Scottish Court of Session Decisions

Petitioners:  Caskie;  McGill & Co

Respondent:  C Smith;  Office of the Advocate General

3 July 2014

Introduction

[1]        Mr and Mrs N, respectively the second and first petitioners in this petition for judicial review, are spouses living together in Edinburgh.  Mr N is a British citizen.  Mrs N is a citizen of the People's Republic of China.  They have two children: B now aged 18 years and C, 13 years.  They are the third and fourth petitioners.  In these proceedings the petitioners, by a late amendment tendered at the stage of closing submissions, seek declarator that the Secretary of State for the Home Office infringed their Article 8 rights by refusing to grant entry clearance to the first petitioner during the period between 15 February and 14 May 2012.  The refusal of entry clearance is alleged to have been an infringement of the petitioners’ Convention rights because it proceeded on the basis of the Secretary of State’s unlawful failure to incorporate a change to the Immigration Rules so as to provide a list of approved providers of certificates in the English language.  The petitioners also seek damages by way of just satisfaction for the alleged infringement of their Convention rights.  The case came before me for a Second Hearing, at which the parties led certain limited evidence.  Mr and Mrs N gave some evidence in support of their case.  For the respondent, evidence was led from Mr William Bouquet, head of digital content for the UK Border Agency.  Other factual aspects of the case were helpfully addressed by means of affidavits.

The facts

[2]        Ultimately there was no real dispute as to the facts of the case; these may be summarised briefly as follows.  In about 2011 the N family was living in Singapore, although B was by then attending school in Edinburgh as a boarding pupil.  Mr N is employed by a multinational corporation, whose business involves the leasing of aircraft.  He travels a great deal in the course of his work.  For reasons connected with Mr N’s employment, the Ns decided to resettle in Scotland and to this end they bought a house in Edinburgh in or about 2011.  There was, of course, no difficulty about Mr N and the parties’ sons taking up permanent residence in the United Kingdom since all three are British citizens.  So far as Mrs N was concerned, however, she required to obtain entry clearance to allow her to live in the United Kingdom as the spouse of a British citizen.  She applied for such a visa at the British High Commission in Singapore, but her application was refused on 6 May 2011; the reasons for the refusal are not material for the purposes of the present case.  Although she did not have entry clearance as a spouse, Mrs N nonetheless decided to leave Singapore with her sons on 2 July 2011; this would allow B to continue to attend school as a boarding pupil and more importantly would mean that C, for whom there was not yet a boarding vacancy at the school, could take up a place there as a day pupil whilst living in the new family home with his mother.  Mr N would visit Edinburgh when he could.  The family envisaged that they would reside permanently in the United Kingdom and accordingly, on departing from Singapore, Mrs N and her sons surrendered their Singaporean residence permits.  For some years Mrs N had possessed a multiple entry visa permitting her to enter the United Kingdom as a visitor for a period of no longer than six months at a time.  She used this visa to come to the United Kingdom in July 2011, as she was perfectly entitled to do.  In due course Mr N took up permanent residence in Edinburgh on 10 December 2011, although he has continued to travel abroad extensively as part of his employment.

[3]        Understandably, Mrs N was anxious to obtain entry clearance to live in the United Kingdom so that she did not have to continue to use her visitor’s visa.  She was advised that rather than appealing against the Singapore refusal, the appropriate procedure would be for her to make a new application at the British Embassy in Beijing since China was the country of which she was a citizen.  She therefore went to Beijing, where her parents live, on 27 December 2011 in order to make a fresh application for an entry clearance visa.  After some initial difficulties, on 11 January 2012 Mrs N made an application at the British Embassy in Beijing for entry clearance to settle in the United Kingdom as the spouse of a British citizen. 

[4]        Since November 2010 it has been a requirement under rule 281(ii) of the Immigration Rules that persons seeking leave to enter the United Kingdom with a view to settlement as the spouse of a person resident or settled here must provide an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes.  Mrs N had obtained such a certificate from an organisation known as Britain’s Education Services (BES) on 28 February 2011 and had relied on this in support of her failed Singaporean application. 

