someone who is already in the country and so it is not open to the Secretary of State to take that step and grant that relief.
20. That is not, in fact, the relief which the applicant seeks. But in any event, this is only a point about remedies. If the application has merit as a matter of substance, the court is empowered to provide such relief as it appropriate whether specifically raised in the judicial review claim form or not.
21. The third ground is that the proper route for raising this matter was to appeal the Secretary of State's decision to the First-tier Tribunal. In support of this argument, Mr Malik referred to the decision of the Upper Tribunal in the case of R (on the application of Khan) v Secretary of State for the Home Department [2015] UKUT 00353 (IAT).
22. I do not dissent from the proposition that this may in some cases be the appropriate route, particularly where there are issues of fact in dispute. But there are a number of reasons why I would reject that submission now. First, and fundamentally, the point was not raised below and it is too late to raise it before this court. But, in any event, any appeal must be against an immigration decision and the central issue here is the question whether an application was lodged and not considered. I do not see how the failure to determine an application which the Secretary of State says never existed can properly be described as an immigration decision. It is true that the later refusal on 27 August is an immigration decision but the Secretary of State told the applicant in unambiguous terms that he had no right of appeal. It hardly lies in the Secretary of State's mouth now to say that this is precisely what he should have done.
23. The final preliminary objection rests on the fact that when the applicant returned to Nigeria he attended the voluntary departure unit at Becket House and he signed a disclaimer. This confirmed that he was "given the opportunity to access legal advice" and that he wished "to withdraw any and all outstanding claims for applications I make to stay in the United Kingdom". He also confirmed that he wished "to formally withdraw my appeal/judicial review application". The passports were returned to him at that stage and he left the United Kingdom.
24. It is not clear to me that he would have been granted these passports at all had he not been willing to sign this disclaimer. In any event, Upper Tribunal Judge Hanson referred to this disclaimer in his judgment but noted that all parties accepted that this did not constitute a withdrawal of the application for judicial review.
25. Mr Malik does not seek to question that finding. He says rather that the terms of the disclaimer also stated that the applicant wished to withdraw any outstanding claims or applications. He submits that this should prevent the appellant from seeking now to suggest that there was an outstanding application which he had made in April.
26. This argument, in my view, singularly lacks merit. It would be ridiculous to recognise that the judicial review claim can be pursued notwithstanding the disclaimer and yet to suggest that the question whether the original application was in fact made cannot be pursued as part of that application. It lies at the very heart of his complaint. In any event, again this was not a point advanced below and it cannot be raised now.
27. In this connection I should add that Mr Malik also relied upon Rule 34J of the Immigration Rules, which provides as follows:

i. "Where a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been determined, be treated as withdrawn as soon as the passport is returned in response to that request."

28. The short answer to that provision, in my view, is that the Secretary of State was not considering any application in relation to the alleged application lodged in April because he did not accept that the application even existed.
29. I turn then to the principal issue, namely whether the judge below was entitled to conclude on the balance of probabilities that no application had been made.
30. I recognise, as Mr Malik submits, that it is unsatisfactory that the applicant has not himself attested to what he submits occurred. His mother has written a detailed letter setting out what she had been told. But that is all second hand. Moreover, as I said, the applicant kept no copy of the application, nor any record of the fact that he had sent it by special delivery.
31. As against that, there is every reason why the applicant would have wanted to lodge his application in time, as the Upper Tribunal Judge recognised. They included the fact that he had applied to be admitted to the course at BPP, he had acquired a new CAS,that he had taken a lease on the flat and he understood the need for a timeous application to the Secretary of State.
32. These factors would not of themselves establish the case for him. But the critical feature, in my view, remains the wholly unexplained fact that the Secretary of State came into possession of his three passports: the current one and two older ones. And why, if they were unconnected to any application, were they not sent back to him? There has been no satisfactory answer to those questions. They were found in the passport bank in north London. Of course, it is possible that they were sent to the Secretary of State without any other documentation. But that seems extraordinarily unlikely. And the fact that they were sent to the passport bank where passports are apparently sometimes sent in order to keep them safe would suggest that it was assumed that there was something which needed to be resolved before they were returned to him. Otherwise, I would have expected them to be sent back. Alternatively, if there was any good reason for keeping these passport (and it was suggested that possibly there might have been), then the Secretary of State would at least have had to write to the appellant telling him that she had the passport and why she was retaining it. That did not happen.
33. For these reasons, I consider that the only proper inference is that the Secretary of State did receive an application which somehow was lost. With respect to the judge below, I do not think he gave sufficient weight to the reason why the Secretary of State both had, and had retained, these passports.
34. Mr Malik also submitted that the claim was in any event bound to fail because on the applicant's own admission the appellant had sent his application to the office at Croydon and they ought to have been sent to the office in Durham.
35. That was not a matter that was raised below. But, in any event, the Secretary of State should have replied to the appellant and either told him that the application was invalid because it had been sent to the wrong place or perhaps sent it on to Durham herself. In these circumstances, I do not accept that that is a good reason for concluding that no valid application was made ot would have been made in time had that particular error been identified and notified to the appellant.

