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))
THE HON MRS JUSTICE McGOWAN
Ref CO/5027/2016

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/02/18

Lord Justice Hickinbottom:

1. The Applicants seek permission to appeal against the decision of McGowan J dated 25 October 2016 refusing permission to proceed with their claim for judicial review of the decision of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge McGeachy) dated 9 September 2016 refusing permission to appeal against the decision of the First-tier Tribunal (First-tier Tribunal Judge Fenoughty) dated 17 February 2016 dismissing the First Applicant's appeal against the Secretary of State's refusal of his application for leave to remain as a Tier 4 (General) Student Migrant. The Second Applicant is the wife of the First Applicant, and her application for leave to remain is dependent upon his claim. For convenience, I shall refer to the First Applicant as simply "the Applicant".
2. On 5 August 2009, the Applicant was granted leave to enter the United Kingdom as a student until 17 April 2011, which was later extended to 11 August 2014.
3. On 8 August 2014, he made an application for leave to remain as a student, relying upon a Confirmation of Acceptance of Studies ("CAS") issued by Zaskin College on 7 August 2014 in respect of its Diploma Course in Strategic Management. The Applicant correctly completed the application process in respect of the college place, including paying the fees of £3,500; but, as the college was A-rated, he could not commence his studies unless and until he had obtained leave to remain.
4. On 1 December 2014, unknown to the Applicant, the college withdrew the CAS. He was given no notice of that withdrawal, and has still not been given any reason for it. The first the Applicant knew of it was when he received a letter from the Home Office dated 2 February 2015 notifying him of the decision to refuse his application for leave on the basis that he had no valid CAS, the letter saying that the CAS with the number he had given had been withdrawn by the college. I pause to note that the college not only refused to give the Applicant a reason for the withdrawal of his CAS, it also refused to refund him his fees. The college has now closed.
5. To qualify for leave to remain as a Tier 4 (General) Student under paragraph 245ZX of the Immigration Rules, an applicant has to meet certain requirements under a points-based scheme ("PBS"), including having a minimum of 30 points under paragraphs 113-120 of Appendix A to the Rules. To obtain those points, under paragraph 114 of that appendix, the Applicant is required to have a valid CAS. By paragraph 116, a CAS is not valid if the sponsor has withdrawn its offer of sponsorship since the CAS was issued. Therefore, under the Immigration Rules, where a sponsor college withdraws a CAS prior to the determination of an application for leave to remain as a Tier 4 (General) Student, the applicant will not obtain the required number of points to be successful. That is the basis upon which the Applicant's application was refused.
6. The Applicant appealed to the First-tier Tribunal against that refusal. One ground upon which he did so was that the Secretary of State had acted unfairly in the manner in which she had exercised her administrative powers in the Applicant's case in the sense described in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, because she did not contact the college to find out why the Applicant's CAS had been withdrawn. Had she done so, she would have ascertained that the withdrawal had no basis, and would have taken action against the sponsor. It was contended that, in the circumstances, the Applicant ought to have been notified by the Secretary of State that his CAS had been withdrawn by the college, and given him 60 days leave to remain to enable him to identify a new sponsor and vary or make a new application on the basis of a CAS from it, under the principles set out in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 211 (IAC). In Patel, it was held that, in circumstances in which a PBS application by a student failed because, between the date of the application and its determination, the relevant college's sponsors licence was removed by the Secretary of State, public law fairness required the Secretary of State to notify the student and allow him 60 days to identify a new sponsor and make a new or varied application. In this case, it was contended that that was the only in which unfairness to the Applicant be avoided.
7. The difficulty with that ground was that it had been considered and rejected by this court in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517, which doomed the ground to failure in this case. In EK (Ivory Coast), between the date of the application and the date upon which the Secretary of State determined it, as a result of an administrative error on its part, the relevant college withdrew the CAS letter upon which the applicant relied for her application for leave to remain as a student. At the time of her decision, neither the Secretary of State nor the college was aware that a mistake had been made; and the majority (Briggs and Sales LJJ, Floyd LJ dissenting) considered that she could proceed on the basis that the withdrawal was for good reason and that the sponsor had informed the student of its decision to do so. They held that the Secretary of State was under no obligation to make enquiries of the college or the student to ascertain the reason for the withdrawal of the CAS or for the student's representations on the issue. There had therefore been no unfairness in the public law sense at the hands of the Secretary of State; any unfairness to the Applicant resulting from the acts and omissions of the college.
8. In any event, in this case, Judge Fenoughty considered he was bound by EK (Ivory Coast), and rejected the ground of appeal to which I have referred.
9. The Appellant sought permission to appeal to the Upper Tribunal. One ground upon which he did so was new: he submitted that EK (Ivory Coast) was decided per incuriam because the court in that case had proceeded on the basis that the Secretary of State was unaware of the reason why the college had withdrawn the CAS, namely as a result of an administrative error. In fact, the Secretary of State would (or, at least, should) have been fully aware as to why the Appellant's CAS had been withdrawn, on the following basis.
10. The Tier 4 Guidance for Sponsors, prescriptive so far as sponsor colleges are concerned, under the heading "Sponsorship Duties", states, at paragraphs 5.111-5.112:

