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
		3 February 2012

1. MR JUSTICE HADDON-CAVE: This is an application for judicial review of a decision by the Secretary of State for the Home Department dated 10 March 2011, when she refused the applicant leave to remain in the following terms:

"On 17 February 2011 you made a combined application for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant under the points based system (PBS) and for a Biometric Residence Permit (BRP). An official has considered your application on behalf of the Secretary of State.

In view of the fact that you have claimed 10 points for funds under Appendix C of the immigration rules, but the documents you have provided do not demonstrate that you have been in possession of the required level of funds for 28 days, the Secretary of State is not satisfied that you have achieved 10 points under Appendix C of the immigration rules and it has therefore been decided that you have not met the rules to be granted leave to remain as a Tier 4 (General) Student Migrant.

Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 4 (General) Student Migrant under paragraph 245ZX(d) of the immigration rules.

In making the decision to refuse your application, careful consideration has been given to the following:

• On 18 December 2006 you were granted leave to enter the United Kingdom as a student until 31 March 2010.

• On 7 July 2010 your application for leave to remain as a student was refused."

2. Under the heading "Maintenance (Funds)", the letter stated:

"You have not provided sufficient funds in order to secure points in this section.

...

• You are required to demonstrate that you have 9 months maintenance because you have not completed a course of study for 6 months or more. This is because you commenced study on 8 February 2010 and your entry clearance expired on 31 March 2010, which in duration, is less than 6 months."

3. Then under "Section C: Right of appeal":

"You made an application on 17 February 2011. However, your leave to enter expired on 31 March 2010. You therefore did not have leave to remain at the time of your application."

4. The applicant's application was lodged on 17 June 2006, a week late. On 2 September 2011, Mr Timothy Brennan QC, sitting as a Deputy High Court Judge, refused permission to judicially review the Secretary of State for the Home Department's decision on 10 March 2011 for the following reasons:

"This claim is out of time. The claimant has not demonstrated any reason to extend time. I refuse permission on this ground.

But in any event, I also refuse permission for the other reasons given in the AOS. The claim is erroneous, because the claimant is relying on a version of the relevant rule which was not in force at the time of his application. His last valid leave to remain expired on 31/3/2010 and he has been an illegal overstayer since. He does not qualify within the prescriptive points-based system.

The allegation of unfairness adds nothing to the detail of the claimant's case."

5. The applicant renewed his application, and it came before HHJ Thornton, who on 1 December 2011, after an oral hearing, granted permission to judicially review the decision of 10 March 2011 and extended time for lodging of the proceedings until 17 June 2011 and granted permission to the claimant to amend his notice of grounds. No amended grounds have been lodged, however the detailed skeletons and submissions have been provided today by Mr Haurigan, counsel on behalf of the claimant, and by Mr Barnes, counsel on behalf of the Secretary of State.

Background

6. The claimant entered the United Kingdom on 13 January 2007 on a student visa, which, as I have said, was valid from 18 December 2006 to 31 March 2010. On that date, 31 March 2010, the claimant applied for further leave to remain as a Tier 4 (General) student. His application was rejected by the Secretary of State for the Home Department on 7 May 2010 because he had failed to provide a Confirmation of Acceptance of Study (CAS) as required.
7. The effect of the claimant's application on 31 March was to extend his visa until the determination of his application to extend (by virtue of section 3C of the 1971 Immigration Act). On 7 May 2010 his application to extend was rejected, whereupon the claimant became an overstayer and remained illegally.
8. On 27 May 2010 the claimant applied for further leave to remain as a Tier 4 (General) student to study a BA (Hons) in Business Administration at Guildhall College. Again his application was refused by the Secretary of State for the Home Department. This refusal was made on 7 July on the grounds that the claimant had relied on bank statements which were not within one month of the application, and so he had failed to provide acceptable evidence that he had sufficient funds.
9. On 28 January 2011, a CAS was issued to the claimant in respect of his BA (Hons) course in Business Administration at Guildhall College. The CAS stated that the course had commenced on 8 February 2010 (i.e 11 months before) and would be completed on 24 June 2011 (i.e five months hence). The CAS further stated that the course fees charged for the first year of the course were £3,500, of which the claimant had paid £2,550.
10. On 17 February 2011 the claimant applied for further leave to remain as a Tier 4 (General) student to study a BA (Hons) in Business Administration at Guildhall College. It was that application that was refused by the Secretary of State on 10 March and which is the subject of the present challenge.
11. The thrust of the claimant's challenge is that (1) he had demonstrated that he fulfilled the requirements of rule 14 of Appendix C, Maintenance (Funds), of the rules, and (2) that it was not necessary for him to show that his application was being made whilst he was currently lawfully within the United Kingdom.
12. The relevant rules to be considered are as follows. Under "Part 6A - Points-based system", rule 245ZX reads as follows:

"Requirements for leave to remain

To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused."

