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
		4 November 2014

1. MR JUSTICE CRANSTON: The claimant is a national of China who challenges by means of judicial review a decision of the Secretary of State to refuse her application for an extension of her leave as a Tier 4 general migrant. It is a very unfortunate case in which the claimant has been badly let down by the agents she employed -- the Overseas Student Service Centre Limited (the "OSSC") -- a company which provides services in relation to the completion of migrant applications like this. As a result of what happened in this case, they have apologised to the claimant and they have refunded her application fee. That, however, is no consolation at all for what occurred.
2. The background is that on 10 September 2011 the claimant was granted leave to enter the United Kingdom as a Tier 4 general student migrant. That leave continued until 13 September 2012. The claimant was undertaking a BA in Business and Management at the University of Northampton. She graduated in June 2012. She wanted to continue her studies in this country and was admitted to study a MSc in Events Management at Bournemouth University at the beginning of September 2012.
3. On Friday 7 September 2012 she entered into a contract with OSSC to make her application to extend her leave to remain as a Tier 4 general student migrant so she could undertake the Bournemouth course. She signed the application on Wednesday 12 September. The OSSC signed it on the 13 September and lodged the application the following day, Friday 14 September. That was one day late. On the 18 September the Secretary of State wrote to the OSSC in standard format acknowledging the receipt of her application. The letter stated:

"If there is any problem with the validity of the application such as missing documentation or omissions on the form, the caseworker will write to you as soon as possible to advise what action you need to take to rectify the problem."

4. The claimant had a bank account with Lloyds Bank in Bournemouth. On 9 September it had issued a statement about her account to be included with her application. That showed that over the summer of 2012, there had been several payments into her account so that on 3 September the balance was £7,539.62. However, there was a payment out on 4 September of £4,400, leaving a balance of £3,139.62. We now know that that payment out was for rent in advance for an assured short-hold tenancy in Bournemouth. There were no further movements on the account that week.
5. On 28 December 2012 the Secretary of State refused the claimant's application for an extension of leave to remain. The Secretary of State stated that the claimant did not have an established presence in studying in the UK within the meaning of paragraph 14 of Appendix C to the Immigration Rules. That was because her leave had expired on 13 September -- a day before she made the application. Thus she did not have leave at the time of the application. Since she did not have an established presence and was studying outside inner London, she was required to show that she had the necessary funds to cover the fees for the first academic year and £820 per month for 9 months for herself, some £7,200. If she did have an established presence then she would have only had to demonstrate that she had £800 for two months for herself.
6. Under Paragraph 1A of Appendix C to the Immigration Rules, the applicant also had to demonstrate that she had this sum in her account for 28 days prior to the date of the closing balance of her most recent bank statement. In her case this was 28 days prior to 9 September 2012 -- the date of the bank statement. However, as I have said, because of the payment out on 4 September, the claimant was not able to demonstrate that she had that amount in the account. In the circumstances the Secretary of State concluded that the claimant did not satisfy the requirements of the Immigration Rules. She also stated that there was no reason to exercise her discretion to grant leave outside the rules. The application was therefore rejected. The letter stated that the applicant did not have right of appeal since her application was made when she did not have leave. However, she could make a further application for an extension of leave from abroad.
7. The claimant then wrote to department in January 2013 explaining the mistake on the part of OSSC.
8. Paragraph 245AA of the Immigration Rules provides:

"(a)Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the Entry Clearance Officer, Immigration Officer or the Secretary of State will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).

(b) If the applicant has submitted specified documents in which:

. . .

(ii)A document is in the wrong format (for example, if a letter is not on letterhead paper as specified);

the Entry Clearance Officer, Immigration Officer or the Secretary of State may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received at the address specified in the request within 7 working days of the date of the request."

Otherwise the rule contemplates that only documents submitted with the application will be considered.

9. Paragraph 245ZX of the Immigration Rules provides:

"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 does not meet these requirements, the applicant will be refused.

. . .

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

10. Appendix C of the Immigration Rules provides as follows:

1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must meet the requirements listed below:

(a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application;

. . .

(c) If the applicant is applying as a Tier 4 Migrant, the applicant must have had the funds referred to in (a) above for a consecutive 28-day period of time;

. . .

(h) The end date of the 90-day and 28-day periods referred to in . . . (c) above will be taken as the date of the closing balance on the most recent of the specified documents (where specified documents from two or more account are submitted, this will be the end date for the account that most favours the applicant), and must be no earlier than 31 days before the date of application.

11. Table 11 of Appendix C states an the applicant has to 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 £820 for each month of the course up to a maximum of nine months.
12. In submissions on behalf of the claimant, Mr Mold advances two grounds. The first is the failure to apply paragraph 245AA. He contends that this was a case of a document that was in the wrong format, consequently the applicant should have been requested to submit it in the right format, in other words, a bank statement which would have finished its entries on 3 September such that the applicant could have demonstrated that she had the requisite £7,200 in the account. He quotes the decision of Simler J in R (on the application of Patel) v Secretary of State for the Home Department [2014] EWHC 1861 admin, that "format" means the way something is arranged or set out. In Mr Mold's submission the bank statement was in the wrong format in that it was dated 9 September. If it had been set out differently, the Immigration Rules would have been satisfied. The applicant could quite easily have obtained a further statement to satisfy the rules.
13. In my view this argument goes nowhere. To my mind this is a document which was not in the wrong format. The fact is that it did not contain the correct information. It had to contain information demonstrating that the applicant had at the date of the statement, 9 September, that she had £7,200 in her account. Unfortunately she had paid the rent, as we now know, which reduced the balance below. But the fact is that giving paragraph 245AA its natural and ordinary meaning, and in circumstances where a rigid application of the immigration rules is necessary -- a point underlined by the Court of Appeal in Miah v Secretary of State for the Home Department [2012] EWCA Civ 261 -- this ground fails; see in addition R (on the application of Gu) v Secretary of State for the Home Department [2014] EWHC 1634 at paragraphs 23 and 24.
14. Mr Mold's second point is that the evidential flexibility policy should have been applied in this case. If applied the policy would have led to the Secretary of State requiring the claimant to request a bank statement which showed the balance available up to 3 September. Because the application was late, the requirement that the applicant have £7,200 was triggered. This was an otherwise compliant application -- the only gap being the full amount was not in the account on 9th September. It was apparent, in Mr Mold's submission, that the missing document could be obtained.
15. In my view the evidential flexibility policy does not apply in this sort of situation. It is designed to address minor errors and omissions. The basic point is that there was no omission or minor error here. The fact is that the bank statement did not contain the requisite information.
16. The third point advanced by Mr Mold relates to legitimate expectation. It builds on the letter sent to OSSC on 18 September. He contents that if the application had been in time, only £1600 would have been required. The agents were told in that letter that the Secretary of State would afford them an opportunity to address this type of deficiency. Mr Mold referred to the leading authority Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, see in particular at paragraphs 45, 46 and 50.
17. In my view the stumbling block here is that there is no evidence that the claimant ever saw this letter sent to her agent, OSSC, so it is very difficult to build a case of legitimate expectation on the back of it. In any event, that letter is in standard form, and no doubt designed to cover a whole range of situations. It did not contain the unequivocal representation to the claimant that it would permit the Secretary of State carry out the detailed check of the application form, so as to inform her that if she obtained a statement with a cover point from 3 September, all would be well.
18. As I said at the outset, this is a most unfortunate case, the claimant has been badly let down. It may seem to the outsider that it is very much an application of technical rules. For reasons given by the Court of Appeal, the technical rules are absolutely vital to the proper administration of immigration control. I dismiss the application.