"5.111 You can withdraw a CAS that you have assigned to a student if they have not yet used it to support an application for a visa or an extension of stay. You must withdraw the CAS using the SMS and inform the student.

5.112 If a CAS is cancelled or withdrawn we will not refund your fee. Once a CAS has been cancelled or withdrawn, we will automatically refuse any application supported by that CAS."

"SMS" is a reference to the Sponsorship Management System used by the Secretary of State to manage application under the PBS.

11. The guidance makes clear that, where the student is in default of his obligations, the sponsor is under a duty to report that default to the Secretary of State. Paragraph 3.1 states that the Secretary of State has a duty to ensure that all sponsors discharge their responsibilities, and that a sponsor's act or omissions do not create a risk to immigration control. Paragraph 3.4 indicates that she will "always take action when [she] considers that a sponsor poses, or may pose, a risk to immigration control". Today before us, Mr Saini has pointed to the indication by Silber J in R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin) at [17]-[18] (approved by this court in R (Raj and Knoll Limited) v Secretary of State for the Home Department [2016] EWCA Civ 770 at [23(6)]), that, where the Secretary of State has reasonable grounds for suspecting that a breach of immigration control might occur as a result of an act or omission by a sponsor college, she "can, and indeed, should" take steps in relation to suspending or revoking sponsorship.
12. Thus, in the attempt to obtain permission to appeal to the Upper Tribunal, it was argued that, under the guidance, a college sponsor can only withdraw a CAS that has already been assigned to a student "if they have not yet used it to support an application for a visa or an extension of stay", or where the student has been at fault by (e.g.) failing to comply with his obligations. In those latter circumstances, the sponsor is required to report that default to the Secretary of State. Manual 5 of the SMS Manuals published by the Secretary of State, entitled "Reporting student activity", provides a print out of a computer screen on the SMS which concerns any withdrawal of sponsorship by the sponsor college. In addition to a field for "date sponsorship withdrawn", there is a further field, "Please give details". Those two fields are asterisked, showing that they must be completed by the sponsor when reporting the withdrawal of a CAS.
13. The Applicant contended that as a sponsor college must give reasons for withdrawing the CAS, which has to be by way of the SMS and which is required to include details of the withdrawal, the Secretary of State cannot properly argue that she did not know the reasons for the CAS withdrawal by the college. It was manifestly unfair for the Appellant – who denies any default on his part – not to have been told by the Secretary of State of the reasons for the withdrawal, and not to have had an opportunity to respond. Insofar as EK (Ivory Coast) suggests otherwise, the decision in that case was made per incuriam, because that court did not have the evidence that showed that the Secretary of State would or should have known that the CAS had been withdrawn by the college and the reasons for that withdrawal.
14. It was submitted that, in EK (Ivory Coast), it was critical to the majority's analysis that the Secretary of State did not know, or could properly be assumed not to have known, the reason for the withdrawal of the CAS by the college. At [38], Sales LJ said:

"But [in cases such as Patel], that requirement [to give the applicant an opportunity to find a substitute college] was found to arise where there had been a change of position of which the Secretary of State was unaware, and indeed which she herself 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 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." (emphasis added).

And Briggs LJ, at [56], said:

"… [T]he question whether the Secretary of State breached her common law duty to act fairly depends critically upon what her officials might be supposed to have known or considered likely at the time when, probably shortly before making a decision, the withdrawal of the CAS letter became apparent." (emphasis again added).

