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 WC2A 2LL
		10 December 2012

1. JUDGE ROBINSON: This is a renewed application for permission to apply for judicial review by the claimant, a national of Pakistan, whose date of birth is 8 October 1983 and who is therefore 29.
2. In 2004 the claimant entered the UK on a student visa and he has remained here pursuant to extensions to his visas until the dispute arose. On 12 December 2008 he applied for leave to remain under the Tier 1 points-based system (Post-study work) and his application was refused. On 31 March 2009 an appeal against that refusal was dismissed. There was reconsideration on 8 July 2009, which ordered the appeal decision to stand. On 16 December 2010, the Court of Appeal gave the claimant leave to appeal against the decision and Hooper LJ indicated that the reasons were that the appeal has a real prospect of success.
3. The basis of the appeal was that the claimant's application for leave to remain complied with every requirement of the Immigration Rules and guidance issued thereunder but for one matter: he was awarded no points at all on one head by virtue of his failure to produce bank statements in the required form. The bank statements which had been produced had been downloaded from the internet, whereas the relevant guidance said that electronic bank statements had (amongst other things) to be authenticated by the bank via a supporting letter or official stamp on the statements.
4. The claimant argued that that requirement was, in effect, a criteria which had to be met in order for the application for leave to remain to succeed, and was therefore a rule which had to be in a document laid before Parliament, as the Immigration Rules are required to be, by virtue of the decision of the Court of Appeal in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719. However, as a result of family ill-health, the claimant went home to Pakistan for a time and abandoned his appeal.
5. Following the decision in Pankina, the Secretary of State adopted a policy of reconsidering cases which had been refused by virtue of failure to meet maintenance criteria, an amended version of that policy being adopted on 22 November 2010. The policy indicated that decisions would be reviewed, but on the basis only of the material which had been submitted in support of the original application.
6. On 24 February 2011, the claimant requested a review of the decision relating to him, but on 1 April 2011 the claimant was informed that he did not qualify for a review. The email specifically refers to the lack of bank statements which had been suitably authenticated by the bank.
7. On 7 September 2011, the claimant's solicitors sent a pre-action protocol letter. However, there was no reply to that letter, nor were any proceedings issued. On 22 March 2012 a further pre-action protocol letter was sent which elicited a response dated 5 April 2012. Yet another pre-action protocol letter was written on 9 May, which elicited a response on 28 May 2012. This application was issued on 5 July 2012.
8. Permission was refused on the papers by James Dingemans QC on the grounds that the claimant had a right of appeal against the appeal decision in his case, but for reasons which were understandable he declined to pursue it, and that this application for permission to apply for judicial review is simply an attempt to resuscitate his appeal.
9. Before me, Mr Jones, for the claimant, has argued that the application is not a challenge to the previous appeal decision but seeks to review the Secretary of State's subsequent decision-making; and only in the latest letter (dated 28 May 2012) has the Secretary of State actually given a reason for not following the decision in Pankina, namely that by requiring authenticated bank statements pursuant to an outside source, the Secretary of State is adopting a legitimate approach and not one which relies on a document which is required to be laid before the Houses of Parliament.
10. For present purposes, I am prepared to accept that the underlying argument is arguable: that is to say that the guidance which requires internet bank statements to be authenticated by a bank is a rule being any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused, the test set out by Lord Dyson in R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33. However, it is undoubtedly the case that that argument is exactly the same one as was being pursued at the time of the application for permission to appeal to the Court of Appeal, albeit Alvi had not yet been decided, but the same point was being taken in relation to the Court of Appeal decision in Pankina. There was an appeal against the Tribunal decision on precisely the same grounds, which was then abandoned.
11. A judicial review is a remedy of last resort, and it is not open to a claimant to seek to re-argue a point which could and should have been pursued on an appeal at the end of 2010, two years ago.
12. In so far as there has been any subsequent decision making, I do not consider it is arguable that the more recent letters of the Secretary of State, dated 5 April and 28 May, are decisions for these purposes. The subsequent decision taken was that of 1 April 2011 that the claimant was not entitled to a review pursuant to the Secretary of State's latest policy. The time for challenging that decision was in 2011, at the very latest 1 July, over one year before judicial review proceedings were begun in this case.
13. It is not open to a claimant to effectively extend time indefinitely by writing successive pre-action protocol letters (three in the present case) and then challenging the response to those which do not contain any decision, merely the reasons why the Secretary of State says the original decision was correct. That that is the approach here is well illustrated by the terms of the Secretary of State's letters themselves. They start off with an immigration history which sets out a chronology. They specifically refer to the application for leave to remain, the refusal, failure of the appeal, the permission to appeal to the Court of Appeal and the abandonment of that appeal. The letters goes on to refer to the request dated 24 February 2011 to review that decision in line with the policy put in place following Pankina and to the decision by email to confirm that the claimant did not qualify for a remedy under that policy.
14. The latest letter of 28 May refers to the pre-action protocol letter, to which there was a reply on 5 April. It then summarises the position in relation to the previous application for leave to remain, summarises Pankina, goes on to refer again to the request for a review and then explains why the Secretary of State does not agree with the points that were put in the pre-action protocol letter as to why the claimant said Pankina applied. The letter concludes as follows:

"As explained above, the decision to refuse your client's application for leave to remain was correct and in line with both the Immigration Rules and published Tier 1 (post-study) work migrant policy guidance and is therefore to be maintained. Your client's application was considered under the terms of the Pankina remedy document. The decision to refuse was maintained." [Quote not checked].[I have not been able to check the quote either but as typed it makes sense so I am content with it]

15. The letter does not contain a substantive decision: it refers back to the two previous substantive decisions of the Secretary of State, namely to refuse leave to remain, which was the subject of the appeal but was abandoned, and secondly the decision that there was no remedy under the policy adopted after Pankina.
16. Although not elaborated upon orally, the claimant's skeleton argument refers to the possibility of the court granting an extension of time by reference to R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [2000] Env LR 221. However, that was a very different case where the claimant raised a point of important public interest where the government had been found to have failed to give full effect to the Habitats Directive in UK regulations and there were implications of licences proposed to be granted for the extraction of minerals on important species of nature conservation interest.
17. Here, while the effect of Pankina and Alvi may well be of public importance, the claimant has not brought this action in the public interest but because he is complaining about specific decisions made in respect of him which he alleges are unlawful. Moreover, this is not a case where fine judgments may have had to be made about the correct time in which to bring proceedings.
18. As I have already said, a pre-action protocol letter was written in respect of the 1 April 2011 decisions (albeit also late, on 7 September 2011) by the claimant's solicitors. There was no reply and the matter was not pursued. The claimant was well aware at that stage of a right to challenge the decision and moreover the claimant's counsel before me accepts that there is no reason why the claimant could not have challenged the 1 April 2011 decision at an earlier date on precisely the same grounds as the present challenge before me.
19. In my judgment, it would be a retrograde step if the Secretary of State were to be dissuaded from responding helpfully to representations being made on behalf of claimants for fear that every time a response was written to a pre-action protocol letter it was to be treated as making another decision for the purpose of starting time running again in any claim for judicial review.
20. For all those reasons, this application is refused.
21. MR JONES: My Lady, could I have a detailed assessment of our costs, please?
22. JUDGE ROBINSON: Yes.
23. MR JONES: Thank you, my Lady.