England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/05/2014

Mr Justice Green :

Introduction

1. The Claimant challenges various decisions of the Secretary of State for the Home Department ("SSHD") to refuse the Claimant's application for leave to remain as a Tier 1 (Post-Study Work) Migrant. This judgment, in addition to addressing the merits of the claim, focuses also upon the circumstances when a court should, when construing a decision containing typographic or transcription or other obvious errors read the Decision in a way which ignores those errors and focuses upon pith and substance not form. Further, it addresses the circumstances when a court should refuse to entertain arguments because they represent an abuse of process.

The Facts

2. The Claimant is a national of Pakistan born on 14^th May 1979. He was granted leave to enter the United Kingdom as a student on 24^th April 2005 with permission to remain until 31^st August 2006. Leave to remain was thereafter extended periodically, the last extension being due to expire on 18^th May 2011.
3. At some point prior to expiry of his leave to remain he applied to City of London College to undertake an MBA under the auspices of the University of Wales, as the degree awarding body. The course commenced on 9^th May 2011, and formally completed on 26^th January 2012.
4. On 11^th May 2011 the Claimant sought further leave to remain as a Tier 4 (General) Student migrant in order to undertake the MBA. His leave to remain, which had been due to expire on 18^th May, was extended under section 3C of the Immigration Act 1971 pending the determination of the application. This application was refused on 22^nd July 2011 ("the 2011 Decision") upon the basis that under the Points Based System ("PBS") in the Immigration Rules ("IR") he had claimed 30 points for his "Confirmation of Acceptance for Studies" ("CAS"). However the Defendant concluded that she was not satisfied that he was competent in the English language at the required minimum level or that he met alternative requirements. The reasons included the following:

"You are a national of Pakistan which is not a majority English-speaking country as defined in Appendix A of the Immigration Rules. You have not obtained an academic qualification at least equivalent to a UK Bachelors Degree taught in a majority English-speaking country as defined in Appendix A of the Immigration Rules. You did not complete a course of study in the United Kingdom for which you were granted permission to stay as a Tier 4 (Child) Student Migrant or whilst under 18 years old under the student rules that were in force before 20 March 2009.

Your CAS assigned on 09 May 2011 is to study Master of Business Administration at City of London College who are a Recognised Body. However although you meet an exemption for the English Language Test requirement the sponsor still needs to state on the CAS how they have assessed your English Language Skills B2 level in all four components. Your Tier 4 sponsor has not detailed on your CAS how your English language has been assessed at B2 level in all four components. You have not provided any documentation to show that you have obtained a academic degree qualification equivalent to a Bachelors Degree (professional and vocational qualifications are not acceptable). Therefore you have not met the requirement and no points have been awarded for the CAS."