[5]        Unfortunately, by the time Mrs N submitted her new visa application in Beijing the list of approved providers had changed and BES was no longer on the approved list.  The list had been changed in April 2011.  There had been transitional arrangements, but these had expired in July 2011.  Accordingly, the Border Agency, represented by officials working at the Beijing Embassy, had no choice but to refuse Mrs N’s application for entry clearance; the notice of refusal was issued on 15 February 2012.  Those concerned with the case at the British Embassy in Beijing were, however, not unsympathetic to Mrs N’s plight.  They advised her and her specialist immigration solicitors in Edinburgh that the best practical solution to the difficulty would be for Mrs N to lodge an appeal against the refusal of entry clearance.  Such a step would allow her the opportunity to obtain a test certificate from an approved provider.  The authorities would then be prepared to treat the new certificate as if it had been available at the time of the visa application (although strictly speaking this would not be in accordance with the rules) and in effect to consider it as fresh evidence in the review process.  As the entrance clearance officer from the Beijing Embassy, Mr Lee Edwards, explained in an affidavit, the view was taken that some flexibility should be afforded to Mrs N.  The appeal was promptly lodged and Mrs N duly succeeded in obtaining a test certificate from an approved provider of English language tests in Beijing.  She supplied this to the Embassy on 15 March 2012.  It took until 27 March 2012 for the Tribunal Service formally to confirm to the Embassy that the appeal had been logged on their system and that the requisite fees had been paid.  This was a necessary step since it was only once such confirmation had been received that the entry clearance officials in Beijing could review the earlier refusal.  By that time Mrs N had come to the view that she had to return to Edinburgh because B and C were about to begin their Easter school holidays.  She returned to this country on 27 March 2012, the day before the embassy advised her solicitors that it would now be possible to issue her with an entry clearance visa.  Mrs N remained in Edinburgh, under her visitor’s visa, until 10 May 2012 when she again travelled to Beijing where, on 14 May 2012, the entry clearance visa was issued to her. 

[6]        The petition for judicial review was served on the respondent on 10 May 2013.  The petitioners claim that they are entitled to be compensated for certain financial outlays (rent, car hire, air travel and legal fees) incurred in connection with Mrs N having to live in Beijing and return there between February and May 2012; the basis of the claim is that these costs would not have arisen had the entry clearance visa not been unlawfully refused on 15 February 2012.  The petitioners also seek damages for breach of the family's Article 8 rights during the three month period of separation.  

Time bar 

[7]        The respondent argued that the petition was time-barred under section 7 of the Human Rights Act 1998.  The relevant parts of section 7 are as follows:

“(1)  A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal,

...

but only if he is (or would be) a victim of the unlawful act.

…

(5)  Proceedings under subsection (1)(a) must be brought before the end of –

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

…”

[8]        In addressing the time bar question, it seems to me that the first step is to identify the act of which the petitioners complain.  This is because the one year time limit runs from the date of that act.  In my opinion, it is clear that the act of which the petitioners complain in the present case is the decision made by the Border Agency on 15 February 2012 to refuse entry clearance to Mrs N.  It is this decision which the petitioners claim was unlawful.  The first ground on which the decision is said to have been unlawful is that it was based on the requirement contained in an Immigration Rule to obtain a test certificate from an approved provider.  The primary argument for the petitioners was that the list of approved providers should have been formally incorporated in, and thus made part of, the Immigration Rules and that the list should itself have been laid before Parliament; these steps had not been taken.  This line of argument relied on the decision of the Supreme Court in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208.  The petitioners' alternative argument, in the event that their first line of argument was rejected, was that the refusal of the entry clearance visa to Mrs N on 15 February 2012 was unlawful because at the time of the relative application the Border Agency website contained misleading information; the petitioners allege that the website contained the out of date list of approved providers, including BES, as well as the new list.  The petitioners say that an individual searching for the list of approved providers could find both the old and the new lists and that each list would have appeared to the searcher to be valid.

[9]        Counsel for the petitioners argued that the act complained of should be seen as a continuing one, which lasted until 14 May 2012 when Mrs N eventually received her entry clearance visa, having returned to Beijing from Edinburgh.  No authority was cited for this proposition.  In my opinion, the petitioners’ argument is misconceived.  It seems to me that the clear focus of section 7 is on the act which is alleged to have amounted to an infringement of a victim’s Convention rights.  In the present case, that act was the decision taken at the British embassy in Beijing on 15 February 2012 to refuse the visa on the ground that Mrs N had not supplied an English language test certificate from an approved provider.  The refusal of the visa is the decision that is alleged to have infringed the petitioners’ Convention rights.  The petitioners say that the effect of that decision was that Mrs N was unlawfully refused permission to settle in the United Kingdom; the claims for financial loss and damages for the three month separation of the family flow directly from that decision.  But the fact that the consequences of the decision resounded until May 2012 does not mean, in my view, that the act complained of should be treated as a continuing one extending to the end of the period during which loss was suffered.  There remains one single act which was, according to the petitioners, unlawful, namely the decision to refuse to grant entry clearance to Mrs N.  In these circumstances, the one year period must, I consider, be taken to have started to run on the date of the refusal of the entry clearance visa: 15 February 2012.  It had expired before the commencement of the present proceedings on 10 May 2013.  It follows that the petition is time-barred under section 7(5)(a) of the 1998 Act.

