Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 49
P939/13	OPINION OF LORD STEWART in the Petition JAYACHANDRAKUMAR NAIR Petitioner; for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 24 July 2014, and Answers for The Secretary of State for the Home Department Respondent: ________________

Petitioner: McGuire; McGill & Co

Respondent: Komorowski; Office of the Solicitor for the Advocate General

13 March 2014

[1] The petitioner is a visa overstayer who, you might think, should not be in the country. He has been in the country without any kind of leave, visa-granted or statutorily extended, since 30 August 2012 when his application for an extension of leave was refused. He did not depart, which is a breach of the conditions on which his leave was originally granted. After a lapse of three-and-a-half months he made another application for leave which was refused on 8 March 2013. He had a right of appeal which he did not exercise. Again, he did not depart. After a lapse of three-and-a-half months he made yet another application for leave which was refused on 24 July 2013. Yet again, he did not depart. This time the decision was non‑appealable, so he is now contesting it by means of an application to this Court's supervisory jurisdiction.

[2] The petitioner accepts that the immigration rules mean that leave to remain is normally refused in a case like his; and he accepts that normally individuals in his situation, who fall foul of the rules, have to leave the country and reapply from outside after a penalty period if they want to stay in the United Kingdom. So why is he contesting the decision to refuse him leave to remain? Because, he says, the United Kingdom Border Agency [UKBA] Temporary Migration Team 13 decision maker who made the decision on his latest application "erred in law in deciding not to exercise [the Home Secretary's] discretion outside the rules" i.e. erred in failing to consider waiving the rules in the petitioner's favour; and he would like this Court to set aside Team 13's decision and, in effect, to remit his application for a fresh decision taking what the petitioner says is the correct approach, applying "a modicum of intelligence, common sense and humanity".

[3] I heard submissions on the matter for just over half a day on 19 February 2013. I have to compliment counsel for the petitioner, Mr McGuire, and Mr Komorovski, counsel for the respondent, on their pithy presentations. I also have to emphasise that the petitioner on the information available to me is a respectable individual, a teacher of Indian dance and a choreographer highly reputed in the communities which he serves. He is an employee of Dance Ihayami, Edinburgh, a company limited by guarantee recognised as a charity by the Scottish Charities Regulator. Dance Ihayami is Scotland's only dedicated Indian performance arts group. The petitioner appeared in court with a dozen well-wishers. His latest application to UKBA was underpinned by 50 testimonials and letters of support, dating (so far as dated) from April-June 2013, copies of which have been produced to this Court. I have read all these letters. I have learned that the petitioner is more commonly known as "Jayan Kumar". He comes across as an exceptional individual, multi-skilled in performance modalities ranging from south Indian classical dance forms to Bollywood to Carnatic martial arts and much more, a good communicator, dedicated, energetic and creative, with a pleasing personality. The support is, judging by the names, ethnically diverse. The testimonials include a letter from Kim Smith, Migration and Citizenship, International Division, External Affairs Directorate, the Scottish Government, expressing hope that the petitioner's "appeal" is successful. Nonetheless, having reflected on the matter, I have decided to refuse the petition. I would go so far as to say that if Temporary Migration Team 13 were to have granted leave that would have been an abuse of the discretion which is confided to the Home Secretary. It would have been unlawful.

The statutory framework

[4] The petitioner is an Indian citizen without a right of abode in the United Kingdom. As such, in terms of the Immigration Act 1971 section 1, he has to have leave to enter and stay in the United Kingdom. The power to give leave to remain is vested by section 4(1) of the 1971 Act in the Home Secretary. The 1971 Act section 3(2) directs the Home Secretary to make rules "as to the practice to be followed... for regulating the entry into and stay in the United Kingdom of persons required by [the 1971 Act] to have leave to enter". These are the immigration rules. Unless disapproved by either House of Parliament the immigration rules have a normative effect. They confer rights on those who comply with them. As to non‑compliance, Mr McGuire reminds me that the rules are not absolutely prescriptive in that the Home Secretary has "discretion" to grant leave outside the rules [LOTR]; and that the source of the Home Secretary's power to grant leave outside the rules is, again, the 1971 Act, that is sections 3 to 3C of the 1971 Act [Odelola v SSHD [2009] 1 WLR 1230; R (on the application of Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208; R (Munir) v Home Secretary (SC(E)) [2012] 1 WLR 2192 at § 44 per Lord Dyson JSC with whom the other Justices of the Supreme Court agreed].