5. Since the application was made prior to the Claimant's existing period of leave expiring, the Claimant had a statutory right of appeal under Part 5 of the Nationality, Immigration and Asylum Act 2002 and, accordingly, he appealed to the First Tier Tribunal ("FTT") against the refusal of his application. His leave to remain was further extended under section 3C of the 1971 Act pending the outcome of that appeal.
6. A hearing of the FTT was convened for 10^th August 2011. However, without explanation at the time and without any form of an application for an adjournment, the Claimant did not attend and the FTT Judge decided to proceed to consider the appeal upon the papers. The Judge dismissed the appeal because the CAS was not in evidence before him nor did the CAS checking service document (which was in evidence before the FTT) confirm in the terms required that the Claimant had a knowledge of English equivalent to level B2 of the CEFR. Accordingly the Judge concluded that he could not be satisfied that the Claimant was entitled to the 30 points that he claimed for particular attributes under the PBS and thus met the requirement of the rules for the grant of the application that he had made. With the benefit of hindsight it is now known that this decision was correct: see paragraph [42] below.
7. In view of this the Claimant applied to the FTT for permission to appeal to the Upper Tribunal ("UT") but this application was refused on 27^th October 2011 by FTT Judge Macleman. The Claimant sought permission to appeal upon the basis that he failed to attend the FTT hearing because he was ill. Judge Macleman was however sceptical. He pointed out that the Claimant had not produced any evidence of an inability to attend either before the FTT or as part of his application for permission to appeal. He also observed that whilst the Claimant stated that he had evidence to produce in relation to the merits of the case this was tendered far too late. He concluded that the Claimant had not made any requests for an adjournment of the FTT hearing, he had no good reason for not attending, and he had "had his opportunity to make his case, both to the Respondent and to the tribunal".
8. No application was made by the Claimant for permission to appeal to the Upper Tribunal within the time stipulated for applications for permission to appeal.
9. The Claimant's leave to remain, which had been extended under section 3C of the 1971 Act whilst his appeal was pending, therefore expired in November 2011. However, he did not depart the United Kingdom. He completed his MBA and the course ended on 26^th January 2012.
10. In February 2012 the Claimant made an out of time application to the UT for permission to appeal. As I will explain later the Claimant advanced, as part of his case on permission to appeal out of time, evidence showing that the Claimant's student colleagues on the MBA course had been granted leave to remain upon the basis that, unlike him, their qualifications had been accepted by the FTT as valid in respect of the requirement for knowledge of the English language. He explained that the SSHD had not appealed the decisions. The Claimant's application was however refused on 12^th March 2012 by Upper Tribunal Judge Warr. He not only viewed the failure to attend the FTT hearing and the subsequent delays as reprehensible but he concluded that he was un-persuaded that the first instance FTT Judge even arguably erred in law in deciding as he did upon the material before him. The Judge therefore declined to admit the application out of time for permission to appeal.
11. The Claimant instructed his solicitors, Lee Valley Solicitors, to seek judicial review of the UT decision but they advised him against that course of action. His solicitors, instead, advised him to submit a fresh application to the Home Office. On 27^th March 2012 the Claimant, through his solicitors, made a fresh application upon the basis that the Claimant was now an eligible candidate to be granted leave to remain as a Tier 1 (Post-Study Work) Migrant. As part of this application the Claimant now relied on the award to him of his MBA in March 2012. He also raised the issue of discrimination and discretion. In particular, he argued that his colleagues on the MBA course were in exactly the same position as him and it was discriminatory to have permitted them to remain but to exclude him.
12. On 4^th September 2012 the application was refused ("the 2012 Decision").
13. In order for the Claimant's application for leave to remain as a Post-Study Work Migrant to have been accepted the Claimant needed to obtain 75 points under Appendix A (Attributes) of the IR. Appendix A awards points for qualification (20 points available); institution of studies (20 points available); immigration status in the UK during period of study and/or research (20 points available); and date of obtaining the eligible award (15 points available).
14. In relation to immigration status IR 245FD states as follows:

"To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an application must meet the requirements listed below. Subject to paragraph 245FE(a)(i), if the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirement:

(a) the applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal immigrant."

15. More specifically the relevant rules in force (Table 10 to Appendix A to the IR) made clear that the attributes which an applicant was required to have included the following in relation to the immigration status during the prior period of study:

"The applicant's period of UK study and/or research towards his eligible award were undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK that was not subject to a restriction preventing him from undertaking a course of study and/or research"

16. In relation to immigration status in order to succeed for the duration of his MBA the Claimant therefore had to possess leave to remain; which of course he did not. As is set out above leave to remain expired on 11^th November 2011 and his course was, according to his own evidence, due to complete on 26^th January 2012. It follows that for about 2 months the Claimant was enrolled on his course but without leave to remain.
17. In the 2012 Decision under the heading "Immigration status in the UK during period of study and/or research" it was recorded that the Claimant sought 20 points and that 20 points was, in fact, awarded. However the reasons for the award of the 20 points were as follows:

"as you had no valid leave at the time of study we are unable to award points under Immigration Status."

18. There is thus a clear inconsistency between the award of 20 points and the reasons. In fact it is apparent that the 2012 Decision contained a typographical error in that 20 points had been awarded whereas the intention had been to award 0 points, as the reasons explicitly stated.
19. Corroboration of the fact that the Defendant intended to allocate 0 points for immigration status is evident from the allocation of 0 points for "Qualification". The reason for this was stated in the 2012 Decision to be:

"You have claimed 20 points for Qualification under Appendix A of the Immigration Rules but on the basis of the documents you have provided you do not qualify for the award of points in this area. The reason for this is detailed below. As you had no valid leave during your period of study, we are unable to award points under Qualification."