15. Without obviously engaging with that new ground, First-tier Tribunal Judge Lever refused permission to appeal, on the basis that the judge had followed EK (Ivory Coast) properly, and given reasons for doing so. Upper Tribunal Judge McGeachy agreed, essentially for the same reasons.
16. The Applicant sought permission to appeal from this court and, on 17 August 2017, Beatson LJ adjourned the application for permission into open court, whilst pointing out the challenge facing the Applicant as a result of EK (Ivory Coast): if it is fair not to give an applicant 60 days to find a new sponsor if the sponsor withdraws a CAS as a result of an administrative error, it is difficult to see why it is arguably unfair not to give a 60 day period where the CAS in fact been withdrawn by the sponsor. Thus, the application for permission to appeal has come before us. It is an appeal against the refusal of permission to proceed with a judicial review of a second refusal of permission to appeal to the Upper Tribunal, permission having been refused by both the First-tier Tribunal and the Upper Tribunal itself; and thus the Cart criteria (i.e. essentially the second appeals criteria) apply.
17. The core submission in the skeleton argument reflected the issue as raised in the application for permission to appeal. It was, as I understand it, to this effect. In EK (Ivory Coast), when making the relevant decision the Secretary of State's decision-maker of course knew that the CAS had been withdrawn by the college – that was the basis upon which the application for leave to remain was refused – but, Mr Saini submitted on behalf of the Applicant, in the analyses of the majority it was critical that the decision-maker could sensibly be assumed to have been unaware of reason for the withdrawal. However, reference to the guidance shows that, where a CAS is withdrawn by a sponsor college, the Secretary of State knows – or should be assumed to know – of the reason for the withdrawal, because the college has an obligation to notify both the fact of the withdrawal and the reason for it. The assumption on which EK (Ivory Coast) was decided was therefore incorrect; the decision in that case was per incuriam; and the matter should be revisited by this court, on the basis that the appeal is at least arguable and raises an important point of principle.
18. Before us today, Mr Saini developed a somewhat different, if parallel, argument. He submitted that (i) the sponsor was bound to report a withdrawal of a CAS to the Secretary of State; (ii) the only way in which that could be done was by completion of the SMS screen, and, as part of that process, the sponsor was required – by the guidance and the mechanics of the computer system – to give details of the reasons for the withdrawal; (iii) a sponsor could not withdraw a CAS after its submission; (iv) if it was so withdrawn, the Secretary of State was on notice that the sponsor had acted unlawfully; (v) the Secretary of State was then bound to take action in terms of suspending or revoking the sponsor's licence, which would then give the students affected a 60 day period to identify a new sponsor. He pointed out that the revocation of the sponsor's licence in this case took place only shortly after the withdrawal of the Applicant's CAS.
19. Those submissions were forcefully pressed, but, in my view, there are several flaws in them.
20. The first may be described as procedural. Rule 19(4)(a) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014 No 2604) requires a notice of appeal to the First-tier Tribunal to set out the grounds of appeal relied on. The issue now raised was not set out as a ground, and not raised before Judge Fenoughty, before whom the Applicant neither appeared nor was represented. No application has ever been made to amend the grounds to include the issue now raised as a new ground. It is true that the issue was raised in the application for permission to appeal to the Upper Tribunal; but permission was refused, on the papers, simply on the basis that Judge Fenoughty properly applied EK (Ivory Coast). Mr Saini could give no real – and, certainly, no compelling – reason why the procedure had taken the course that it did. We are considering only the lawfulness of McGowan J's order refusing permission to proceed with a judicial review of the Upper Tribunal's decision not to grant permission to appeal. It seems to me that there is a strong argument that, after the First-tier Tribunal determination, it was (and, a fortiori, is now) too late to raise this new ground.
21. However, in my view, there are more fundamental difficulties for the Applicant.
22. Dealing first with the submissions in the skeleton argument, in EK (Ivory Coast), whilst it is true that the reason for the withdrawal of the CAS by the college (i.e. as the result of a mistake) was not known to the Secretary of State – and Sales LJ referred to that uncontroversial fact – the analysis of the majority was not based upon the actual or assumed knowledge of the Secretary of State. It was based on the fact that the Secretary of State was not responsible for the withdrawal of the CAS.
23. In my view that is clear when the judgment of Sales LJ is looked at as whole. It is noteworthy that Briggs LJ, although giving a separate judgment, agreed with Sales LJ's conclusion "substantially for the reasons he [gave]" (see [53]). The thrust of Sales LJ's analysis was set out in [33]-[36], as follows:

"33. I do not consider that an approach by the Secretary of State which involves a simple check whether an applicant has in place a valid CAS letter at the time the decision is made on their application, rather than seeking to inquire further into the background if it appears that a CAS letter has been withdrawn, involves any unfairness to an applicant for which the Secretary of State bears responsibility. The PBS places the onus of ensuring that an application is supported by evidence to meet the relevant test for grant of leave to enter or remain upon the applicant, and the Immigration Rules give applicants fair notice of this. The essence of the CAS element within the PBS is that the Secretary of State relies on a check on certification by approved colleges, and does not have to investigate further. It is inherent in the scheme that an applicant takes the risk of administrative error on the part of a college.

