England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th November 2014

Helen Mountfield QC :

Introduction

1. This is a challenge to a decision of the Secretary of State for the Home Department (the Defendant) dated 21 January 2013, in which she refused the Claimant's application for leave to remain in the United Kingdom as a Tier 4 (General) Student.
2. Permission to bring this challenge was refused on the papers, but granted at a renewed oral hearing on 17 January 2014.
3. The claim proceeds on two grounds. The first is that the application in the change to the immigration rules to the Claimant so as to prevent her from receiving leave to remain as a Tier 4(General) Student unfair. This is said to be so because the operation of the transitional provisions so as to prevent a person applying for such a visa after 8 July 2012 but before 1 October 2012 from relying upon old (and longer) grace periods in respect of overstaying was insufficiently clearly signposted, and because the period of 'tolerated' overstaying for those applying between 13 June and 8 July 2012 was shorter, insofar as it was applicable to the Claimant. than the transitional period applied to other groups of prospective applicants for Tier 4 student visas, because she already had a period of overstaying. The second ground is that in declining to grant the Claimant a Tier 4 visa on a discretionary basis outside the immigration rules (as amended), the Defendant acted unlawfully or unfairly.

Background

4. The Claimant is a 21 year old Nigerian woman who has lived in this country since 28 August 2009 when she was sixteen years old. She is from a professional background and entered the United Kingdom on a Tier 4 (child) student visa to study at St Andrew's College, a school which held a licence to sponsor Tier 4 students. St Andrew's issued the Claimant with a Confirmation of Acceptance of Studies (CAS). Holding a valid CAS is a mandatory requirement for holding a Tier 4 (student) visa. The Claimant's leave to remain under her original Tier 4 (child) student visa ran until 10 October 2011.
5. However, the Claimant was sitting AS level science courses, and during the first term of the 2010/2011 academic year, decided that she was better suited to studying social sciences. She left St Andrew's College and enrolled at Bishop Douglas School to start social science courses. However, Bishop Douglas School is not a Tier 4 sponsoring institution. It could not provide the Claimant with a valid CAS, and – having left St Andrew's – she could not continue to rely upon the CAS which they had issued. Accordingly, later during that academic year, the Claimant's guardian, Mr Andrew Adelekun (an adult friend with whom she was living) took legal advice and with his help, at the end of the 2010/11 academic year, the Claimant obtained a place at Westminster Kingsway College (WKC) which is a tier 4 sponsor school. She paid fees for a full academic year, and on 30 September 2011 (shortly before her Tier 4 (Child) Student visa expired), the Claimant submitted a second application for leave to remain as a Tier 4 (General) Student based on a CAS issued by WKC.
6. The Claimant did not remain a student at WKC. After commencing her studies there, she discovered that the syllabus did not match that at Bishop Douglas, so she ceased attending WKC and continued to study at Bishop Douglas, where she took (and successfully passed) her A levels. The consequence of non-attendance at WKC was the Claimant's CAS was withdrawn by WKC on 16 November 2011, as was required of it under the terms of its own sponsors licence. Thereafter, the Claimant did not have a valid CAS.
7. The Claimant became an adult, albeit a young adult, on 23 December 2011, her eighteen birthday.
8. On 26 April 2012, the Claimant's second application for leave to remain was refused on the basis that she did not qualify for a Tier 4 (General) Student visa because she did not have a valid CAS. The Claimant did not appeal against this refusal, and her appeal rights were exhausted on 14 May 2012. At that stage, she was an illegal overstayer.
9. The Claimant's guardian, Mr Adelekun, says that he did not tell the Claimant of the 26 April 2012 decision, since he did not wish to disrupt her studies. However, she had legal advice from a firm of solicitors and the decision was sent to her at their address, which was the one she had given for correspondence. It was the Claimant, not Mr Adelekun, who was the solicitor's client and legal responsibility for the consequences of failure to appeal rests with her. The Claimant points out that she would not, in any event, have been eligible for a Tier 4 visa after her CAS was withdrawn from WKC.
10. Although it is unclear from the evidence how much the Claimant herself followed or understood the relevance of the factual situation for her immigration status, her thinking seems to have been that the best course of action was for her to remain in the country as an overstayer until she had her A level results, an offer from a university and had obtained a valid CAS from the university, and then to apply for a Tier 4 (general) Student visa on the basis of that CAS. During most of the 2010/2011 academic year, the Defendant's published policy on eligibility for a Tier 4 (general) student visa provided that such a visa would be granted if the substantive eligibility criteria were made out – which they would been if the CAS had been obtained - provided the applicant had not overstayed a previous visa by more than six months.
11. On 13 June 2012, however, the Immigration Rules changed. As described below, the consequence of the rule change was that any application made for a Tier 4 (student) visa on or before 8 July 2012 was determined under the Defendant's pre-existing policy, but for applications made on or after 9 July 2012, the rules would be applied as at the date of determination. Thus, for applications made on or after 9 July 2012 but determined on or after 1 October 2012, the new rules would apply.
12. Under the new rules, a person who had overstayed a previous visa by more than 28 days would be refused a new visa on that basis. Provided he or she left the country within 90 days of the end of a previous period of leave, however, such a person could re-apply from abroad. No re-entry ban would be imposed. (That 90 days would have expired in the Claimant's case, on 25 July 2012).
13. The Claimant received an offer of a place to study at Durham University on 24 August 2012, and received a CAS number from them on 13 September 2012. The Claimant made an application for leave to remain on 27 September 2012 and started her course of study at Durham.
14. However, on 21 January 2013, the Claimant was refused leave to remain by the Defendant on the basis that at the time of her application she had overstayed for more than 28 days. This decision was challenged by way of an application for judicial review made on 18 April 2013. Permission was granted on 17 January 2014. The Defendant reconsidered its decision in the light of that grant of permission, but on 25 February 2014 maintained its decision. There is no separate challenge to that reconsideration decision which – as did not appear to be contested - is relevant, if at all, to relief.
15. The Claimant completed her first year of study at Durham and (with the Defendant's approval) was permitted to sit her summer exams.