The decision and the rules

[5] The petitioner's latest application for leave to remain was made by letter dated 27 June 2013 from his solicitors to UKBA. The application was in terms, and as before, for leave to remain as a Tier 2 (general) migrant. This is an application under the immigration rules, part 6A points-based system, rules 245H-245HF etc, particularly rule 245HD quoted in the application. The purpose of Tier 2 is to "enable UK employers to recruit workers from outside the EEA [European Economic Area] to fill a particular vacancy that cannot be filled by a British or EEA worker". The petitioner scored the requisite points. The application was refused for other reasons by the decision letter dated 24 July 2013.

[6] One matter has to be cleared out of the way before moving to the live issue between the parties. As is accepted by Mr Komorowski there is a mistake in the decision. The mistake occurs on page two of the decision where it is stated: "... it has been decided to refuse your application under paragraph 322(1A), of the Immigration Rules". Rule 322(1A) is in Part 9 of the Immigration Rules headed "General Grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom". One of the general grounds of refusal is, by rule 322(1A), deception by making false representations or by submitting false documents or by non-disclosure of material facts. This comes under the sub-heading "Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused" [emphasis added]. There is no explanation of how this ground of refusal got into the decision on the petitioner's application. It does not fit the context. It may be a copy-and-paste error.

[7] Even with rule 322(1A) out of the way, there is room for uncertainty as to what the reason is or reasons are. This is because the same fact - the petitioner's prolonged overstay - supports two distinct but overlapping decisions, namely first, refusal on the ground that the petitioner has breached a condition of his original leave by overstaying and, secondly, refusal for the reason that the petitioner has actually overstayed and failed to regularise his overstay, or failed to apply to regularise his overstay, timeously.

[8] The refusal is expressed as follows:

"Your leave to remain expired on 14 May 2012, extended (by virtue of Section 3C of the Immigration Act, 1971) until your valid application was decided on 30 August 2012. You did not submit a fresh application for leave to remain until 27 June 2013. You have, therefore, failed to observe the time limit conditions attached to your leave of stay.

In light of this the Secretary of State has deemed that refusal is appropriate under paragraph 322(3) and is not prepared to exercise discretion in your favour."

[...]

You have implicitly requested that discretion be applied to your application, however the particulars of your case have been assessed and it is not considered that there were exceptional circumstances which prevented you from applying within the 28 day period following the expiry of your previous leave."

Some explanation is called for.

[9] Rule 322(3) is another of the Part 9 "General grounds for refusal". Rule 322(3) comes under the sub-heading "Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused" [emphasis added]; and the rule 322(3) ground is: "failure to comply with any conditions attached to the grant of leave to enter or remain." Parties agree that the "failure to comply" is the petitioner's non-departure from the United Kingdom after the expiry of his original leave as extended by statute pending determination of his first and unsuccessful application for further leave to remain.

[10] In addition, to qualify for leave to remain as a Tier 2 (general) migrant in terms of rule 245HD applicants must meet the listed requirements. If an applicant does not meet the requirements, the application "will be refused". Rule 245HD(a) requires that the applicant "must not fall for refusal under the general grounds for refusal" (such as rule 322(3) above). Separately rule 245HD(p) requires 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." Following the refusal of his application on 30 August 2012 the pursuer had 28 days to leave the country without being regarded as an overstayer. Instead he stayed over and did not make another application for three-and-a-half months.