A similar conclusion was reached in relation to "Institution of study". In relation to this 20 points were being claimed but 0 points were awarded upon the basis that: "as you have been awarded 0 Points under Qualification we are unable to award Points under Institution of Study." The same reasoning was given for the award of 0 points in relation to date of obtaining the eligible award namely: "as you have been awarded 0 Points under Qualification we are unable to award points under Institution of Study."

20. On 4^th December 2012 the Claimant sought permission to apply for judicial review of the decision of SSHD refusing his application for leave to remain as a Tier 1 (Post-Study Work) Migrant. In the Defendant's Acknowledgement of Service and Summary Grounds of Defence it was acknowledged that the 2012 Decision not only contained typographical errors but also that the allocation of 0 points for some of the other attributes was mistaken.
21. Limited permission was granted by the single Judge on 28^th May 2013. The Judge stated:

"Permission is hereby granted limited to a challenge to the Defendant's decision of 4th December 2012 to refuse the Claimant's application for leave to remain as a Tier 1 (Post-Study Work) Migrant."

In limiting permission the Judge observed that it was at least arguable, given the Defendant's acknowledgement that there were errors in her 2012 Decision, that the decision was unlawful. He added however:

"Insofar as the Claimant seeks to challenge the Defendant's earlier decision of 21 July 2011 to refuse the Claimant's application for further leave to remain as a Tier 4 (General) Student Migrant permission is refused as the claim is manifestly out of time and in any event the Claimant availed himself of an alternative remedy by way of appeal to the First-Tier Tribunal."

22. On 23^rd July 2013 the Defendant adopted a new decision (the "2013 Decision"). This amounted to a reconsideration of the Claimant's position. The letter set out the chronology and it is recorded that leave to remain expired on 3^rd November 2011 (page 3 of letter). The letter then proceeded to allocate points under the normal headings; the SSHD allocated the following points under Appendix A ("Attributes"):

i) Qualification – 20/20 points (i.e. 20 out of a maximum of 20)

ii) Institution of study – 20/20 points

iii) Immigration status in the UK during period of study and/or research – 0/20 points

iv) Date of obtaining the eligible award – 15/15 points

23. To qualify the Claimant needed 75/75. In fact, as can be seen, he was awarded 55/75 due to the fact that he was allocated 0 points under the immigration status, because he was present during his course without leave. No statutory appeal lay against this decision but judicial review was not precluded. No application for permission to apply for judicial review of this decision was lodged.
24. I turn now to the specific grounds of challenge.

Ground 1: The erroneous allocation of points in the 2012 Decision / the implication of the existence of typographical and inadvertent errors in decision letters

(i) The Claimant's Submissions

25. In the grounds and in written submissions the Claimant submitted that the 2012 Decision was defective in that having awarded the Claimant 20 points for immigration status the Defendant erred in then failing properly to allocate the correct points for other attributes.
26. Mr Jafar, for the Claimant, submitted that: "The only category which may require leave has already been accorded the necessary points" by the Defendant. This is a reference to the fact that the 2012 Decision nominally accorded to the Claimant 20 points on the basis of his immigration status. He also argued in the alternative that even if on the correct analysis the Claimant should have been granted 0 points for immigration status (but maximum points for other attributes) in practical terms the Defendants was extremely close to qualifying with full points and it was unfair to not apply some form of de minimis threshold to his case. Mr Jafar, with considerable forensic ingenuity, contended that the end date of the course (26^th January 2012) was only in fact, in effect, a nominal date because in practice the course ended much earlier with the submission by the Claimant of a dissertation and the completion of an exam timetable. He submitted that any daylight between the expiry of his leave to remain and the de facto end of the course was therefore insignificant.

(ii) A near miss is still a miss.

