QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
Sitting as a Judge of the High Court
|THE QUEEN ON THE APPLICATION OF ULLAH||Claimant|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Ms Shaheed Fatima (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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"Mr Malik has, however, persuaded me that ground 2 is arguable. His case is that, while on the construction of paragraph 14 of Appendix C to the Immigration Rules on its own the word 'current' obviously means 'current' (ie unexpired) leave to remain, the term may be open to a different construction in the light of the Secretary of State's own guidance documented cited by Mr Malik at paragraph 27 of his skeleton argument. This suggests that an applicant may have an established presence in the United Kingdom if she has had recent permission to stay as a Tier 4 (General) Student."
He then goes on to deal with the decisions of Adedoyin and Pokhriyal, which he records as having been handed down after the first instance judgment in Behary.
"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.
(d) the applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C."
Appendix provides at paragraph 10
"A Tier 4 (General) Student must score 10 points for funds. Paragraph 11 then goes on to state when those 10 points will be awarded. So far as relevant it provides that:
If studying in outer London and elsewhere in the United Kingdom
(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 the maximum of nine months.
(ii) where the applicant has an established presence studying in the United Kingdom, the applicant must have funds amounting to the course fees required either for the remaining academic year if the applicant is applying part-way through, or for the next academic year if the applicant will continue or commence a new course at the start of the next academic year, 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 two months.
Those provisions distinguish between an applicant who 'has an established presence studying in the United Kingdom' and one who does not. The funds required for the former are less than the latter."
(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."
You were last given permission to stay as a student until 30 January 2012. Therefore, at the time of your application on 31 January 2012 you no longer had any valid leave to remain in the United Kingdom and do not have an established presence studying in the United Kingdom."
She then went on to deal with the amount shown in the bank statements:
"As your bank statements state that you are in possession of no more than £2,818.12 at any point during that period, you have not demonstrated that you have the level of funds required to be granted as a Tier 4 (General) Student Migrant. It has therefore been decided that you have not met the requirements of the Immigration Rules and no points have been awarded for maintenance."
"It seems to me therefore that there is an open choice as to the meaning to be given to 'false' in the relevant rules."
At paragraph 70, which was relied on by Mr Malik, he said this:
"...it seems to me that, in a situation where a word such as here 'false', has two distinct, and distinctively important meanings, there is a genuine ambiguity which makes it legitimate, in construing Rules which are expressions of the executive's policy, to consider what the executive has said, publicly, about its rules. Clearly, what a minister says in Parliament, expressed as an assurance, and especially on the occasion of a debate arising out of the tabling of amended rules, is of particular, and may be of decisive, importance (just as the DP 5/96 policy was effectively changed by an announcement in Parliament, see NF (Ghana) above). In such a situation of genuine ambiguity, moreover, it seems to me that, perhaps exceptionally, it is even possible to get some assistance from the executive's formally published guidance, such as RFL04 or the relevant IDI. In saying that I do not that I that I am departing from the observations of Lord Brown in Mahad, cited above, about the function and status or probable general unhelpfulness of IDIs."
Mr Malik relies upon that passage and the additional remarks at paragraph 86 by Longmore LJ, where he said:
"It is unfortunate that this court has now construed rule 322(1A) to mean the opposite of what, at least on one view, it appears, on its face, to say. But one must remember that, as pointed out in MO (Nigeria)  1WLR 1230 the Immigration Rules are statements of policy not the law of the land. In these circumstances formal statements in Parliament or in correspondence with interested parties cannot be gainsaid by the Secretary of State when it comes to interpreting the Rules."
"Lord Brown gave the leading judgment, with which all other members of the court agreed. At paragraph 10, after referring to earlier authorities, Lord Brown stated that the Immigration Rules should not be construed with the strictness appropriate for a statute or a statutory instrument. Instead they should be construed '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'.
41. Later in the same paragraph Lord Brown said that the court could not take IDIs into account as an aid to the construction of the rules. I of course accept that proposition. There is, however, a qualification that should be noted.
42. If there is ambiguity in Immigration Rules and the Secretary of State publicly declares that he/she will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to that assurance. That is exemplified by the Court of Appeal's decision in Adedoyin v Secretary of State for the Home Department  EWCA Civ 773;  1 WLR 564. The relevant rule in that case provided that leave to enter would be refused where the applicant had made 'false' representations. The relevant minister said in Parliament that 'false' in this context meant not merely incorrect, but deliberately false. There were other public statements by Government officials to similar effect. The Court of Appeal construed the rule in accordance with those assurances. Rix LJ gave the leading judgment, with which Longmore and Jacob LJJ agreed. At paragraph 70 Rix LJ said that in a situation of genuine ambiguity, it was legitimate to derive assistance from the executive's formally published guidance, including IDIs.
43. I respectfully agree with paragraph 70 of Rix J's judgment in Adedoyin. I would, however, add this comment. I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government's favour. The Secretary of State holds all the cards. The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials. The Secretary of State cannot toughen up the Rules otherwise than by making formal amendments and laying them before Parliament. That follows from the Supreme Court's reasoning in R (Alvi) v Secretary of State for the Home Department  EKSC 33;  1 WLR 2208."
"In my judgment the 'natural and ordinary' meaning of the word 'current' in the phrase 'current entry clearance, leave to enter or remain or leave to remain' is plain. It means 'existing' or 'present' entry clearance or leave. It is to be contrasted with past leave or leave previously granted to an individual but which has expired or come to an end. The provision also requires that the individual 'has' that leave suggesting very strongly that it is looking to the leave that the individual presently possesses and enjoys. It does not naturally allow for leave that an individual 'had' but no longer enjoys. The sense of the rule is clear and unambiguously expressed."
If that gateway is not passed, there is no basis for reference to the IDI as an aid to construction.
"...perhaps exceptionally, it is even possible to get some assistance from the executive's formally published guidance."
The principal reliance in Adedoyin was on a letter sent by the Minister of State of the Home Department to the Immigration Law Practitioners Association and was specific to the enquiry that was made.
"Secondly, Mr Malik's submission entails 'current' leave being synonymous with 'most recent' leave and thereby including 'past' (and not existing) leave. That construction is impossible to reconcile with the plain and ordinary meaning of the word 'current' and the requirement that the individual 'has' that leave rather than he or she 'had' (in the past) the relevant leave. The IDI simply cannot defeat that meaning."
"First, I accept that the de minimis principle can be applied in the application of both statutory provisions and the Immigration Rules. That is, of course, recognised both by Dyson LJ in MD at  and by Stanley Burnton LJ in Miah ."