England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		29 October 2003

1. MR JUSTICE MAURICE KAY: The claimant in this case is 18 years of age. He comes from Jamaica. He arrived in this country on 23rd December 2001 as a visitor and was granted six months' leave to remain. That would expire on 23rd June 2002. In February 2002, he applied to and was admitted by Blackheath Bluecoat School and he commenced studies for the GCSE. In May of 2002, he submitted an application for an extension of his stay so as to continue his studies. The application form was signed by him and dated 15th May 2002. It is quite a lengthy document and the claimant attended to most parts of it. He gave details of a personal nature and his address. He advised that he had started his studies in February 2002 and that they were to last for a year. He identified the school and the course. Paragraph 3.5 of the form posed the question:

"State the progress you have made in your course of study including details of any relevant examinations you have taken and any qualifications you have acquired since you were last given leave to enter or remain as a student. Continue on a separate sheet if necessary."

The claimant did not answer that question on the form. Question 4.1 invited the claimant to tick an appropriate box so as to identify the sort of course that he was intending to study. He did not tick any of those boxes. Section 5 of the form was concerned with his residential arrangements. He completed it so as to make clear that his home in London was owned or rented by a relative or friend, that he did not have to pay any rent, that he was not receiving sponsorship from any government but that a relative or friend was regularly giving him money. The relative or friend in question I understand to be his aunt. Having answered that last question in the affirmative, he was then asked, "how much money do you receive each month?" He did not answer that question, but did make it clear that he was not in receipt of any public funds. Section 7 of the form, headed "Documentary Evidence" is a detailed page or more identifying documents which have to accompany the application. One of its requirements is in the following terms:

"A document (or documents) showing that you have the financial resources to maintain and accommodate yourself and any dependants without recourse to public funds. The document(s) must be formal documents such as bank statements, a building society passbook, or wage slips ... If a relative or friend is supporting you, then you may provide a letter from him/her confirming this together with formal documents showing his/her financial resources."

Attention is then drawn to Note 3, which states:

"We are unlikely to grant your application unless the documents establishing the financial resources available to you cover the last three months."

There is also provided to an applicant a checklist in relation to the completion of the application form, which reminds an applicant to complete all applicable sections of the form correctly as specified, and advises that if the applicant is presently unable to provide any of the documents specified in Section 7, he should give an explanation and say when he expects to be able to provide them.

2. When that application was submitted, it was accompanied by some other documents. One was a letter dated 13th May 2002 from the claimant's aunt, Christine Campbell, with whom he was living. The letter stated that the claimant was currently studying maths, english and science at Blackheath Bluecoat School, that he would like to continue the courses, that she was more than happy to continue to sponsor him during his time at that school, and that she was enclosing a bank statement. It added that if any further information was required, she could be contacted by telephone. The face of the letter also suggests that the claimant's passport was enclosed, as were a bank statement and a letter from the college. The bank statement is a single sheet statement dated 20th April 2002, relating to an account at the Woolwich in the name of Christine Campbell, which was in credit on that day to the tune of £4,028.85. The letter from the school, dated 10th May, confirmed that the claimant was a full-time student studying GCSEs and that it was envisaged that he would remain there until July 2003. In addition, there was a document which seems to have emanated from the school and to have been generated by a computer giving details of class attendance for the claimant. It showed that overall he had attended 87 per cent of his classes.
3. On 12th June 2002, an official of the Secretary of State wrote to the claimant acknowledging the receipt of the application. The next relevant document is a document from the Home Office headed "Reason(s) why your correspondence is not a valid application." It refers to the application in May and states that the application form had not been completed in full, identifying the incomplete sections and also stating that not all the required documents had been enclosed. There is a handwritten addendum at the side referring to "3 months' bank statements" and posing the question of whether fees were payable for the particular course.
4. That document was almost certainly dispatched by the Home Office by 29th June at the latest. I say that because there is amongst the papers a returned letter, which had been the subject of an attempted delivery on 29th June. On 29th July 2002, a Home Office official wrote to the claimant again enclosing documents that had been returned by reason of the unsuccessful attempt at delivery a month or so earlier. In my judgment, it is virtually certain that that document was successfully delivered. That is not accepted in those terms by the claimant or Christine Campbell, but it is too much of a coincidence that on 3rd August 2002 she wrote to the Home Office referring to a request for a bank statement which should be dated 3 months in advance, and referring also to the fact that fees are not payable at Blackheath Bluecoat School because it is a non-fee-paying institution. I find it an irresistible inference that that was a response to the letter dated 29th July and took into account the documents that were undoubtedly enclosed with that letter. All this, of course, related to the application form that had been submitted in May.
5. Next there was a most curious development. In October of 2002, there came into being another application form, which appears to be an application by the claimant for an extension of his stay. Large parts of it are incomplete, although on its face it has several references in the words, "Please refer to enclosures." Another odd feature of it is that it is neither signed nor dated. That document is completely disowned by the claimant and his aunt, although she acknowledges a resemblance with her own handwriting.
6. On 10th February 2003, one of the Secretary of State's officials wrote to the claimant informing him that his application had been refused. The accompanying notice of refusal gave these reasons:

"You have applied for leave to remain as a Student to study at The Blackheath Bluecoat School ... I am not satisfied that you have been accepted for a full time course of study either at a publicly funded institution of Further or Higher Education or at a bona fide private educational institution which maintains satisfactory records of attendance or at an independent fee paying school outside the maintained sector."

That refusal was stated to be a response to the application that had been lodged in October, that is to say the disowned one.

7. I come now to the issue at the centre of this case. If the claimant had made a valid application in May, that is before the expiry of his initial leave to remain, and that application had been refused, he would have a right of appeal to an adjudicator against the refusal by the Secretary of State. If, on the other hand, he did not make a valid application before the expiration of the initial leave in June, then no such right of appeal arises. All that is the result of provisions in the Immigration and Asylum Act 1999 and the Immigration Rules. Rule 32 states:

"After admission to the United Kingdom any application for an extension of the time limit on or variation of conditions attached to a person's stay in the United Kingdom must be made to the Home Office before the applicant's current leave to enter or remain expires."

It is then provided that subject to some exceptions that do not arise in the present case:

"... all applications for variation of leave to enter or remain must be made using the form prescribed for the purpose by the Secretary of State, which must be completed in the manner required by the form and be accompanied by the documents and photographs specified in the form. An application for such a variation made in any other way is not valid."

Section 61 of the 1999 Act provides:

"A person may appeal against a decision to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom which he has if, as a result of that decision, he may be required to leave the United Kingdom within 28 days of being notified of the decision."

That right of appeal only arises if the applicant has applied to vary the limited leave before the initial leave expires. Thus the central issue in this case is: was the May application a valid application?

8. The case for the Secretary of State is that it was not because the form had not been completed in accordance with the requirements of Rule 32. In particular, Miss Collier refers to the omissions in respect of Sections 3.5, 4.1, and 5.4, and to the omission to provide the full documentary material required by Section 7. The case for the claimant is that if one reads the form with the documents which were enclosed with it, taken together they amount to a valid application because taken together there is compliance with Rule 32. Alternatively, it is said if there is not strict compliance, there is at least substantial compliance and that is enough.
9. I am prepared to accept that the omission to answer the question at Section 3.5 on the form was made good by the accompanying documents, which gave details of the course of study. However, a more serious issue arises as a result of the failure to complete at Section 4.1. Plainly, its purpose was to elicit information to enable the Secretary of State to ascertain whether the course and institution fell within Rule 57. Rule 57 provides:

"The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:

i) has been accepted for a course of study at:

(a) a publicly funded institution of further or higher education; or

(b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; or

(c) an independent fee paying school outside the maintained sector ..."