27. I cannot accept this argument. On the evidence, the course was always stipulated to end on 26^th January 2012 and this is more than a slither of daylight following lapse of the leave to remain in November 2011. In my view it is not incumbent upon the SSHD to adopt as anything other than the valid date for the termination of an educational course, the date which is stipulated by the educational establishment itself. I also do not accept that it is a question of fact in each and every case as to the point in time when the student de facto finishes his or her course work or exams and "puts the pen down". A test which was based upon the conduct of each individual student would be impossible to police, absurdly bureaucratic and open to abuse.
28. The fact that the Claimant's leave expired in November 2011 and his course finished in January 2012 is not a "near miss" justifying the grant of leave. In SSHD v Raju [2013] EWCA Civ 754 the Court of Appeal ruled that the rules required "strict compliance". The Court acknowledged that this was very strict. On the facts of that case the applicants were in the process of receiving their qualifications but they had not been actually notified to the students as of the date of their applications. As such it was, held the Court of Appeal, insufficient under the rules for the applicants to claim the points upon the basis that the award was forthcoming and/or imminent. Lord Justice Moses stated:

"12. Whilst I acknowledge that to allow applications which anticipate the award of the necessary qualification does not undermine the purpose of the policy, the wording of the fourth section seems to me plain. The fact that an applicant will achieve a score of 60 points, by obtaining a recognised degree at a qualifying institution during a lawful stay, achieves nothing. Only a score of 75 points attracts the right to be granted leave to remain. There is no room in the points-based scheme for a near-miss. Viewed as a whole, qualification under Table 10 requires strict compliance with the requirement to make the application within the period of 12 months from the time when the qualification was obtained.

13. Read in that way the rules are analogous to those which require an applicant to satisfy a requirement at the date of his application, such as the requirement to have a specified minimum level of personal savings at least three months prior to the date of the application (paragraph 245AA), and to the rules as to levels of funds under the applicant's control on the date of the application under Appendix C - Maintenance (paragraph 1A (g)). As Sedley LJ said :

"There are many instances of rule-based issues which need to be appraised as they stand at the moment of the appeal hearing, but the question whether at the date of the application the specified funds had been in the applicant's bank account for three continuous months cannot intelligently be answered by evidence that they had not, albeit they now have been" (Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, [39] [2011] QB 376)."

(Emphasis in paragraph 12 above added)

29. The absence of a near-miss principle in this type of case is hence well established. There is no rule whereby a refusal which is not far from the line can be translated into a grant of leave to remain. In Miah v SSHD [2012] EWHC Civ 261, Lord Justice Stanley Burton stated:

"23. Secondly, in my view it does not follow from the fact that the extent and quality of an applicant's family and private life in this country must be assessed that the degree of non-compliance with an Immigration Rule similarly falls to be assessed. One is always a matter of degree, requiring assessment; non-compliance with a rule may be a bright line question, admitting of an answer Yes or No. In my respectful judgment, Sedley LJ erred in thinking that both had to be assessed in the same way.

24. Thirdly, the judgment in Pankina accepts that there are some Rules that do not admit of a Near-Miss argument: those requiring academic and linguistic qualifications. It follows that there would be two classes of Immigration Rules: those to which the Near-Miss principle applies, and those to which it does not. The basis of the distinction is that a financial criterion, to which the principle is said to apply "has in itself no meaning". But if the financial criterion has no meaning, it must be irrational to apply it, and it may be the subject of judicial review. Yet it is clear that it does have meaning: it is a test of the liability of an applicant to become a charge on public funds. I see nothing meaningless or irrational in a rule requiring specified minimum financial means to be shown by an applicant for entry or leave to remain, and therefore I cannot see the basis for the distinction between those rules in respect of which "a miss is as good as a mile" and those in relation to which a near miss may be regarded as close to a bull's eye. Lastly, paragraphs 134 and 128 of the Immigration Rules are part of a code that, as was held in Pankina, has "a status akin to law" (paragraph 17 of Sedley LJ's judgment), and are made by "an established legislative route" under section 3(2) of the Immigration Act 1971. The last sentence of paragraph 46 of the judgment in Pankina must, I think, be read as relating to practices of the Secretary of State in the administration of that Act that have not been incorporated in the Immigration Rules.

25. Finally, quite apart from authority, I prefer the approach stated in Mongoto and Rudi. A rule is a rule. The considerations to which Lord Bingham referred in Huang require rules to be treated as such. Moreover, once an apparently bright-line rule is regarded as subject to a Near-Miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined. "

30. In my judgment the requirement that an applicant comply with the requirements as to immigration status is a bright line rule. It is based upon the very pressing need to encourage compliance with the rules since if applicants were not penalised in this way the rules would themselves incentivise non-compliance. In my view the rule is of the essence.