[11] Even the 28-day requirement can be relaxed. The UKBA "Guidance -applications from overstayers (non family routes)" version 2.0, valid from 28 March 2013 - a copy of which is produced as 7/2 of process, and which parties agree applied at the time - states:

"If you are refusing an application because of overstaying you must consider any exceptional circumstances that stopped the applicant applying within the 28 days. The 'exceptional circumstances' threshold is high, but can include:

·      The migrant or their representative could not submit an application on time because of:

o   serious illness (supported by the appropriate medical documentation)

o   travel or postal delays. Or

·      They are not able to provide the necessary documents because of exceptional or unavoidable circumstances beyond the applicant's control. For example:

o   The UK Border Agency has lost or delayed returning travel documents.

o   The applicant is having problems replacing lost documents as a result of theft, fire or flood. They must provide evidence to show the date of loss and the date they requested replacement documents."

The guidance continues [emphasis added]:

"If you decide to use discretion it must be authorised by a senior caseworker... In these circumstances you must grant leave under the rules, with the same duration and conditions as a normal grant of leave under the rules attached to it. The decision letter must be clear that leave is being granted because you have accepted there were exceptional circumstances which prevented the applicant from applying within the 28 day period."

Parties' submissions

[12] Mr McGuire for the petitioner argues that the petitioner's application dated 27 June 2013 was or included an application for discretionary leave to remain outside the rules. He cites the decision letter of 24 July 2013: "You have implicitly requested that discretion be applied to your application..." Mr McGuire submits that what the Team 13 decision maker has done is to treat the application as one for the exercise of discretion within the rules. The application has been decided in terms of rule 322(3). The word "normally" in rule 322(3) contrasts with the peremptory wording of rule 322(1A), quoted above, and implies that "exceptionally", and as a matter of discretion, rule 322(3) will not be enforced to the letter. In other words rule 322(3) contains in-built discretion which is an integral part of the rule. Counsel illustrates the working of the discretionary component of rule 322(3) - so far as overstaying beyond 28 days is concerned - by reference to the "exceptional circumstances" guidance to decision makers quoted above: "If you decide to use discretion... you must grant leave under the rules."

[13] In contrast Mr McGuire says, an application for leave to remain outside the rules, is one that has to be determined having regard to all the circumstances including not just the reasons, if any, for the delayed application but also the value of the applicant to the community in the United Kingdom (as evidenced in this case by the testimonials) and the question whether, if the petitioner were to leave and to re‑apply from outside, he would be given leave to enter. Team 13 did not go through that exercise at all; they ought to have done; and they should now be given an opportunity of re-making their decision properly. Citing Teisha Forrester and Mashud Kobir counsel submits that the Home Secretary's discretion, exercised on her behalf by UKBA Team 13, has to be exercised "with a modicum of intelligence, common sense and humanity". Any rational decision maker, properly directed as to the law, and bringing the relevant qualities to bear would allow the petitioner to remain [R (on the application of Forrester) v Secretary of State for the Home Department [2008] EHWC 2307 (Admin) at §§ 2-7; R (on the application of Kobir) v Secretary of State for the Home Department [2011] EWHC 2515 (Admin) §§ 5, 6, 21-25].

[14] Mr Komorowski for the respondent defines the issue thus: is it irrational for the Home Secretary to decline to exercise her discretion in the petitioner's favour where the petitioner has taken three-and-a-half months to submit the latest application after the refusal of the previous application and three-and-a-half months to submit the previous application after his leave to remain expired, all without giving an explanation for the delay? The answer, counsel says, must be "no". He emphasises that whereas the application made on 14 May 2012 was an application for extension of the original leave which expired on that day, the subsequent applications have been applications for a new grant of leave to remain all while the petitioner was in the United Kingdom in breach of immigration laws. The refusal is a refusal in terms of immigration rule 322(3) a general rule applying to all types of application.

[15] The specific rule that applies to Tier 2 (general) migrant applications is rule 245HD which provides that if the applicant does not meet the requirements of the rule his or her application will be refused. There is no discretion within rule 245HD to relax the requirement of rule 245HD(p). Rule 245HD(p) states: "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." Overstaying is "a breach of immigration laws".