The Legal Background

16. Although they are laid before Parliament for 40 days using the negative resolution procedure under section 3(2) Immigration Act 1971, immigration rules are not formally secondary legislation. Rather, as the House of Lords explained in Odelola v SSHD [2009] UKHL 25, [2009] 1 WLR 1230, they are described in section 1(4) of the Immigration Act 1971 as "the rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the UK of persons not having a right of abode." As Lord Brown stated in Odelola, at [39]:

"… changes in the immigration rules, unless they specify to the contrary, take effect whenever they say they take effect with regard to all leave applications, those pending no less than those yet to be made".

17. And, as Lord Neuberger observed in the same case at paragraphs 53-60, although a presumption against retrospectivity can apply to changes in immigration rules, the question as to whether it does so is a question of fairness. In that case, an application for leave to remain was made under immigration rules which, had the application been determined on the date it was made, would have permitted the applicant to remain. After the application was made, but before it was determined, the rules changed in such a way as to mean that the application was refused.
18. It was held that this was not unlawful. The Appellant in that case could only have expected that her claim would be determined under policy as it stood on the date of determination, and there was no sufficient unfairness to mean that the old rules must apply to an application made before the change was announced. Lord Neuberger said at 61 that if a statement of change of rules was not intended to be applied to existing applications, that would be spelled out in the rule change.
19. In the present case, the rule change made on 13 June 2012 was contained in a Statement of Changes to the Immigration Rules (HC 194) which at paragraph 70, inserted a new paragraph (m) into rule 245ZX. This provided that in order for an applicant to be eligible for a Tier 4 (General) Student visa one criterion was that:

"the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded".