13. Under "Requirements":

"(b) The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain:

(i) as a Tier 4 (General) Student ...

(d) The applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C."

14. Appendix C reads as follows:

"Tier 4 (General) Students.

10. A Tier 4 (General) Student must score 10 points for funds.

11. 10 points will only be awarded if the funds shown in the table below are available to the applicant and the applicant provides the specified documents to show this. Notes to accompany the table appear below the table."

15. Then set out are the criteria for the points:

"If studying in inner London: [10 points]

i) Where the applicant does not have an established presence studying in the United Kingdom, the applicant must have funds amounting to the full course fees for the first academic year of the course, or for the entire course if it is less than a year long, plus £800 for each month of the course up to a maximum of nine months."

16. The criteria then go on to deal with whether an applicant has an established presence, in which case the applicant must have the course fees plus £800 for each month of the course up to a maximum of two months. In the notes to Appendix C, note 14 reads as follows:

"An applicant will have an established presence studying in the UK [first limb] [a] if the applicant has completed a course that was at least six months long [b] within their last period of leave as a Tier 4 migrant, a Student or as a Postgraduate Doctor or Dentist, and [c] this course finished within the last four months, or [second limb] the applicant is [a] applying for continued study on a course where the applicant has [b] completed at least six months of that course and [c] has been studying in the last four months." [Added]

I will come back to look at the construction of note 14 shortly.

17. Mr Haurigan for the claimant referred to the general guidance provided, in relation to which paragraph 127 set out in fairly similar terms the guidance as to the amount of months' money that was required. His case is very simple. On behalf of his client, he says that the claimant fell plainly within the second limb of note 14, and fulfilled the criteria under note 14, because the claimant was applying for continued study on a course where the claimant had completed at least six months of that course within the last four months, viz the claimant had, as can be seen from the CAS, commenced the course on 8 February 2010, and therefore he was already 11 months into that course.
18. Mr Barnes for the Secretary of State says that at the time the claimant made the application he had been unlawfully in the United Kingdom since May 2010, when his first application to extend had been refused (ie 7 May 2010), and that the claimant was an overstayer who was seeking to put himself in a better position than he should have been.
19. The debate before me revolved around note 14. Mr Haurigan made three points: firstly, that on the plain meaning and construction of note 14, it admitted of only one construction, which was that if one fell under the second limb, one did not need to show that one was lawfully within the United Kingdom at the time when making the application because the words "within their last period of leave as a Tier 4 migrant" did not appear in the second limb and could not as a matter of construction be lifted over and read as applying to the second limb.
20. He secondly said that there was no evidence that the Secretary of State intended those words to be read over into the second limb. Thirdly, he said that even though there had now been a rule change that could not affect the accrued rights of his client under the old rules.
21. There has indeed been a change in the rules. This took place on 31 March 2011 in "Statement of changes in Immigration Rules [HC 908]". Paragraph 62 of HC 908 stated:

"62. In Appendix C, delete paragraph 14 and substitute:

"14. An applicant will have an established presence studying in the UK if the applicant has current entry clearance, leave to enter or leave to remain as a Tier 4 migrant, Student or as a Post-Graduate Doctor or Dentist and at the date of application:

(i) has finished a single course that was at least six months long within the applicant's last period of entry clearance, leave to enter or leave to remain, or

(ii) is applying for continued study on a single course where the applicant has completed at least six months of that course."

22. It will be apparent from the above that the reference in the first line to "the applicant has current entry clearance" plainly refers to the applicant being lawfully within the United Kingdom at the time the application was made, and plainly applies to both limbs (i) and (ii).
23. In the Explanatory Memorandum to the Statement of Changes in Immigration Rules laid on 31 March 2010 (HC 908), under the heading "Policy Background, Amendments to Tier 4 of the Points Based System", the following is stated under paragraph 7.5:

"Some further changes, which clarify measures already contained within the Immigration Rules, but which do not originate from the review of the student route are being made as follows:

...

• Clarification of the definition of "established presence" which enables certain applicants, who have previously been studying in the UK, to present lower levels of maintenance funds in order to claim 10 points in Appendix C."

24. Later on, as Mr Barnes points out, the Explanatory Memorandum goes on to discuss by contrast amendments to correct drafting errors.
25. What Mr Barnes submits on behalf of the Secretary of State is (1) that note 14 should not be construed as a statute; (2) that whilst one should not look at the background policy to establish what the rules say, it is relevant to look at the rules in the context of the Secretary of State's policy; and (3) that Mr Haurigan's construction of note 14 would lead to absurdity.
26. In Ahmed Mahad v Entry Clearance Officer [2009] UKSC 16, Lord Brown said as follows.