[16] Counsel continues to the effect that the policy on granting leave outside the rules is contained in the Immigration Directorate Instructions (April/06) chapter 1, section 14, "Leave outside the rules (LOTR)". Humanitarian protection and discretionary leave cases in respect of, for example, threatened ECHR article 3 violations, are distinct heads in the LOTR directions. The petitioner does not make a claim under these heads. There are two residual categories, namely (1) immigration policy concessions, listed at annex A, and (2) "particular compelling circumstances". Policy concessions (as at April/06) apply to a mixed bag of 25 classes of applicants including airline staff, Jewish Agency employees and research assistants to MPs. My understanding is that the list has now been superseded or largely superseded by incorporation of concessionary classes into the points-based system: but in any event the petitioner does not make a claim for concessionary LTOR.

[17] The policy on "particular compelling circumstances" is expressed as follows:

"There may be particular compelling circumstances where someone may request either limited or indefinite LOTR. Any such case should be considered on its individual merits and in line with any relevant policy at the time... It is not possible to give instances or examples of case-types that might be defined as 'particular compelling circumstances'. However, grants of such LOTR should be rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option..."

Counsel submits that it was for the Team 13 decision maker to decide what weight was to be attached to the factors mentioned in the application. The factors mentioned in the letter are peripheral. They are irrelevant to the questions of delay and overstaying, which are left unexplained; and they are not of sufficient materiality in relation to the broad question. Having regard to the value of consistency in applying the rules the decision to refuse leave was perfectly rational.

[18] I asked Mr Komorowski whether the decision should be read as a refusal to exercise discretion within the rules or whether it should be treated as a refusal to grant leave outside the rules. He took instructions over the luncheon adjournment and returned to say that the decision was both. At the time I found this unconvincing, in part because it seemed to conflict with counsel's submissions at certain points: but, having reflected on the matter, I think that Mr Komorowski's ultimate position is right.

Discussion

[19] Mr McGuire's argument was attractively presented: but I have now come to the conclusion that, though well-founded in certain particulars, on the whole and ultimately it is incorrect. First, as to the cases he cited. The defaults in those cases were venial, the delays were credibly explained and removal would have impacted pointlessly on family life. In the case of Forrester, Ms Forrester was a Jamaican national who got leave to remain as a student by successive applications from 2002 onwards. In 2005 Ms Forrester brought a daughter to live her. On a date not disclosed, Ms Forrester married a foreign-national male who had indefinite leave to remain. She applied timeously for leave to remain as a spouse: but the cheque for the application fee bounced; and when she re-submitted the application with a good cheque the application was treated as being out of time. Sullivan J held that the decision was impeccable in terms of the rules: but that there had been no consideration of the impact on the family life of those involved; and sending Ms Forrester and her daughter back to Jamaica at public expense to make an application for entry clearance that would be granted was "manifestly disproportionate and unreasonable". His Lordship said:

"This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question."

The decision to refuse leave was quashed on the basis that the discretion "given" to the Home Secretary was given on the basis that she would exercise it "with a modicum of intelligence, common sense and humanity". There was no possible reason for not exercising that discretion in Teisha Forrester's favour [R (on the application of Forrester) v Secretary of State for the Home Department [2008] EHWC 2307 (Admin) at §§ 2-7, 16, 17].

[20] Forrester was followed in Kobir. Mashud Kobir was a Bangladeshi computer science and business student. He fell foul of the rules because his application cheque included the fees for himself and his wife but did not include the separate fees for his two UK-born children. He re-submitted the application with a cheque for the full amount: but by the date of re-submission the bank statement showing that he had maintenance funds ended prior to the specified period of "no more than one month before the date of the application". The application then went into limbo for a year, totally unacknowledged, while UKBA investigated, suspended, reinstated, re‑suspended and again re-instated the sponsorship licence for the college where Mr Kobir was studying or had hoped to study. His application was then refused. In the meantime he lost the opportunity to tender a further application accompanied by an up-to-date bank statement with the minimum of delay. Deputy High Court Judge Belinda Bucknell QC quashed the refusal of leave holding, on quasi article 8 ECHR grounds, that "the decision to refuse leave... was wholly disproportionate to the [Home Secretary's] legitimate need to maintain a fair and firm immigration system" R (on the application of Kobir) v Secretary of State for the Home Department §§ 5, 6, 21-25].

