England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Ms D K GILL (Sitting as a Deputy High Court Judge)
[2013] EWHC 4401 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/01/2016

LORD JUSTICE CHRISTOPHER CLARKE:

1. The issue in this case is whether the appellant was entitled to the benefit of the leeway provided by the case of Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC) in relation to students whose Tier 4 (General) sponsor ceases to run the course on which they are enrolled and whether that case was rightly decided.

The facts

2. On 20 June 2010 Hammad Raza, the appellant, was granted leave to enter the United Kingdom as a Tier 4 (General) student. That leave was valid until 14 April 2012. On 13 April 2012 he applied for further leave to remain as a Tier 4 (General) student. At that time he had not arranged to take an English language test nor did he have a Confirmation of Acceptance for Studies ("CAS") number. On 9 May 2012 that application was rejected as invalid by the Secretary of State ("SOS") because the appellant had failed to complete certain mandatory sections in the application form.
3. On 25 June 2012 the appellant obtained a CAS at the Business and Computing College of West London for a course starting on 2 July 2012 (for which the course fee paid was £ 2,200) and a CAS number was assigned to him. On 28 June 2012 he submitted a fresh application for leave to remain as a Tier 4 Student.
4. At some time on or before 24 October 2012 the appellant's Tier 4 sponsor surrendered its Tier 4 licence. As a result his CAS number was cancelled on that day by the UK Border Agency. On 7 November 2012 the SOS refused the application of 28 June 2012.
5. On 6 December 2013 the appellant applied for permission to apply for a judicial review of that refusal. On 18 July 2013 HH Judge Pelling QC refused him permission on the paper. On 26 November 2013 Deputy High Court Judge Gill refused permission following an oral hearing. The appellant applied to the Court of Appeal for permission to appeal. That was refused on paper by Lord Justice Elias on 11 April 2014. On 2 July 2014, following an oral hearing, Lord Justice Longmore granted permission to appeal limited to ground 1 of the grounds sought to be argued namely that the Court failed to apply the principle established in Patel.
6. In order to qualify for leave to remain as a Tier 4 (General) Student under Rule 245ZX of the Immigration Rules the applicant must have a minimum number of 30 points under paragraphs 113 to 120 of Appendix A and a minimum of 10 points under Appendix C. Under paragraphs 113-115 of Appendix A the criterion for an award of 30 points is that the applicant has received a CAS. Paragraph 115A provides that in order to obtain points for a CAS the applicant must provide a CAS reference number.

Patel

7. In Patel the appellant applied on 18 November 2009 under the points based system for further leave to remain on the basis of a sponsorship letter from the Lyceum Academy. At that date the Academy was a sponsor approved by the Home Office. After that he heard nothing more until he received a notice of decision dated 5 March 2010 refusing his application on the basis that the Academy had been removed from the list of approved sponsors. As a result he had no sponsorship letter capable of earning him 30 points. The Academy had been removed from the list either on that day or shortly before and the appellant was wholly unaware of this until he received his refusal letter.
8. Mr Patel had entered the UK on 8 September 2007 and had been granted leave to enter as a student until 30 November 2009. His application on 18 November 2009 for further leave to remain was, therefore, made before the expiry of his original leave. As a result of the operation of section 3C (2) (a) of the Immigration Act 1971 his original leave was extended until that application was decided or withdrawn.
9. In paragraph 19 of its decision the Upper Tribunal said this:

"19 The salient facts in the present case are as follows:-

1) The appellant was lawfully present in the United Kingdom with leave to remain as a student and was a bona fide student.

2) He made a bona fide application for an extension of stay as a student at a college which was an approved sponsor at the time of the application;

3) Unbeknown to the appellant the college was removed from the list of approved sponsors by the Home Office during the time it was considering the application;

4) Removal of the college from the list of sponsors was taken at about the same time as the decision to refuse the application, there was therefore no opportunity for the appellant to be informed of the consequences on his application of the respondent's action."

10. The Tribunal drew attention to the fact that refusal of leave to remain was a very serious step for the appellants. (The appellants were husband and wife. The outcome of the wife's application was dependent on the success of that of her husband and the judge used "appellant" to refer to both). Subject to a successful appeal their leave to remain would expire and their continued presence in the UK would be unlawful. There were statutory restrictions on what could be submitted post decision in certain classes of case and a subsequent application could not by definition comply with the Immigration Rules since the applicant had no leave to remain. Nor would there be a right of appeal.
11. In paragraphs 22 - 25 the Tribunal said this:

"22 Where the applicant is both innocent of any practice that led to loss of the sponsorship status and ignorant of the fact of such loss of status, it seems to us that common law fairness and the principle of treating applicants equally mean that each should have an equal opportunity to vary their application by affording them a reasonable time with which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford sixty days for such application to be made.