(iii) The relevance of typographical errors in a decision

31. I turn now to the somewhat broader question of how a court should interpret a decision which contains obvious typographical or clerical errors. In my view, when a court is confronted with a decision that contains obvious non-substantive errors due (for instance) to mistakes of transcription or simple calculation and as to which there can be no real doubt, there is no requirement in law that the Court should turn its face away from reality and treat the face of the record as definitive and binding. The Court should construe the decision sensibly and not permit infelicities of form to oust common sense and substance.
32. In my judgment the Claimant's original argument which sought to hold the SSHD to the erroneous allocation of points was unarguable. The Decision letter sets out the correct reasoning, namely that because the Claimant was unlawfully resident in the United Kingdom for part of his course he was not entitled to be allocated any points under the heading of immigration status. Given the unchallenged nature of the facts and the express reasoning in the decision any reasonable, sensible and informed third party would have recognised that the Decision letter on this particular issue contained a simple typographical error and "20" should have read "0".
33. Of course in this case, once permission was granted, the SSHD recognised not only the typographical error but also the more substantive errors on the face of the 2012 Decision namely that under headings such as "Qualification" it was wrong to allocate 0 points when 20 were in fact justified. She decided therefore to reconsider and, in effect, withdraw the 2012 Decision. She did not seek to defend the 2012 Decision – as she could arguably have done – upon the basis that once the typographical error was corrected the other errors did not matter because, even corrected, the Claimant would never achieve the requisite 75 points. Sensibly, she adopted the pragmatic course of reconsideration.

(iv) The relevance of the 2013 Decision

34. With regard to the 2013 Decision the Claimant contends that this should be ignored as irrelevant. The nearest the Claimant comes to addressing the decision is in paragraph 7 of his skeleton where the following is stated:

"The D's subsequent decision in July 2013 does not remedy the error identified in these proceedings, nor has the D sought to consent to amend the grounds for JR, thus that decision is irrelevant to these proceedings".

35. As to the 2013 Decision the Claimant does not explain why the analysis set out therein is unlawful. There is no explanation as to why it does not cure the defects in the earlier decision, and on its face it does precisely that. Further, as to the objection as to the admissibility of arguments on the part of the Defendant based upon the new decision it would in my view be wholly unrealistic to ignore the 2013 Decision. It is an integral part of the facts of this case. It has been in force for approaching 10 months. Had this judicial review proceeded exclusively upon the basis of the 2012 Decision then the Claimant would have had a stronger case for contending that it contained sufficient errors to be quashed and for the matter to be remitted to the SSHD to be re-taken. In such a case I would have been required to consider whether there was any utility in remitting the matter. In this regard I could not sensibly have ignored the existence of the 2013 Decision, nor the fact that it lay unchallenged. Further, had I been minded to remit the matter I would not have directed the SSHD to remedy solely those parts which prejudiced the Claimant leaving un-remedied those erroneous parts of the decision which assisted the Claimant. I would have simply have quashed the decision as a whole and remitted it. This would have left the SSHD to repair the entire decision: warts and all. This indeed is what the SSHD did, voluntarily, in the light of the grant of permission and there has been no challenge to the new decision. I cannot ignore its existence.
36. The answer to Ground 1 therefore is therefore: (i) A court would have been entitled to read the 2012 Decisions sensibly and in the round and to ignore the typographical error. Had the Court done this then it could have come to the view that the other errors were immaterial; but (ii) in any event, the 2012 Decision was withdrawn and the 2013 Decision was substituted in its place and this was correct and has not been challenged.
37. In these circumstances Ground 1 fails.