[21] In the present proceedings Mr Komorowski has submitted repeatedly that the petitioner "failed to give any explanation". It is clear from the passages in Kobir put before me by Mr McGuire that an absence of explanation can be material. Even without the case law I conceive it to be a general principle of jurisprudence that where there is non-compliance with a rule, any rule, and the decision maker has a discretion to excuse non-compliance, the dispensing power can be engaged (a) by offering a reasonable explanation for non-compliance and (b) by demonstrating that the balance of prejudice or interest favours excusal. In Kobir the learned Deputy Judge distinguished the case of Walker on the ground that Ms Walker did not provide any explanation for her failure to provide a photograph with her original application; and that without an explanation the Home Secretary "had no material upon which to exercise her discretion". Walker has been followed in Fu. Walker and Fu were about formal application requirements: but I think the ratio applies a fortiori to the requirements in the present case [R (on the application of Walker) v Secretary of State for the Home Department [2010] EWHC 2473 (Admin) at §§ 24-30; R (on the application of Fu) v Secretary of State for the Home Department [2010] EWHC 2922 (Admin) at §§ 13-28; cf. I Macdonald and R Toal (eds), Immigration Law and Practice in the United Kingdom, 8^th edn (London, 2010), vol 1, §§ 4.16, 4.50].

[22] Secondly, as to the terms in which the petitioner's application was presented and refused. The application presented by the petitioner's solicitors was presented as an admittedly out-of-time Tier 2 (general) migrant application. The application stated:

"We... enclose herewith application for Tier 2 (General) extension of leave to remain... we are now in a position to submit the present application... requesting discretion to be exercised... This application is submitted to you in respect of Immigration Rules HC 395 (as amended) paragraph 245HD ... excepting that our client is presently without leave, he would meet the criteria for a Tier 2 general applicant."

Although stated to be an application for "extension of leave", "extension" was impossible without relaxation of the rules since the petitioner was "presently without leave": otherwise the application fell to be treated as an application for leave of new.

[23] The decision as I read it moves from the general to the particular by addressing in turn (a) the question whether the application was to be accepted or rejected in terms of part 9 of the rules "general grounds for refusal etc", rules A320-324, particularly rule 322(3) and then (b) the question whether the application was to be accepted or rejected in terms of the specific requirements of part 6A "points based system" so far as relating to "Tier 2 (general) migrants", particularly rule 245HD "Requirements for leave to remain". There is overlap but the questions are distinct and were treated separately.

[24] Taking the treatment of the second question first, the words in the application "presently without leave" necessarily imply - subject to the 28 days of grace referred to in rule 245HD(p) - an out-of-time application in a case like the petitioner's. Clearly this was the point addressed by the Team 13 decision maker when he or she wrote: "You have implicitly requested that discretion be applied to your application, however... it is not considered that there were exceptional circumstances which prevented you from applying within the 28 day period following the expiry of your previous leave." I agree with Mr McGuire that the wording badges this as a refusal to exercise discretion in accordance with the UKBA "Guidance - Applications from overstayers (non family routes)" quoted above. There was no explanation for a delay of - at best for the petitioner, counting in the statutory section 3C extension to 30 August 2012 and then adding 28 days of grace - nine months from 27 September 2012 to 27 June 2013, that is 274 days. In the absence of an explanation and given the length of the delay there was nothing that could properly and, I would say, lawfully engage the decision maker's discretion to relax Tier 2 rule 245HD(p) and allow the out-of-time application to be processed within the rules.