34. Standing back to make a general observation about the context, it can be said that an applicant deals directly with their college in relation to sorting out acceptance onto a course and the certification of that fact, and so has an opportunity to check the contract made with the college so far as concerns the risk of withdrawal of a CAS letter. If a college withdraws a CAS letter, the applicant may have a contractual right of recourse against the college. The fact that there is scope for applicants to seek protection against administrative errors by choosing a college with a good reputation and checking the contractual position before enrolling is of some relevance to the fair balance to be struck between the public interest in the due operation of the PBS regime and the interest of an individual who is detrimentally affected by it.

35. In my view, the circumstances in which the PBS applies are not such that it would be fair, as between the Secretary of State (representing, for these purposes, the general public interest) and the applicant, to expect the Secretary of State to have to distort the ordinary operation of the PBS regime to protect an applicant against the speculative possibility that a college has made an administrative error in withdrawing a CAS letter, rather than withdrawing it for reasons which do indeed indicate that no leave to enter or remain ought to be granted. The interests of applicants such as the Appellant are not so pressing and of such weight that a duty of delay and inquiry as contended for by the Appellant can be spelled out of the obligation to act fairly.

36. In that regard, the present context is to be contrasted with that in Doody. In that case, what was at stake was the liberty of the subject, since the decision of the Secretary of State regarding the tariff to be set for life prisoners would determine the time within which no application for release on parole could be made. It was by reason of that major significance for a prisoner of the decision to be made affecting him that the House of Lords found that the duty of fairness required the prisoner to be given notice of relevant information and an opportunity to deal with it by way of representations before a decision was made. In the present context, however, the PBS regime is intended to minimise the need for making sensitive and difficult evaluative judgments of the kind that fell to be made by the Secretary of State in Doody and the interests of applicants which are at stake are of far less weight."