23 Although we accept that there is no such policy for refusal cases, fairness requires that such cases be treated in broadly the same way. The applicant must be given an equal opportunity before refusal of application to amend it in the way we have described. This was clearly not done in this case. The Home Office knew that it had suspended the college in January 2010 but no one else did. The applicant could not have known that subsequently the college's status as an approved sponsor was revoked before his application for an extension of stay was decided.

24 It is obviously unfair for the Secretary of State to revoke the college's status after the application has been made when it was an approved sponsor and not to inform the applicant of such revocation and not afford him an opportunity to vary the application.

25 None of this applies where the applicant has not been a bona fide student at the college where he is seeking to extend his stay, or where he has participated in the practices that may have led the college to lose its sponsorship status, or where he has had actual knowledge of the cessation that the termination of the college's status as a sponsor either before the application for an extension of stay was made or shortly thereafter and when he had adequate opportunity to amend the application by seeking to substitute an approved college for an unapproved one."

12. The Tribunal decided that the decision of the SOS was not in accordance with the law because it was unfair. It laid down guidance for the future in the following terms:

"For the future, having clarified the requirements of fairness and how they are to be met in an individual case, we would expect the UKBA in a case of this kind where the particular circumstances identified at para [22] above are met to inform the applicant that the college is no longer on the approved list of sponsors and that a period of sixty days will be allowed for any variation of the application that the applicant may wish to make before it is determined. If the applicant fails to respond to the invitation there has been no breach of the duty of fairness."

13. At the hearing of the appeal Mr Zane Malik for the SOS invited us to hold that Patel was wrongly decided. (I note in this connection that in Patel the Presenting Officer did not seek to oppose the appeal). It was not apparent to me from his skeleton argument that that was what Mr Malik sought to do, although paragraph 18 of the skeleton suggested that it had been overtaken by subsequent cases of the Court of Appeal and was interpreted by the appellant in his skeleton as raising the issue whether the principle establishes in Patel were good law in the light of those authorities. At the lowest, he submitted, the head note which included the following:

"2 Where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined."

was in too absolute terms since it was material to consider what the student knew or ought to have known (and when) about what was happening at the college. I shall assume for the moment that Patel was correctly decided.

Discussion

14. There is an important difference between the present case and Patel. In the present case the appellant's leave to remain came to an end on 14 April 2012 as his invalid application of 13 April 2012 did not extend his leave: see s 3C (2) (a) of the Immigration Act 1971: Iqbal v SSHD [2015] EWCA Civ 838. He was not, thereafter, "lawfully present in the United Kingdom with leave to remain as a student". The first of the salient facts set out in Patel was therefore absent.
15. Mr Darryl Balroop for the appellant submits that this does not matter. The kernel of the Tribunal's decision in Patel lies in paragraph 22. It sets out the circumstances in which fairness requires that an applicant should be given an opportunity to vary the application and identify a new sponsor. Those circumstances neither specify nor require that the applicant is not an overstayer. The circumstances defined in that paragraph exist in this case; and the unfairness which in Patel mandated the provision of an opportunity to find a new sponsor is equally applicable here.
16. I do not accept this. There is an important distinction between the circumstances in Patel and those of the present case. In Patel the applicant's leave to remain was in force. He was applying for a variation of that leave and, in the particular circumstances of that case, fairness required that in dealing with that application the SOS should afford him a further opportunity to vary it. If the SOS declined the application without doing so his status would be transformed from lawful resident to unlawful overstayer.
17. By contrast in the present case the applicant had after 14 April 2012 no extant leave to remain. He was not asking to vary a leave which he already had: that leave had expired. He was making a fresh application for a grant of leave to remain. If his application was refused his position would not change from lawful resident applying for a variation to unlawful overstayer making a fresh application for leave to remain. He was already an overstayer. That would remain the position if the appellant was given a 60 day opportunity to find a new sponsor. It does not seem to me that fairness required the Secretary State to give him a third bite at the cherry.
18. Jay J reached the same conclusion in a case where the material facts were very similar to those of the present case: R (Muhammed Ali) v SSHD [2014] EWHC 4393. Mr Balroop submits that that case was wrongly decided. I disagree.

Policy Guidance

19. The UK Border Agency has issued Policy Guidance on Tier 4 of the Points Based System which is to be used for all applications made on or after 6 April 2012. It includes guidance as to the position if a student's licence is revoked when the student has an application under consideration with the UK Border Agency. That guidance includes the following:

"If the student was not involved in the reasons why the Tier 4 sponsor had their licence revoked we will delay the refusal of his/her application for 60 days to allow the student to regularise his/her stay or leave the UK. The action a student can take to regularise his/her stay in the UK depends on what leave he/she has."