10. The Secretary of State needs information so as to ascertain whether that requirement is satisfied or not. Although there was information identifying the institution, there was none which would have enabled the Secretary of State to ascertain from a perusal of that information whether the institution fell into the categories in Rule 57.1. Nor was the omission to answer the question about money at Section 5.4 made good by the documents which accompanied the application. Whilst they referred to the aunt as sponsor, and whilst I entirely accept that she does provide the claimant with money, there was nothing to indicate the monthly amount. Moreover, the bank statement that was supplied was a snapshot of a particular date in the account in April and did not comply with the requirement to provide information covering a 3-month period.
11. In my judgment, it cannot be said that the application form complied in all respects with the formal requirements imposed by the form itself and with the specifications made clear by the form. Nor, in my judgment, can it properly be said that there was substantial compliance. Moreover, I find that there is no developed doctrine of substantial compliance in this area. Miss Collier relies on the case of Sithole v Secretary of State for the Home Department, a decision of the Immigration Appeal Tribunal notified on 9th August 2000, in which Collins J effectively held that there was no doctrine of substantial compliance in this area and that the requirement in relation to the filling and submitting of forms are very stringent. He reached that decision placing some reliance on the earlier case of The Queen v The Secretary of State for the Home Department ex parte Immigration Law Practitioners Association [1997] IAR 189. He also placed importance on the fact that the Immigration Rules are not purely rules of procedure, they are rules "which are laid down to govern the practice to be followed in the regulation of entry into or stay in the United Kingdom", adding that Rule 32 "is, in our judgment, as clear as it could be."
12. On behalf of the claimant, Mr Muquit seeks to rely on a passage in Macdonald, Immigration Law and Practice, fifth ed, at paragraph 4.8, referring to "the draconian consequences of non-compliance", and suggesting that the appellate authority should lean in favour of the doctrine of substantial compliance "whenever reasonably possible." That suggestion is unsupported by authority and makes no reference to the case of Sithole. It is, in my judgment, no more than a suggestion.
13. That really disposes of the central issue, although there are some other points taken by the claimant in relation to it. It is said, for example, that the Secretary of State was inefficient in responding to the application and by not raising questions about the completion of the form until after the initial leave period had expired was in some way the architect of the present difficulty. Whilst I do not express approbation of the time taken to consider such applications, I do not believe that any lack of punctuality on the part of the Secretary of State can properly be blamed for the failure to complete the application form in accordance with its own requirements.
14. Next it is submitted that the October application, the disowned one, was far more deficient than the May application and yet it was treated by the Secretary of State as a valid application, albeit it was refused. It seems that the reason for that is that the Secretary of State has a policy of exercising a discretion to accept imperfect applications and then refusing them substantively rather than engaging in protracted correspondence aimed at converting the imperfect into the perfect. The submission is that on the basis of that policy that is what the Secretary of State should have done here, not necessarily so as to produce a decision on the accepted application which was wholly favourable to the claimant, but so as to permit him a right of appeal to an adjudicator in the event of a refusal. Miss Collier describes that as something of an Alice in Wonderland submission, and I rather agree with her description, notwithstanding the skilful way in which it was advanced.
15. For these additional reasons, I am driven to the conclusion that the claimant cannot succeed on the central issue in this case. Quite simply, he did not submit a valid application in May.
16. There is an additional and further difficulty. Although the application in May was deficient as to the information regarding the school in the context of Rule 57, that gap was filled in August when the claimant's aunt provided the information to the effect that the school is not a fee-paying school. It was that additional information provided against the background of the May application that came to inform the February decision, which related to the apparent October application. It will be recalled that the reason for refusal was the Secretary of State not being satisfied that the claimant had been accepted for a full-time course of study at one of the types of institution referred to in Rule 57.1. Leaving aside the curiosity of the October application, it is abundantly clear that Blackheath Bluecoat School does not come within rule 57.1. That does not go to the formal validity of the claimant's application but, submits Miss Collier, it shows that any decision or appeal would be bound to be concluded in a manner adverse to the claimant. Therefore, as a matter of discretion, even if the central issue had been resolved in favour of the claimant, I should have declined relief.
17. Mr Muquit's response to that is to rely on a passage in the Immigration Directorate's Instructions for Students dealing with maintained schools, which included Blackheath Bluecoat School. The instructions state:

"Leave should not be given to a child whose sole claim to remain is based on his acceptance as a pupil at a maintained school."

And little later:

"A child who seeks admission as a student to attend a maintained school should normally be refused leave to enter ... If the immigration officer is satisfied, however, that he otherwise meets the requirements of the Rules and that he, or the person responsible for him, has the means to pay for studies at a private educational institution, and will seek to arrange such a course, leave to enter may be given ... for 6 months."

The words "will seek to arrange such a course" are emphasised in the instructions. The submission on behalf of the claimant is that that covers his circumstances.

18. In my judgment, however, on the material that was before the Secretary of State and on the material that is before me, that exception has not been brought into play. There was, and is, no material upon which the Secretary of State could be "satisfied" that the claimant or his aunt "will seek to arrange" studies at a private educational institution for which they have the means to pay. It is possible that they could take steps to bring themselves within that. I know not. However, I reject the submission that they presently have shown that they fall within it.
19. For all the reasons I have given, therefore, this application for judicial review fails.
20. I do not leave the case without making this observation. The claimant is a young man who clearly had aspirations for education. This is not one of those cases in which a devious applicant has attached himself, however loosely, to a fly-by-night institution so as to circumvent the Immigration Rules. On the face of it, it is a case where he was making sincere attempts to advance his studies. Whether there is any way within the Rules, or within the exception to which I have referred, whereby he might become able to pursue his GCSE studies to their conclusion I know not. Such questions as I have asked on the subject have not been met with an informed answer. I say this simply to make it clear that I do have a degree of sympathy for the claimant. However, that cannot extend to his succeeding in this application.
21. Thank you both very much.
22. MR MUQUIT: My Lord, the claimant is publicly funded, may I ask for a legal aid assessment?
23. MR JUSTICE MAURICE KAY: There is no certificate on file, but if one is lodged within seven days, certainly.