24. As Christopher Clarke LJ put it in R (Raza) v Secretary of State for the Home Department [2016] EWCA Civ 36 at [29], in essence, the majority in EK (Ivory Coast) decided that the PBS was intended to simplify the procedure for (amongst others) students, so as to enable the processing of high volumes of applications in a fair and reasonably expeditious manner; and the public law duty of fairness ought not to be applied in such a manner as to undermine its intended mode of operation. That too was emphasised by Burnett LJ (as he then was) in Kaur v Secretary of State for the Home Department [215] EWCA Civ 13 at [41], where he said that the PBS is "designed to achieve predictability, administrative simplicity and certainty… at the expense of discretion, that is to say it is prescriptive". I respectfully agree. That was the important backdrop to the decision in EK (Ivory Coast).
25. In summary, when making an application for leave, the PBS imposes a burden upon an applicant to provide specified supporting documents and information required by the Immigration Rules. That is a hard-edged requirement. One specified document for an application for leave to remain as a student is a valid CAS. If, at the time the application is considered, the specified documents and information are incomplete, then the Secretary of State is entitled to (and will usually in practice) refuse the application. Any court challenge to that refusal must be based upon either a breach of the Secretary of State's duty to act fairly or upon her failure to act rationally. We are only concerned with the former.
26. The authorities clearly establish that, as a general rule, the Secretary of State does not act unfairly in refusing an application under the PBS when, at the time the application is considered, it is not accompanied by all specified documentation. She is not under any obligation to make her own enquiries, or to notify or give the applicant an opportunity to rectify or comments upon deficiencies.
27. However, a departure from the rule may be justified and required. As I have indicated, it is insufficient to justify a departure merely because the Secretary of State might make inquiries to obtain absent documents or information. The system is intended to be robust, and the applicant generally bears the risk of documents or information being incomplete, even if he has done everything he could to ensure completeness. That is the ratio of the majority in EK (Ivory Coast).
28. But there is an exception to the general rule, when public law fairness requires a period of grace for an individual to identify a new sponsor; but the authorities make clear that that is confined to cases in which the problem that has arisen was of the Secretary of State's own making, e.g. if the Secretary of State revokes a sponsor's licence or a student's CAS. Patel provides an example. Another example, considered by Sales LJ in EK (Ivory Coast), was Naved v Secretary of State for the Home Department [2012] UKUT 14 (IAC). In that case, the applicant had provided information about his proposed course. Without telling him, the UKBA on behalf of the Secretary of State approached his college for confirmation of his having studied and completed the course. The college replied identifying a different person with the same surname, and saying that he had not completed the course. Neither the college or the Secretary of State noticed the error. The applicant had in fact completed the course successfully. Although the headnote to the case suggests the case may be authority for a wider proposition, in EK (Ivory Coast) Sales LJ identified the ratio of the case, namely that the Secretary of State bore substantial responsibility for the error which had occurred that resulted in leave being refused.
29. Mr Saini was unable to refer us to any case in which it has been held that the public law duty of fairness has been found to require the Secretary of State to make further enquiries of an application and/or grant an applicant 60 days in which to identify an alternative sponsor in circumstances in which she has not been responsible for the failure of an application for leave to remain under the PBS as a result of absence of specified documentation etc. In my view, EK (Ivory Coast), properly read, is clearly based upon such a requirement. The cases which refer to the point appear, at least, to proceed on the basis that some act or omission on the part of the Secretary of State that causes leave to remain to be jeopardised is a requirement (see, e.g., Raza at [33], Kaur at [39], and ISN v Secretary of State for the Home Department [2016] CSIH 6).
30. None of these cases suggests that it is sufficient if, in addition to knowing that a CAS has been withdrawn, the Secretary of State has also received from the college some details of the reasons for the withdrawal, without more. In my view, the possibility of such details being available to the Secretary of State is immaterial. In EK (Ivory Coast), if any reasons for the withdrawal of the CAS by the college had been entered onto the Home Office computer, there is nothing to suggest that those reasons should have put the Secretary of State on notice. The reasons would not, of course, have indicated that the withdrawal was as a result of a mistake. Similarly here, if any reason was given by the college to the Secretary of State there is no evidence to support the proposition that the reason, on its face, was obviously bad.
31. Therefore, where there is no valid CAS, the Secretary of State is entitled to refuse an application for leave dependent upon a valid CAS, without making any further enquiries, unless the refusal stemmed from her own actions or omissions. I am unpersuaded that it is even arguable that, here, the refusal did. I stress that she was under no obligation to investigate the reasons for the college withdrawing the CAS, even at during the period between application and determination. The broad duties upon her suggested in the policy guidance documents do not arguably give rise to an obligation upon her to make enquiries into why a CAS was withdrawn in an individual case. The Secretary of State bore no responsibility for that withdrawal; and, whatever had been reported by the college to the Secretary of State, she was under no obligation to make any enquiries into why the CAS had been withdrawn or to notify the Applicant of any reasons that the college had given her. That was a matter strictly between the Applicant and the college.
32. In respect of the broader ground developed before us today, I do not consider the obligations upon a sponsor to report (amongst other things) a withdrawal of a CAS, and the broad target obligation upon the Secretary of State to take action to ensure that sponsor's discharge their responsibilities can be combined and metamorphosed into an obligation upon the Secretary of State to take action towards suspension and/or revocation whenever a CAS is withdrawn post-application and prior to determination. As (I understand) it was accepted in relation to the main ground, it is self-evident that a sponsor is entitled, and may be bound, to withdraw a CAS at that stage where the relevant student has failed to discharge his or her obligations. In any event, whatever reason is given for the discharge of the CAS by the sponsor college – and even if no reasons are given – the Secretary of State is under no obligation to investigate or enquire into whether such withdrawal was lawful and appropriate in terms of the PBS itself. Such a requirement would fundamentally undermine one of the legitimate aims of the scheme, as stressed identified in cases such as EK (Ivory Coast) and Kaur, of achieving predictability, administrative simplicity and certainty, even at the expense of discretion.
33. In short, in my view, there is no arguable basis upon which McGowan J's decision to refuse permission to proceed was wrong, because she was clearly entitled to conclude that the proposed challenge to the refusal of permission to appeal to the Upper Tribunal was unarguable; nor do I consider that the argument that EK (Ivory Coast) was determined per incuriam, or is other than applicable to, and determinative of, this case as the tribunals and McGowan J found it to be.
34. For those reasons, subject to the agreement of my Lord Moylan LJ, I would refuse this application.

Lord Justice Moylan :

35. I agree.