20. The guidance then goes on to consider the position "if the student still has at least 60 days permission to stay remaining..."/"If the student's permission to stay has expired while he/she was awaiting a decision on his/her application ..."/"If the student's permission to stay will expire in less than 60 days". In each case the guidance provided for a delay of the refusal of the application for a 60 day period. None of that is applicable here. The appellant's permission to stay expired on 9 May 2012. In relation to his application of 28 June 2012 none of the situations covered by the guidance applied.
21. Mr Balroop relied on a further consideration. There was change in the Immigration Rules as set out in a Statement presented to Parliament on 13 June 2012. Change No 69 deleted existing rule 245ZX (l) and inserted a new one which was to read:

"The applicant must be applying for leave to remain for the purpose of studies which commence within 28 days of the expiry of the applicant's current leave to enter or remain or, where the applicant has overstayed, within 28 days of when that period of overstaying began."

22. Change No 70 added a new subparagraph;

"(m) The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded."

23. Pursuant to the Statement those changes were to take effect on 1 October 2012. However, if an application for leave to remain had been made before 9 July 2012, and the application had not been decided, it was to be decided in accordance with the rules in force on 8 July 2012. Accordingly, in the present case the application of 28 June 2012 was to be decided in accordance with the rules in force before the change. Mr Malik on behalf of the Secretary of State accepted that prior to the change in the Rules it was incumbent on the Secretary of State to decide a fresh application such as that made on 28 June 2012 in accordance with the Rules and that she was not entitled to decide against the applicant simply because he was an overstayer. If the applicant then had the necessary points he would (subject to general grounds of refusal under Part 9 of the Rules) secure leave to remain.
24. However, after the change, any fresh application would be met by new rules (l) and (m). The applicant became an overstayer on 15 April 2012. Any application made later than 28 days after that would fall foul of both rules. The effect of the change in the rules is thus that any application to remain made after 9 July 2012 would be doomed to failure.
25. That is subject to the safeguards contained in the Explanatory Memorandum to the Statement of Changes which includes the following:

"7.18 There will be a number of safeguards to ensure that the amended rules are fair and proportionate:

Where an applicant submits an application before their previous period of leave to enter or remain expires, but the application is rejected as invalid after their leave expires, the 28-day window in which the application may be submitted as an overstayer will start from the date on which the application was rejected, rather than when leave expired.

Caseworkers will continue to have discretion to consider exceptional cases. Applicants who have overstayed by more than 28 days may provide evidence of exceptional circumstances which prevented them from submitting their application in-time."

It seems to me unlikely that the appellant would be able to bring himself within these provisions.

26. I do not regard this as altering the position. It is the fact that Mr Raza is an overstayer which distinguishes his position from that of Mr Patel. The change introduces a new disadvantage for overstayers. That is a misfortune for Mr Raza; but it is not one which affects the fact that he falls into a different category from that into which Mr Patel falls.

Is Patel good law?

27. Mr Malik took us on a tour through the authorities with a view to showing that it could no longer be relied upon.

Naved

28. In Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC) the question was whether the appellant was entitled to be treated as having an "established presence" as a student in this country on the basis of the course he had already taken. The application form did not require him to produce documentary evidence that he had completed his previous course and he did not do so. Someone at the Home Office made inquiries and wrongly took the response from the college to mean that the applicant had failed to finish the course. No contact was made with the applicant before he was informed that his application was refused. The Upper Tribunal held that his treatment had been conspicuously unfair. It referred to Patel; Thakur (PBS decision – 'common law fairness') Bangladesh [2011] UKUT 151 (IAC); and Sapkota v SSHD [2011] EWCA Civ 1320 and concluded that the decision of the SOS was contrary to law.

EK (Ivory Coast)

29. In EK (Ivory Coast) v SSHD [2014] EWCA Civ 1517 the appellant had a CAS at the date of her application for leave to remain. Before the SOS made her decision the college withdrew the letter as a result of an administrative error. Naved was referred to, but not Patel. This Court by a majority (Lord Justice Floyd dissenting) held that there was no breach by the SOS of her duty to act fairly. She was not responsible for the actions or omissions of the College. In essence the majority decided that the PBS was intended to simplify the procedure for (inter alios) students so as to enable the processing of high volumes of applications in a fair and reasonably expeditious manner. The duty of fairness ought not to be applied in such a manner as to undermine its intended mode of operation. It was inherent in the scheme that the applicant took the risk of an administrative error on the part of a college.
30. Lord Justice Sales observed at [38]:

"[38] The authorities in which the general public law duty of fairness has been found to impose additional obligations on the Secretary of State in the context of the PBS have been materially different from the present case. It has been held that where the Secretary of State has withdrawn authorisation from a college to issue CAS letters, fairness requires that she should give foreign students enrolled at the college a reasonable opportunity to find a substitute college before removing them: Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC); Thakur (PBS Decision – Common Law Fairness) Bangladesh [2011] UKUT 00151 (IAC); and see Alam at para. [44]. But that requirement was found to arise where there had been a change of position of which the Secretary of State was aware, and indeed which she had brought about, in circumstances in which the students were not themselves at fault in any way, but had been caught out by action taken by the Secretary of State in relation to which they had had no opportunity to protect themselves. In the present case, by contrast, the Secretary had no means of knowing why the Appellant's CAS letter had been withdrawn and was not responsible for its withdrawal, and the fair balance between the public interest in the due operation of the PBS regime and the individual interest of the Appellant was in favour of simple operation of the regime without further ado."

31. This is not a decision casting doubt on Patel, let alone one that expressly or impliedly overrules it. It cites Patel, Thakur and Alam v SSHD [2012] EWCA 960, which referred to Patel without disapproval. It confirms that what fairness requires is necessarily fact and context specific and distinguished Patel on the facts. There is, as Sales LJ pointed out, a difference between a refusal of leave to remain where the SOS has herself withdrawn authorisation and then refuses further leave to remain and a case where the SOS has received information, which she has no reason to doubt, refuses the application and then learns of some error in what she was told.
32. In EV Lord Justice Sales considered Naved and disagreed with the observation in it that:

"Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known, failing which the resulting decision may be set aside on appeal as contrary to law …"

if that was intended to lay down a principle formulated in that bald way.

33. He pointed out that in Naved the Home Office had sent an email to the college referring to Mohammed Naved and had received a reply from someone, whose position with the College was not stated, saying that Naveed Ahmed had been enrolled but had not completed the course. The Home Office assumed that the reply related to Mohammed Naved, and did not notify the applicant of the reply or ask for his comments. It was, as Sales LJ pointed out, a case where the Home Office bore substantial responsibility for the error. The Home Office received a confusing response to it its inquiry which it failed either to read properly or to check, and then failed to give the applicant any opportunity to adduce documentary evidence of a standard type, which the form had not required, in order to resolve the dispute. He said in terms that nothing said in the judgement itself in Naved, as opposed to the headnote, was inconsistent with his conclusion.

Pokhriyal

34. In Pokhriyal v SSHD [2013] EWCA Civ 1568, which was not cited in EV, Lord Justice Jackson at [69] drew an analogy between that case and Naved, of which he may be taken to have tacitly approved.

Kaur

35. In Kaur v SSHD [2015] EWCA Civ 13 the first question was whether or not information provided by the course provider had confirmed that the course complemented the applicant's previous course at the same level, to which the answer was that it did not. The second question was whether the SOS was obliged to make further inquiries of the academic institution on the basis of Naved which was applied in Pokhriyal.
36. In answer to the second point the court ruled that [42]:

"both Rahman^[1] and EK (Ivory Coast) are binding authority on the question whether the Secretary of State should, as a matter of fairness, give notice to an applicant for leave to remain or the Tier 4 Sponsor that she considers there to be a deficiency in the CAS before making an adverse decision on that basis. There is no such obligation"

37. I cannot regard that as casting disapproval on, much less overruling, Patel. The fact that there is in general no duty to give notice of what is believed to be a deficiency in the CAS before making an adverse decision does not mean that there may not be some cases where fairness demands that that the SOS should not refuse the application without further iniquity. I note that at [39] Lord Justice Burnett observed that the Court in EK did not question the decision in Naved itself.
38. Accordingly I do not regard Patel as having been impliedly overruled or so overtaken that, on its own facts, it is not good law. However, for the reasons which I have stated, I do not think it assists the appellant whose appeal I would dismiss.

Another obstacle?

39. Mr Malik submitted that there was a further problem for the appellant in that there was no evidence (which it was for him to adduce) that he was unaware that the licence had been surrendered until the refusal of his application by the SOS. As to that it would seem to me inherently likely that the surrender of the licence and the cancellation of the CAS took place within a short space of time and that the appellant was not aware that this was to happen before it did. However, in the light of the conclusion to which I have come I do not regard it as necessary to consider this question further.
40. Accordingly I would dismiss the appeal.

LORD JUSTICE BEATSON

41. I agree.

LADY JUSTICE ARDEN

42. I also agree.

Note 1   Rahman v SSHD [2014] EWCA Civ 11 where Naved was distinguished    [Back]