20. As envisaged in the speech of Lord Neuberger in Oyelola, HC 194 made specific provision as to the timing of implementation. It provided that with the exception of specified paragraphs, which included paragraph 70, the rule changes took effect on 9 July 2012. Paragraph 70 was to take effect on 1 October 2012. However, if an application for entry clearance, leave to remain or indefinite leave to remain had been made before 9 July 2012, it would be decided in accordance with the rules in force on 8 July 2012.

Discussion

Unfairness in transitional arrangements

21. The effect of this transitional arrangement as contained in HC 194 was in my view quite clear. Applications made on or before 8 July 2012 would be decided under the old immigration rules, whenever the Home Office got round to determining them (whether that date was before or after 1 October 2012). Applications made on or after 9 July 2012 would be determined on the basis of whatever policy was in force at the point of determination. Thus, if they were determined before 1 October 2012, they would be decided under the old immigration rules. If they were determined on or after 1 October 2012, they would be determined under the new rules.
22. Since there was no obligation to have any transitional provisions at all, I see no basis for suggesting that the change in the rules was unfair in that it had slightly different impact on those who were already overstayers on 13 June 2012 when the changes were announced, since they only had 25 days to put in an application in accordance with the old rules (ie on or before 8 July 2012). It appears to be argued that this was a difference in treatment because those applying within the transitional period who were already overstayers would have a shorter time to put their affairs in order than those who were not or than others applying thereafter. I do not see any unfairness in that: indeed, I do not see that they would have any shorter period. With effect from the date of the announcement, everyone would now have a six month period of grace as an overstayer for applications made before 9 July 1992, and everyone would only have a 28 period of grace for applications made on or after that date if they were determined after 1 October 1992. The impact of that announcement might depend upon the length of period of overstaying beforehand, but I do not see that it is unfair for a person to have on 25 days of continued enjoyment of a longer period of tolerance of overstaying rather than 28.
23. It is true that the Claimant could not have 'put her affairs in order' by applied for a Tier 4 (Student) visa on the basis of her prospective study at Durham University before 9 July 2012, but that is not because of any change to the immigration rules. Rather, it is because at no date between 13 June and 9 July 2012 did she have a valid CAS, and she had been an illegal overstayer since her appeal rights had expired on 14 May 2012.
24. She, her legal advisers and her guardian might perhaps have thought that this was unproblematic before 13 June 2012 on the basis that on the Defendant's policy as it stood before that date, an application for a new Tier 4 visa could be made once a valid CAS had been obtained; a period of overstaying of up to six months would be ignored; and this was likely to avail the Claimant because she was likely to have a new valid CAS from a university within six months of 14 May 2012.
25. However, one of the only certainties about the immigration rules is that they are susceptible to frequent change. It is an applicant's responsibility to comply with the requirements of the immigration rules as they change from time to time. The Claimant, or at least she and her advisors, are to be treated as having known from 13 June 2012 that she could not be sure that a period of overstaying longer than 28 days would not be held against her if she did not apply for a Tier 4 (General) Student visa before 9 July 2012. It is also assumed in law that they should have known that she could leave the United Kingdom before her period of overstaying extended to 90 days, and that if she had done so, and applied from abroad for a Tier 4 (Student) visa as soon as she had a valid CAS, that - on the basis of the immigration rules as they then stood – her application would have been successful.
26. The UKBA sought to clarify this by a notice on their website from 29 June 2012 which provided, under the heading "Change to applications from overstayers":

"From 1 October 2012 if you have overstayed your leave by more than 28 days any application for further leave will be refused. This change in the immigration rules will affect applicants applying for further leave under the points-based system … This change is in line with the new immigration rules coming into effect for the family migration route from 9 July 2012. If you have limited leave to remain you must ensure you apply to extend your leave, if needed in time. If you wish to remain in the UK after the 28 day period, you should leave the UK and reapply for a visa".

