QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF YASIR HUSSAIN||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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MS JULIE ANDERSON (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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"If an applicant/representative wishes to withdraw their application we should action this request. This excludes Cambridge College of Learning cases. Requests for withdrawal of these cases should be responded to as under Section 9 below."
"Any qualification submitted which was studied for or awarded by the Cambridge College of Learning in support of an application should be verified following the tier 1 verification process and case worked as normal (with the exception of those cases containing evidence stated in paragraph 4 of this instruction). If after verification the qualification has been confirmed as false the case should be refused under paragraph 322(1A) and Post Study Work applications scored as detailed in paragraph 4."
"The college has confirmed that it has never operated or awarded postgraduate diplomas in the following subjects:
"As such, any qualification received in either of these subjects from Cambridge College of Learning from any period should not be accepted and should be refused under paragraph 322 (1A)."
"Whether the Secretary of State's decision is void (and thereby unlawful) for being made on an application which was withdrawn 15 days prior to the decision. Put another way, what is the purpose, meaning and intent of paragraph 34 J of HC 395."
In relation to that ground the learned deputy judge said:
"The first ground of this application is in my view arguable since it does not appear to be disputed, that the claimant requested the return of his passport for the purpose of travel to Pakistan prior to the application having been determined, and there is no suggestion in the defendant's policy and the rules that he may disregard the withdrawal of an application and go on to determine it for his own reasons."
Firstly, that paragraph 34 J of the immigration rules does not apply.
Secondly, that the passage from the internal guidance which explains paragraph 34 J, that is to say the IDI of February 2008 at chapter 1 A section 1 paragraph 9, does apply.
Thirdly, that the defendant cannot act in the way he has done unless there is a relevant rule which "empowers" him to act, as otherwise he would be able to avoid Parliamentary scrutiny, in the sense that this procedure was not placed within the immigration rules or an amendment to the immigration rules and therefore subject to negative resolution by Parliament.
Fourthly, that there is no express rule which gives the defendant the power to decide an application, where a request for a withdrawal of the application has been made.
And fifthly, that the defendant must act in accordance with the IDIs, the only exception being where they are inconsistent with the immigration rules.
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this act for regulating the entry into and stay in the United Kingdom of persons required by this act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances."
"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality Immigration and Asylum Act 2002 one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. So there was no conceptual reason why they should not create rights which subsequent rules should not in the absence of express language be construed as removing. The question is whether on a fair reading that is what they do."
"In deciding what simple fairness demands in the present context it is important to recognise first and foremost that, so far from asking here what Parliament intended, the question is what the Secretary of State intended. The rules are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated: the Secretary of State merely has to devise such fresh rules as appear to her to be required in the circumstances.
Secondly, as Mr Ockelton put it in the tribunal's decision here, 'The immigration rules are essentially executive, not legislative'; the rules 'are essentially statements of policy'. Longmore LJ said much the same thing in the Court of Appeal (para 27):
'The rules are statements of executive policy at any particular time … Policy statements change as policy changes.'
"This to my mind is the core consideration in the case. This, and the fact that, save in those few specific cases (such as HC395 in 1994) when express transitional provisions were included in the rule changes, decisions invariably have been taken according to the up to date rules.
"The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33(5) of the 1971 Act provides that:
'This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.'
"The Secretary of State's immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."
"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."
"In the exercise of their functions under this act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State."
"We invited additional written submissions when we reserved judgment because Mr Payne, perfectly reasonably, wanted time to take full instructions. His submission, having done so, is twofold. First, through him the Home Secretary accepts that neither case-workers nor presenting officers should depart from IDI guidance without good reason. Secondly, and given that IDI are publicly available, there should be no requirement or expectation that in every appeal the material IDI, if there is one, will be produced to the AIT. This is both for legal and logistical reasons; but since no such proposal is being mooted, it is not necessary to go into them. The question is what should happen when a discrepancy between an IDI and the case being presented by the Home Office is drawn (usually but not necessarily by the appellant) to the AIT's attention.