39. The alternative grounds

36. As I have mentioned, there were two alternative grounds in respect of which leave was refused. One was that the Secretary of State should had made further inquiries before rejecting the application and the other that she had a discretion to consider the application outside the rules. We were taken to a number of authorities which sought to demonstrate that in an exceptional case fairness might require the Secretary of State to make further inquiries before rejecting a claim and that there is an exceptional discretion which could in principle be exercised.
37. But, as Mr Balroop, counsel for the appellant, frankly and properly conceded, these steps would only be required in very exceptional cases. They could not conceivably apply here unless at the very least the appellant could show that he had lodged the initial application, they would not remedy the application that was made in July. He wanted to advance these arguments because he thought it was necessary in order to secure effective relief.
38. In my view, appropriate relief can be granted without relying on these submissions and I will not consider them further, save to say that I think they face formidable difficulties.

43. Relief

39. So I turn to the question of relief. This is technically an appeal against refusal to grant permission for judicial review. But if we upheld the appeal we have jurisdiction to go on and decide the application for relief (see section 68 of the Tribunals, Courts and Enforcement Act 2007).
40. The relief sought is, firstly, a mandatory order requiring the Secretary of State forthwith to consider the application submitted by the claimant dated 17 April, an order reversing the decision dated 27 August 2013, and an order compelling the Secretary of State to grant the Secretary of State a right of appeal in country in the event of a refusal of the application dated 17 April 2013.
41. We should, in my view, quash the decision of 27 August. But it is unrealistic to believe that the Secretary of State can now consider the application dated 17 April 2013. We do not know precisely what that application considered, we do not know whether BPP still has this course available for him or indeed whether he would still wish to take advantage of studying on that course or whether, given the passage of time, he even wishes to study in the United Kingdom at all.
42. In my judgment, I think that it would be appropriate, however, to declare that he is entitled to be treated as though he had not overstayed. In addition, it is not clear to the court whether or not he might be prejudiced if he has to make a fresh application to study from abroad or whether he would be treated in precisely the same way as if he were to make that application in this country.
43. In those circumstances, I think that the appropriate remedy would be the direct the Secretary of State to allow him to enter into the United Kingdom and for him to have a period of time, which would normally be 60 days I understand, in which he can seek to be accepted on a course of study with the appropriate CAS and make an application to the Secretary of State together with the relevant fee and the other documents.
44. Accordingly, I would grant permission to apply for judicial review and as a matter of substance I would grant the application and I would grant the relief which I have just indicated. I recognise that it is a matter of discretion whether we require the Secretary of State to allow him to come back into this country but in the particular circumstances it seems to me that that is the appropriate remedy that we should grant.
45. LORD JUSTICE FLOYD: I agree and I agree with the order that my Lord has proposed.
46. LORD JUSTICE VOS: I agree with the judgment of Elias LJ as to the first ground of appeal. I do not think we need to go on to consider the two additional grounds for the reasons that he has given. I only add these few words because it seemed to me during the course the argument that the Secretary of State's position was an inappropriate one. It is one thing to apply the Immigration Rules fully and precisely; it is another thing to take points which lead inevitably to an unjust result in circumstances where the Secretary of State is in no position to contend that there is any other explanation for what occurred other than an error in her own department. Good government requires the ability to make sound judgments in the defence of litigation. In this case, I asked Mr Malik expressly what the Secretary of State suggested might have happened on the basis of the facts if, as she submitted, the case that the appellant had sent his application for leave to remain on 17 April 2013 were to be rejected. He could not answer that question. In short, no