27. I see some force in the argument that this statement was not entirely clear as to the position of those applying after 9 July who had already overstayed by more than 28 days on that date, but in my view, the clear statement in HC 194 itself could not be rendered less powerful by a somewhat opaque public notice. That notice certainly could not be said to give rise to a legitimate expectation as to how applications made after 9 July but before 1 October would be treated.
28. On 4 September 2012, the Defendant published a further notice on the UKBA website under the heading 'Changes to the applications from overstayers from 1 October 2012', which was a little clearer. It stated, so far as is material:

"In June 2012, we announced that from 1 October 2012, applications for further leave will be refused if you have overstayed your leave by more than 28 days at the point you made your application. The new rules already apply to applications made under the family migration route and from 1 October 2012, will apply to applications under the remaining routes which were made on or after 9 July 2012."

29. Whilst this was clearer than the 29 June notice, the applicant in any event had clear notice of changes in the immigration rules from the language of HC 194 itself. If she had fulfilled the substantive requirements for a Tier 4 visa when the change was made, she could have applied before 9 July 2012 for that application to be considered under the old rules. As she did not, she could have left the country (in which she was, after all, by then an overstayer) and have made a valid prospective application without penalty.
30. I appreciate that the Claimant has been unlucky as to the combination of dates in relation to rule changes and university offers, but she was not placed in an impossible position, and I see no conspicuous unfairness in applying the statements of changes to immigration rules as per the clear language of HC 194. Indeed, I regard myself as bound to do so by the decision of the House of Lords in Odelola.

Discretion

31. That then leaves the question of discretion. After the statement of changes was published and implemented, the Defendant continued to have a discretion to take into account exceptional circumstances and to allow applications for Tier 4 visas to succeed if there had been such circumstances which had prevented an application being made in time (ie before leave expired). That discretion was set out in paragraph 718 of HC 194 which provided:

"Caseworkers will continue to have discretion to consider exceptional cases. Applicants who have overstayed by more than 28 days may provide evidence of exceptional circumstances which prevented them from submitting their application in time."

32. The Defendant's Policy Guidance gives examples of exceptional circumstances, and explained that the threshold was high. It provided, so far as is material:

"If there are exceptional circumstances which prevent you from applying in time, you must submit evidence of the exceptional circumstances with your application. The threshold for what constitutes exceptional circumstances is high and will depend on the individual circumstances of the case, but for example may include delays resulting from unexpected or unforeseeable circumstances such as the following:

- Serious illness which meant that you or your representatives were unable to submit the application in time (where supported by appropriate medical documentation);

- Travel or postal delays which meant that you or your representative were unable to submit the application in time; and

- Inability to provide necessary documents.

This would only apply to exceptional or unavoidable circumstances beyond your control, such as UK Border Agency being at fault in the loss of, or delay in returning, travel documents, or delay in obtaining replacement documents following loss as a result of theft, fire or flood (where supported by evidence of the date of loss and the date replacement documents were sought".

33. It is submitted that the Defendant ought to have found that Claimant was unable to make an application to comply with the 9 July 2012 time limit because she lacked the relevant documents and this should be treated as an exceptional circumstance. But in my view, it was not unfair for the Defendant in accordance with her policy to decline to treat this as an exceptional circumstance. This was not a case in which exceptional circumstances prevented the Claimant from providing the necessary documentation; her inability to provide that documentation before 9 July 2012 was because as at that date she did not meet the substantive requirements of a Tier 4 visa application.
34. I see no unfairness in the Defendant's decision in accordance with her policy not to exercise her discretion outside the rules so as to grant a Tier 4 student visa in the circumstances of this case.
35. I should say for completeness that before the 21 January 2013 decision was taken, it was not suggested that the failure of the Claimant's guardian to tell her of the April 2012 refusal and also her relatively young age ought to have been taken into account as exceptional circumstances. That was suggested during the course of the permission application, and in the reconsideration letter of 25 February 2014, the Defendant concluded that this made no difference. I see no error of law in that result. So even if that had been a live issue in the decision under challenge it would have made no difference.
36. Accordingly, this application for judicial review is dismissed.