"Two things seem reasonably clear. One is that the IDI does not have, and cannot be treated as if it possessed, the force of law. The other is that, at least in a case such as the present one, the IDI must have a legitimate bearing in the sense that it would be wrong for the immigration judge to adjudicate in ignorance of it. Between these poles one can locate two further propositions. First, albeit its author is in law the author of the immigration rules, the IDI is not an aid to the construction of those rules. Secondly, and assuming always that it sits, as it must, within the four corners of the rule to which it relates, the IDI's significance cannot depend on whether it steers caseworkers towards a restrictive or a generous application of the rule. If Mr Hussain can use the present IDI because it helps him, the presenting officer in another case can use another IDI for the opposite reason; and in both such cases the IDI becomes a surrogate for the rule, which is not permissible.
"It follows that the proper course is not to introduce the material IDI every time the meaning or application of an immigration rule is in issue. But the presenting officer should be ready to explain to the AIT any divergence between the case now being presented and any material IDI to which the AIT's attention is drawn. This approach, without placing an undue burden on the Home Office, reflects the legal obligation of government not to act inconsistently with its own policy unless there is some good reason for doing so: see British Oxygen v Board of Trade  AC 610. More than this would be to give internal guidance the force of law; less would be to tolerate double standards in public administration."
"Return of passport for travel before an application has been determined.
"Where an applicant requests the return of a passport for travel outside the common travel area the application for variation of leave shall, provided it has not been determined, be treated as withdrawn as soon as the passport has been returned in response to the request (paragraph 34 of HC395) as amended by Cm 4851) refers). Section 3C leave will end immediately. There will be no right of appeal against this decision because there will have been no decision to refuse to vary leave:
"Withdrawal of applications (not travelling).
"Where an applicant who is not travelling makes a clear unambiguous request for consideration of the application to be discontinued, section 3C leave will terminate on withdrawal of the application. If such a request is ambiguous, clarification that the application is being withdrawn should be sought. It should be accepted only once a clear, unambiguous request has been made in writing. Where such notification is given by post, the date of postage is when the application is withdrawn and section C3 leave ends on that date."
"9.1. Under paragraph 34 J (of the immigration rules) an application for leave to remain is to be treated as withdrawn if the passport is returned for travel outside the common travel area before the application is decided. Ideally such requests should be confirmed in writing but where the reason for travel is urgent the passport may be returned without a written request having been received. In these circumstances, it is important to record the relevant details in the case notes. Where a passport is returned for the purposes of travel the application is treated as withdrawn whether or not the applicant subsequently travels. No refund of the specified fee will be appropriate where an application is withdrawn."
"It should be accepted only once a clear unambiguous request has been made in writing."
39. MR MALIK: Yes, my Lord. I agree, given that the claimant has lost his case and importantly any order of costs would be academic, I do not propose to object to the Secretary of State's application. The Secretary of State has not given a figure, but if your Lordship is minded to order costs in the Secretary of State's favour, then it is common ground that an order should be to require the claimant to pay the costs to be assessed if not agreed.
40. MR JUSTICE IRWIN: Yes.
41. MR MALIK: My Lord, the other consequential matter is that I have an application for permission to appeal to the Court of Appeal. I have of course heard what your Lordship has said. In my most respectful submission, the issues raised in this matter are of some general importance and warrant the attention of the Court of Appeal. My Lord, the Secretary of State's position, as is clear from the note, is that this is not an unusual matter and the question of permission should be left to the Court of Appeal. In any event, my Lord, I invite to you grant permission.
42. MR JUSTICE IRWIN: Thank you, Mr Malik. I refuse permission. It seems to me that this is a matter which if you wish to pursue you will have to seek permission from them. I do not think that you have a reasonable prospect of success. So permission for appeal is refused.