Ground 2: The discrimination argument / abuse of process

38. The single judge gave leave only in relation to Ground 1. He explicitly refused to grant leave to challenge the 2011 Decision or the decision of the FTT or that of the UT in relation to that decision: See paragraph [21] above.
39. In paragraph 7 of his skeleton argument the Claimant argues that if the Court accepts the Defendant's late amendment to her decision (re the 2013 Decision) that "…in these circumstances it is unfair on her to resist the C challenging the 2011 refusal".
40. Grounds 2 and 3 originally operated upon the basis that had the FTT applied the correct test in 2011 then the Claimant would have been entitled to leave to remain upon the same basis as did his fellow students who obtained from the FTT judgments in their favour which were inconsistent with the judgment made in relation to the Claimant. It was argued that what followed was fundamentally discriminatory and hence unfair and that the SSHD should have used her exceptional circumstances power to grant his leave to remain.
41. It is not necessary to delve into detail on this point because the correctness of the decision of the FTT and UT in the case of the Claimant (and a fortiori the incorrectness in the case of his fellow students) has been confirmed by the Court of Appeal in Malik Sohail Kamran & Samina Gul v SSHD [2014] EWHC Civ 196. This makes clear (cf paragraph [53]) that "the only qualifications" which can be recognised for the award of points where the IR specify that an assessment of the status of that qualification by 'UK NARIC' is required are those deemed acceptable by the UK National Recognition Information Centre ("NARIC"). This has the task of assessing both UK and non-UK qualification for their comparability with qualifications available in the UK. It is common ground that the Claimant's qualifications were not in fact UK NARIC confirmed. As set out at [4] of this judgment, the 2011 Decision was made on the basis that the Claimant had not satisfied the English Language requirement in the applicable part of the IR relating to applications for leave to remain as a Tier 4 (General) Student migrant. One of the ways in which this could be done was if an applicant had completed a qualification in one of a number of English speaking countries (including the UK) which was deemed by UK NARIC to be of equivalent standard to a UK recognised bachelor's or higher degree. The Claimant's fellow MBA students, whose applications for leave to remain to study for their MBAs had also been refused in 2011 by the SSHD, had succeeded before the various FTT Judges who dealt with their appeals by relying on a diploma which they (and the Claimant) had all obtained in the UK but in respect of which no evidence was presented that it had (as the IR required) been rated as equivalent to a UK recognised degree by UK NARIC. In the light of this jurisprudential set back Mr Jafar modified his argument. It now runs thus: At the time the Claimant made his application he should have been treated in the same way as was his fellow students, even if they were advantaged by incorrect FTT decisions. As to the law everyone misunderstood the need for UK NARIC confirmation; his college was confused; he was confused; his lawyers were confused; the FTT that ruled upon his fellow students' appeals were confused; the end result was unfairness which arose quite irrespective of the decision of the Court of Appeal. He says that this meant that the SSHD should have treated his case as exceptional and given him leave to remain so as to treat him equally with his fellow students.
42. There are hence two issues for me. The first point I must decide is whether this is a case where I should reopen the issue notwithstanding the refusal of permission by the single judge and the failure by the Claimant to seek to renew his application for permission orally. Only if I decide to reopen this matter do I need to consider the Claimant's reformulated exceptional circumstances/discrimination point.
43. As to the first point I am quite clear that I should not be considering the merits of the point. In this regard the following features of the case apply:

i) The Claimant clearly must be taken to have known when he applied to enrol for the MBA course that this would end at a point in time he had no extant leave to remain.

ii) He then (after enrolling) made his application to the SSHD which was refused and he appealed to the FTT but did not attend the appeal and did not seek an adjournment.

iii) He subsequently made an application for permission to appeal to the UT out of time. In his application the Claimant cites in support of his arguments (at paragraph [11]) 13 instances where student colleagues of the Claimant succeeded before the FTT on what he submitted was exactly the same argument as he now sought to raise. He pointed out that the SSHD did not appeal any of these judgments.

iv) However the application was refused (i) on procedural grounds and (ii) on the merits of the FTT's legal reasoning in his case.

v) The Claimant did not seek judicial review of the decision of the UT upon the basis of a point of law.

vi) Thereafter, the Claimant made a fresh application for leave to remain.

vii) The application was refused (the 2012 Decision) and the Claimant sought judicial review of the resultant refusal and the 2011 Decision.

viii) Permission was granted on one ground relating to the admitted errors in the 2012 Decision. The challenge to the 2011 Decision was refused permission upon the twin basis (i) that the application was manifestly out of time and (ii) that the Claimant had availed himself of alternative remedies viz statutory appeals.

ix) The Claimant did not seek leave to renew his application for permission in light of the decision of the single Judge refusing permission.

x) The SSHD, in order to cure the errors in the 2012 Decision, adopted the 2013 Decision.

xi) The Claimant has not sought judicial review of the 2013 Decision.