"10. There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffmann said in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, 1233 (paragraph 4):

"Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."

That is entirely consistent with what Buxton LJ (collecting together a number of dicta from past cases concerning the status of the rules) had said in Odelola in the court of Appeal ([2009] 1 WLR 126) and, indeed, with what Laws LJ said (before the House of Lords decision in Odelola) in the present case. Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."

27. Mr Barnes says that lawful presence within the United Kingdom is a relevant and important aspect of policy behind the rules, but the gravamen of his objection to the claimant's construction is that it would lead to absurdity. He says, firstly, that when one looks at note 14, there is a mismatch between the first and second limbs, which are essentially identical except for criteria in the first limb, [b], that any applicant "within their last period of leave as a Tier 4 migrant" ie lawfully in the United Kingdom at the time of making the application, and that on the plain language this is a mismatch which was not intended to be there.
28. Secondly, he says that it would lead to an absurdity because if a student was here for five months with a few months left of the course, then that student, rather than applying to renew leave at the end of the five months when their leave was coming to an end, would be better off waiting until they had completed the six months of the course and then applying under the second limb when they were here unlawfully. It could not be right that an applicant was better off by remaining unlawfully for another month.
29. Mr Barnes also says that, first as a matter of construction, note 14, if read not as a statute or a statutory instrument but instead sensibly, according to the natural ordinary meaning of the words, does work because the reference to "within the last period of leave as a Tier 4 migrant" is intended to dominate the entire paragraph. Secondly he says that, in any event, it is plain that the words "established presence" in the first line was intended to be a reference to established lawful presence, and that, reading it sensibly, a perfectly respectable construction was that the reference to "within the last period of leave as a Tier 4 Migrant" was simply intended to be there for the avoidance of doubt.
30. Mr Haurigan took issue with Mr Barnes' submission that note 14 could lead to absurdity, because he said that a situation was unlikely to arise in practice where an applicant would be applying for continued study in circumstances where their leave to remain had expired, because the normal practice was to grant leave to remain for the entire period of courses.
31. Mr Barnes, however, pointed out that, in this case, it was plain that this applicant was seeking leave to remain on 27 May 2010 to continue this course which had started on 8 February 2010, and therefore this very case was an example of an application being made for continued study when leave to remain had expired.
32. If one lays out note 14 and looks at the first limb and the second limb, each of the two limbs, on a strict black-letter construction, it has three criteria. Under the first limb, the criteria are (a) the applicant has completed a course that was at least six months long; (b) within the last period of leave as a Tier 4 migrant, a Student or a Post-Graduate Doctor or Dentist; and (c) this course finished within the last four months.
33. As regards the second limb, there are three criteria: that the applicant is (a) applying for continued study on a course where the applicant has (b) completed at last six months of that course and (c) been studying within the last four months.
34. If one strips out under the first limb criterion (b), there is very little between the two limbs save that the first is dealing with study that has been completed and a request for fresh study; the second is dealing with continued study.
35. It seems to me that there is an element of absurdity about the second limb of note 4 if the criterion that the presence of the applicant is lawful is not read into that second limb. Otherwise any applicant would be better off waiting until he completed six months of a course, and therefore could bring himself within the second limb, even though waiting, on this hypothesis, would lead to the applicant remaining unlawfully where his leave to remain had in the meantime expired. It seems to me that a fair and sensible reading of the note is that it should be read as encouraging applications to be made whilst applicants are lawfully present within the United Kingdom and not unlawfully.
36. Some assistance is derived from the recent explanatory notes to which I have referred. Whilst note 14 is not altogether pellucid, it seems to me that it can and should be read so as to give effect to background policy aims.
37. Mr Haurigan says that it is more easy to justify a requirement that one is lawfully within the United Kingdom where one has completed a course, and that such a requirement is not as necessary when one is continuing study. In my view, however, the variety of different circumstances in which applicants are applying at different stages of different courses at different times means that a sensible reading of this note drives one to the conclusion that there is an overall intention that "established presence" was directed towards lawful established presence, not unlawful.
38. For those reasons, the application is dismissed. Is there anything else I need to deal with, apart from costs?
39. MR BARNES: No, my Lord, just costs. I believe that can be dealt with shortly. We are entitled to our costs in the usual way.
40. MR JUSTICE HADDON-CAVE: Mr Haurigan?
41. MR HAURIGAN: There is nothing I can say to that.
42. MR JUSTICE HADDON-CAVE: Can I thank you both very much for a very interesting argument on a point which is unlikely to arise very often, but has arisen. Thank you both very much indeed for your hard work.