[10]      Counsel for the petitioners argued that the time bar should, in any event, be extended under section 7(5)(b) of the 1998 Act so as to allow the petition to be treated as having been timeously brought.  He maintained that this would be equitable in the whole circumstances of the case, although he put forward no concrete reason in support of the argument, which seemed to me to amount to a mere cri de coeur.  In my opinion, the argument based on the equitable override is without substance.  I note that the petitioners had the benefit of advice from a solicitor specialising in immigration law from at least the early part of 2012.  They also had the advice of counsel from early 2012.  No explanation was provided to me as to why the present proceedings could not have been brought within the one year period.  In the circumstances, I must proceed on the footing that they could have been commenced timeously and that the position is that the petitioners have simply failed to comply with the time limit for no good or justifiable reason.  If a mistake has been made, I can see no reason why that should have the effect of denying the respondent the protection of the statutory time limit.  I can identify no equitable basis sufficient to justify extension of the one year period.  I conclude, therefore, that the petitioners’ claim is time-barred and falls to be refused for that reason.

The merits

[11]      Even if the petition had not been time-barred, I would have refused it.  In my opinion, the argument based on the Supreme Court's decision in Alvi is unsound.  It is worth recalling that Alvi was decided in July 2012, some months after the material decision to refuse the entry clearance visa to Mrs N.  In Alvi it was held that the requirement to lay before Parliament statements of or changes to the Immigration Rules applied to any requirement which a migrant had to satisfy as a condition of being given leave to enter or remain in the United Kingdom; the Immigration Rules should therefore include all provisions which set out criteria which were or might be determinative of an application for leave to enter or remain.  In the later case of R (New London College Ltd) v Secretary of State for the Home Department  [2013] 1 WLR 2358 the Supreme Court held that the requirement in section 3(2) of the Immigration Act 1971 that rules be laid before Parliament before they became lawful did not apply to guidance setting out the criteria which educational establishments had to satisfy in order to qualify for a sponsor licence enabling them to enrol students from outside the European Economic Area who wished to study in the United Kingdom.  Lord Sumption (with whom Lords Hope, Clarke and Reed agreed) pointed out (in paragraph 24) that section 3(2) does not apply to all rules, but only to those which relate to "the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter."  Whilst the criteria for the award and retention of a sponsor licence were doubtless rules, they were not rules calling for compliance by the migrant as a condition of his obtaining leave to enter or remain.  As far as the migrant was concerned, the only relevant rule was that in order to obtain leave to enter or remain, he must have been issued with an electronic reference number linking to an entry in a database known as a Confirmation of Acceptance for Studies (CAS).  The rule that the migrant should have a CAS fell to be regarded as a rule laid down by the Immigration Rules.  But a question as to whether a course provider ought to have been licensed was in a different category because it did not relate to a requirement falling to be satisfied by the migrant.  Lord Sumption went on to observe that such a question could not competently form the basis of an appeal on the statutory ground (contained in section 84(1) of the Nationality, Immigration and Asylum Act 2002) that the migrant's application to enter or remain was refused on a basis "not in accordance with immigration rules".  In Alvi the essential feature of the list of skilled occupations was that it was part of the criteria for granting leave to enter or remain which the migrant had to satisfy and which determined the fate of his application.  That was not the case with the criteria for the licensing of sponsors.

[12]      In my opinion, the circumstances of the present case are analogous to those considered by the Supreme Court in New London College Ltd.  It seems to me that the requirement which Mrs N had to satisfy in order to obtain entry clearance was that she provide an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes (Immigration Rule 281(ii)).  Whether or not a particular provider was or was not included in the approved list cannot be said to be a requirement with which Mrs N had to comply.  The requirement she had to satisfy was to provide a test certificate from an approved provider.  Looking at matters in the way suggested by Lord Sumption, Mrs N could not have appealed under section 84(1) of the 2002 Act on the ground that BES ought to have been included in the approved list.  It follows that the approved list of providers did not need to be incorporated in the Immigration Rules laid before Parliament and accordingly that the refusal of entry clearance on 15 February 2012 was not unlawful on the first basis advanced on behalf of the petitioners.

[13]      I should perhaps mention for completeness that in the immediate aftermath of the Alvi decision, the Secretary of State decided, for understandable reasons of caution and good administration, to include the list of approved providers in an appendix to the Immigration Rules (Appendix O) and to lay the relevant change in the rules before Parliament.  That view was, of course, one formed before the decision of the Supreme Court in New London College Ltd and is not in any sense determinative of the legal question that I must decide in the present case.