44. The Claimant now cites in support of his argument that he should be allowed to re-run his previous arguments in relation to the 2011 Decision the fact that the Defendant seeks to rely upon the July 2013 Decision. There is however no logical connection between the two matters.
45. It is now commonplace for applicants for leave to remain to use judicial review proceedings as a means of prolonging a residence in the United Kingdom that the SSHD has found to be unlawful and, in numerous cases, where the specialist appellate tribunals have upheld that finding.
46. In this case the Claimant seeks to raise arguments about the 2011 Decision notwithstanding the facts and matters recited above in paragraph [43] which include that he has no permission to raise these arguments, that he never sought to challenge the 2013 Decision and that no application was ever made to renew the application for permission.
47. In R (on the application of Cart) v Upper Tribunal [2011] UKSC 28 the Supreme Court limited the circumstances where judicial review should lie from a decision of the UT. Lady Hale (essentially expressing the judgment of the Court in the English appeal) applied a principle of proportionality. She stated:

"41. The consideration which weighed most heavily with the Court of Appeal in Sivasubramaniam was proportionality. There must be a limit to the resources which the legal system can devote to the task of trying to get the decision right in any individual case. There must be a limit to the number of times a party can ask a judge to look at a question. The Court of Appeal took the view that, in the sorts of cases coming before the district judges in the county courts, it was enough if both the district judge and the circuit judge could detect no arguable case that the district judge had gone wrong. There was no need, save in the two extreme and exceptional cases identified, for a High Court judge to take another look – especially as, under the current judicial review procedures, it would then be possible for the case to be looked at another four times."

48. Lord Philips agreed with Lady Hale

"93. What would, however, be totally disproportionate, is that this judicial supervision should extend to the four stage system of paper and oral applications first to the Administrative Court and then, by way of appeal, to the Court of Appeal, to which the ordinary judicial review procedure is subject. What are first required are readily identifiable criteria for the grant of permission to seek judicial review. That these exist should be capable of demonstration by paper applications, and my firm view is that applications for judicial review should be restricted to a single paper application, unless the court otherwise orders. This is, however, a matter for the Civil Procedure Rule Committee. "

94. As to the criteria, I have been persuaded, for the reasons given by Lady Hale, that the test laid down by the Court of Appeal in Siva is not the most satisfactory, and that the test governing second appeals in the courts of England and Wales should be adopted.

95. For these reasons I endorse the conclusions reached by Lady Hale. I consider, however, that the procedural change, the possibility of which she contemplates in paragraph 58 of her judgment, will prove a necessity. I concur in the order that she proposes at para 60."

49. The present case does not concern a judicial review of a UT decision. The Claimant seeks to unravel history and challenge the decision of the SSHD in June 2011 without regard to the subsequent procedural history. The Claimant has had multiple chances to raise the points he now seeks to raise and he has not availed himself of all the available avenues of redress. The Claimant has taken strategic choices throughout this case including: not seeking an adjournment of his FTT appeal hearing; not appealing in time the resultant adverse decision; not seeking to raise by way of judicial review the point he now wishes to raise in the light of the UT refusal of permission; not seeking to renew orally the refusal of the single judge to challenge these points; and, not seeking to challenge the 2013 Decision.
50. There has to be finality in litigation. What is the point in instituting an appellate process with time limits and residual supervision by the High Court if they can then be ignored with impunity? In my judgment to permit the entire case to be thus unravelled would be to undermine the decision making and appellate and supervisory processes that Parliament has put in place and would be disproportionate and an abuse of process.
51. These sentiments are echoed in the judgment of the Court of Appeal in Kamil Erdogan v SSHD [2004] EWCA Civ 1087 in relation to the extent to which courts should exercise discretion in relation to appeals. The facts concerned the power to make payments to asylum seekers. The respondent claimed asylum which application was refused. She appealed to an adjudicator but the appeal was dismissed. The time for appealing expired and, six days thereafter, she applied for permission to appeal. The appeal tribunal informed her that her appeal had been lodged out of time and would be likely to be refused in the absence of adequate reasons for the delay. The Court of Appeal emphasised that "as a matter of general approach to time limits in connection with an appeal" (ibid paragraph [15]) an appeal in time had a different character in law to an appeal out of time. This was important in the context of payments to asylum seekers since one aspect of the system was to reduce delays in the appeal system "and to prevent the system being abused by repeated appeals" (ibid paragraph [18]). The Counterfactual was considered – were this to be wrong then however long the delay in instituting appeal proceedings the applicant came back within the system (ibid paragraph [19]). In my view the sentiment expressed in relation to asylum benefits applies here. In this case the Claimant has played the system to effect. But that does not mean that he should be able to continue to raise points that he has already had ample chances to challenge, and has indeed challenged, without success.
52. These two grounds of challenge accordingly fail as an abuse of process.
53. I will, notwithstanding the above, refer briefly to the Claimant's reformulated exceptional circumstances argument. With all respect to the attractive way in which Mr Jafar put the point it is not arguable. It now (necessarily given the Court of Appeal) operates upon the basis that multiple bad turns deserve yet one further bad turn. In this case and in the light of the Court of Appeal in Kamran (see paragraph [41] above) the FTT and UT in fact came to the correct result. The FTT Judges in relation to the Claimant's fellow students did not. This does not mean that there has been discrimination. It is of course unfortunate for the Claimant that the same error was not made in relation to him as was made in relation to his fellows. But that does not make the case one of discrimination nor exceptional.