[25] Returning to the first question, I agree with Mr Komorowski that the decision maker's treatment, quoted above, amounted to both a refusal in terms of rule 322(3) and a statement that the discretion to grant leave, by necessary inference outside the rules, would not be exercised. In contrast with the "implicit request" discussed above, the request to exercise discretion in this context was express. I simply do not see that there was anything irrational or "Wednesbury unreasonable" about this. The application does not explain or excuse the petitioner's overstaying in a way that could properly have engaged the decision maker's discretion. The nearest that the application gets to an explanation of the petitioner's overstaying is an account of the failure of the petitioner's previous unsuccessful applications, refused on 30 August 2012 and 8 March 2013 respectively:

"Failure of his applications for extension of leave have [sic] been outwith the control of our client and been in respect of issues with regards to the sponsorship licence and salary payments. Regrettably the sponsorship licence was an oversight on the part of the employers and the salary had been the result of the available charitable funding to the company which fluctuated during the national economic downturn."

I do not know what the coyly expressed "issues with regards to the sponsorship licence" were and Mr McGuire was not in a position to explain: but one impression I am left with is that Dance Ihayami did not have the money to pay the petitioner the minimum appropriate salary rate of £21,700 for the Home Office classification "dancers and choreographers, experienced". This is the gross annual salary filled in at box M11 of the petitioner's latest application [I have consulted the Home Office "Codes of Practice for Skilled Workers - Standard Occupational Classification (SOC) Codes", 1 October 2013, Version 10/13, not produced or cited by counsel].

[26] In a sense this make matters worse because it means that when the petitioner made one or both of his previous unsuccessful applications the sponsorship conditions for his Tier 2 route could not be satisfied, as he and Dance Ihayami ought to have been aware. I am told that, apart from the petitioner, there is only one employee of Dance Ihayami, namely Ms Priya Shrikumar. If the sponsorship conditions were not satisfied then the petitioner could not be employed lawfully. Likewise, if he did not have leave to remain the petitioner could not be lawfully employed. The petitioner did not have leave to remain from 30 August 2012. Consistent with this, Ms Shrikumar's testimonial dated 16 May 2013 talks about "our previous employee Jayachandra Kumar". Yet the maintenance funds documentation produced in support of the application, namely bank statements for the period 1 February to 30 March 2013, show payments by Dance Ihayami to the petitioner of "Dance Ihayami salary" in the total sum of £3,100 (and a personal payment by Ms Shrikumar of £500). If the petitioner were working, he should not have been. I note in passing that where a migrant's sponsor ceases to have a sponsorship licence or where a Tier 2 (general) migrant ceases to be employed by his or her sponsor, existing leave may be curtailed in terms of rule 323A.

[27] I have no reason to judge Ms Shrikumar or the board of directors of Dance Ihayami. They are entitled to sympathy if they were trying to juggle the demands of satisfying potential funding bodies like Creative Scotland, meeting UKBA sponsorship criteria, providing cultural services (including outreach programmes to schools and senior citizen groups) and retaining the petitioner's talents while hoping and believing from one day to the next that things would soon come right: but none of what is known about the situation of Dance Ihayama and the petitioner is capable on any reasonable view, as I see it, of engaging the rarely exercised power of granting leave outside the rules "for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option." In any event I do not think that the decision that the Team 13 decision maker made - whether you agree with it or not - was outwith the proper bounds of the discretion confided to the Home Secretary. Mr McGuire for the petitioner has not placed before me any authority to illustrate that the petitioner's is the kind of case in which leave outside the rules might conceivably be granted.

Decision

[28] For these reasons I am going to refuse the petition by repelling the petitioner's sole plea that the respondent has unreasonably failed to exercise her discretion outside the rules and by sustaining the respondent's sole plea to the effect that the petition should be refused. I shall reserve all questions of expenses. For the avoidance of doubt, although the application also sought leave on article 8 ECHR grounds (respect for private and family life) parties are agreed that any dispute about that issue will be dealt with separately.