explanation was offered as to how, even possibly, the appellant's three passports might have ended up in the department's north London passport bank on 25 April 2013 if they had not been sent to the department's Croydon office on 17 April 2013 as the appellant contends. Indeed, the suggestion that the Croydon office uses the north London passport bank as a depository for passports was not resisted. It would have been fanciful to suggest that the appellant sent his passports unaccompanied by an application to the Secretary of State. In this state of affairs, any fact-finding tribunal asked to consider whether the appellant had shown on a balance of probabilities that the application had been made, whether defective or not, would, I think, have had to conclude that it had. This conclusion, I venture to suggest, could and should have been reached by the Secretary of State before she decided whether to defend this application. Had she done so, she would have realised that many of the points that were being taken on this appeal lacked merit, as my Lord has said.
47. Leaving aside the factual argument, each of them was a technical point that would result in a most serious unfairness to the appellant if it succeeded because it placed him in what I described in argument as a catch-22 situation. First, it was suggested that the May 2013 application was anyway bound to be rejected whether the applicant was an overstayer, i.e. whether or not he had actually submitted an earlier application, because it was not accompanied by a valid CAS. That argument seeks to take advantage of the Secretary of State's loss of the application because the appellant could not send a valid CAS once his previous one had expired by reason of the non-receipt by the college of the Secretary of State's acknowledgement of his earlier application.
48. Secondly, it was suggested that the appellant ought to have appealed the second decision to the First-tier Tribunal asking for a preliminary issue to be determined as to the making of the earlier application. But the August 2013 decision letter told the appellant expressly he had no right of appeal and he must leave the country at once or commit a criminal offence. As a result, he left. The idea that he ought to have appealed a decision he was told he could not appeal seems to me to place the appellant in an impossible position.
49. Thirdly, the Secretary of State argued that the 17 April 2013 application was historic. First, because it had been superseded by the May 2013 application. Secondly, because when the appellant left the United Kingdom he had been required to sign that he was withdrawing all extant applications.
50. As to the earlier application being superseded, it seems to me that the contention seeks to put the appellant in a wholly invidious position. The appellant could not succeed on the application that the Secretary of State lost, even though she had, the passports and immediately abandons that application and the consequences of it, namely that he was not an overstayer, when he makes a new application. As to the withdrawal of the earlier application by the disclaimer that the appellant signed in order to obtain the return of his passports, that point is equally extraordinary. The Secretary of State told the appellant he must leave the country, so he attended the voluntary departure unit to be told for the first time that the Secretary of State had his passports. To obtain their return, he is required to sign immediately that he will withdraw all applications and all claims. He does so, only to find that the Secretary of State use that declaration to oppose his claim that he had indeed submitted the original application when his claim that he had was supported by the presence of the passports being in the hands of the Secretary of State, they only having been discovered as a result of his complying with the Secretary of State's own request, or demand, that he leave.
51. In my judgment, none of these points should have been taken. Of course the Secretary of State can rely on the Immigration Rules but not in order to put an appellant in a no-win position where every point taken is only open to her because of an error in her own office. It would have been better if the Secretary of State had considered the approach she would adopt to this application for judicial review carefully when it was made. Had she done so, I am sure she would have realised that the defence lacked merit and a satisfactory conclusion could have been offered to the appellant long ago.
52. I entirely endorse what Elias LJ has said about the appropriate relief that should now be granted. I only add that it is a shame that this promising young man's studies have been interrupted for so long by this unfortunate state of affairs.