Ground 4: Article 8 of the Convention – education and post education rights

54. Finally I address briefly a point which Mr Jafar was compelled to abandon in the course of oral argument given the state of the authorities but in respect of which an important point is worth reiterating. The basis upon which it was initially said that the Claimant's right to respect for his private life under Article 8 ECHR was violated was that the Claimant has spent considerable sums on his education in the United Kingdom with a view to acquiring skills that would prove "invaluable to others":

"There should come a time when it is obvious to the Secretary of State that it is only right to allow the Claimant to complete what he started and disproportionate otherwise"

55. The Claimant came to the United Kingdom to further his education, which he has now done. He seeks leave to remain now for purposes other than education. In Patel and Others v Secretary of State for the Home Department [2013] UKSC 72 Lord Carnwath emphasised the distinction between private life and the right to pursue education:

"57. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ's call in Pankina for 'common sense' in the application of the rules to graduates who have been studying in the UK for some years … However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8."

56. The Claimant in the present case has now completed his education and there can be no basis for contending that when a course of education comes to an end some new, free standing, right to exploit that education in the United Kingdom emerges. This has been confirmed by the UT in Nasim & Others (Article 8: Pakistan) [2014] UKUT 25 (IAC):

"19. It is important to bear in mind that the "good reason", which the state must invoke is not a fixity. British citizens may enjoy friendships, employment and studies that are in all essential respects the same as those enjoyed by persons here who are subject to such controls. The fact that the government cannot arbitrarily interfere with a British citizen's enjoyment of those things, replicable though they may be, and that, in practice, interference is likely to be justified only by strong reasons, such as imprisonment for a criminal offence, cannot be used to restrict the government's ability to rely on the enforcement of immigration controls as a reason for interfering with friendships, employment and studies enjoyed by a person who is subject to immigration controls.

20. We therefore agree with Mr Jarvis that [57] of Patel and Others is a significant exhortation from the Supreme Court to re-focus attention on the nature and purpose of Article 8 and, in particular, to recognise its limited utility to an individual where one has moved along the continuum, from that Article's core area of operation towards what might be described as its fuzzy penumbra. The limitation arises, both from what will at that point normally be the tangential effect on the individual of the proposed interference and from the fact that, unless there are particular reasons to reduce the public interest of enforcing immigration controls, that interest will consequently prevail in striking the proportionality balance (even assuming that stage is reached).

21. In conclusion on this first general matter, we find that the nature of the right asserted by each of the appellants, based on their desire, as former students, to undertake a period of post-study work in the United Kingdom, lies at the outer reaches of cases requiring an affirmative answer to the second of the five "Razgar" questions and that, even if such an affirmative answer needs to be given, the issue of proportionality is to be resolved decisively in favour of the respondent, by reference to her functions as the guardian of the system of immigration controls, entrusted to her by Parliament."

57. There is no other evidence relied upon as to the Claimant's genuine private life. There is no suggestion that he has married, or had children or otherwise has severed his connection with Pakistan such that he would have no private life were he to be returned there. None of the usual factual matters which are germane to this issue have been raised. And nothing which would amount to exceptional circumstances is even prayed in aid.
58. It follows in my judgment that this ground of challenge fails.

Conclusion

59. For all of the above reasons this application for judicial review fails.