[14]      So far as the petitioners' second line of argument is concerned, both on the facts and as a matter of law I consider it to be misconceived.  Mr Bouquet was an impressive witness, who gave entirely reliable and credible evidence about the changes in the information contained on the Border Agency website relating to the list of approved providers.  The position may be summarised as follows.  As I have already explained, the list of approved providers was amended on 6 April 2011.  There were transitional arrangements in place until 17 July 2011.  There were some initial problems with the website publication of the new list (the changes were only published in the news section and not in the friends and family section), but these issues had to all intents and purposes been resolved by 23 September 2011 at the latest.  On the strength of Mr Bouquet’s evidence, I find there to be no doubt that from that date the correct and up to date list of approved providers was properly published and accessible on the website; it did not include BES.  It might still have been possible to come across the old list of approved providers by means of detailed searching on the website or possibly by using a search engine; the transitional arrangements continued to be accessible in some areas on the website and these contained a link to a pdf file showing the old list. It is not, however, at all likely that anyone using the website for the purpose of finding the approved list of providers after 23 September 2011 would have reached the out of date list; it is very much more probable that such a user would have found the up to date list, which was clearly shown as such.  Even if someone searching the website did manage to get through to the old list, it would have been evident that it was out of date and that it no longer constituted the current approved list.  In these circumstances, I reject the petitioners' contention that the information on the Border Agency website was unsatisfactory (the term used by counsel for the petitioners) in relation to the list of approved providers as at the time when Mrs N submitted her new visa application on 11 January 2012.

[15]      In any event and whatever the facts of the matter may be, the petitioners’ second line of argument founders on the basis of logic and legal principle.  This is so because there was no evidence whatsoever that Mr or Mrs N or their solicitor consulted the Border Agency website for the purpose of preparing the new application for entry clearance submitted in January 2012.  There was no evidence that the Ns or their solicitor placed any reliance on the information contained in the website relating to approved providers of English language tests.  It follows that the petitioners cannot be said to have been victims of any infringement of Convention rights arising from the publication of the allegedly unsatisfactory information on the website.  I therefore reject the petitioners' second line of argument.  

Engagement of Article 8

[16]      I should perhaps add that I would have been minded to hold that the petitioners' Article 8 rights were not engaged even if they had succeeded in establishing that the approved list of providers should have been incorporated in the Immigration Rules and laid before Parliament or that they had been materially misled by the allegedly unsatisfactory information published on the Border Agency's website when submitting the new application in Beijing.  It seems to me that the Secretary of State's degree of culpability in either case was at a low level; the issues of which the petitioners complain amount essentially to instances of relatively minor and inadvertent maladministration, which were put right without unreasonable delay.  There could not be said to be anything in the nature of a glaring deficiency in the conduct of the public authority concerned (c.f. Anufrijeva v Southwark London Borough Council [2004] QB 1124; R (Negassi) v Secretary of State for the Home Department [2013] 2 CMLR 45).  It is significant that the Immigration Rules were amended to incorporate the approved list of providers immediately after the Supreme Court’s decision in Alvi.  Until that decision there had been no definitive ruling on the point and the position was unclear.  Moreover, the petitioners’ complaint insofar as it is based on Alvi has, to my mind at least, an unattractive technicality about it.  The position is that there was undoubtedly an approved list of providers in existence at the material time and there is no good reason why the petitioners should not have been aware of its contents and able to consult it.  The fact that the list had not been formally incorporated in the Immigration Rules and laid before Parliament made absolutely no practical difference to the petitioners.  As regards the alleged problems with the information on the website, again these were not particularly serious in my view and amounted to computer glitches of the type that can easily arise in the normal course of events without a significant degree of fault on anyone's part.  They were addressed without unreasonable delay.  I am prepared to acknowledge that the consequences for the petitioners of either of these examples of imperfect administration were to some extent inconvenient and frustrating, but in the overall scheme of things I do not think that they could reasonably be viewed as being serious.  There was, at best for the petitioners, a three month delay in the issuing of a visa.  During that period the children were either at boarding school or at home with Mrs N after she chose to return to Edinburgh from China on 27 March 2012.  Mr N accepted in his evidence that he was travelling abroad for work reasons for most of the time between 15 February and 27 March 2012; between 10 and 12 April 2012; and from 22 April to 19 May 2012.  In the whole circumstances, I do not consider that the alleged infringements would have been of sufficient gravity to engage the Article 8 rights of any of the petitioners.  I am not satisfied that either of the petitioners’ complaints involved significant interference with the petitioners’ rights to respect for their family lives.

[17]      I should mention finally that counsel for the petitioners made clear in his closing submissions that he was not relying on any breach of the petitioners' Article 5 rights arising from certain events at Heathrow airport on 27 March 2012.  There had been some evidence led about this aspect of matters, but in view of counsel for the petitioners' final position, I need not deal with the issue.

Conclusion

[18]      In view of the conclusions I have reached, I have sustained the respondent's first plea-in-law (to the effect that the petition is time-barred), repelled the petitioners' pleas and refused the petition.  I have reserved all questions of expenses.