Akter, R (On the Application Of) v The Secretary of State for the Home Department [2015] EWCA Civ 626

Case No C2/2014/2188[2015] EWCA Civ 626
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of JusticeDate Wednesday, 27 May 2015
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE JACKSON
Between
THE QUEEN ON THE APPLICATION OF SHAHIDA AKTERApplicant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Michael Biggs (instructed by Universal Solicitors) appeared for Applicant for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE JACKSON:

[1]This is an application for permission to appeal to the Court of Appeal. The facts giving rise to this application are as follows. The applicant is a citizen of Bangladesh now aged 42. On 31 January 2010, she was granted leave to enter the UK as a Tier 4 (General) student until 31 August 2011. On 31 August 2011, the very last day of her leave, she applied for further leave to remain as a Tier 4 (General) student. Her application was defective in certain respects, in particular, there was no accompanying CAS.[2]The Secretary of Sate refused the application on 26 September 2011. The letter read as follows:
"Thank you for your attempted application for leave to remain in the United Kingdom. For the reasons set out below we must return your application as invalid. Please read this letter to ensure that you understand how to make a valid application. Reasons why the Application is Invalid Where an application form has been specified in accordance with the Immigration Rules... the application must comply with the requirements set out in paragraph 34A of these rules and The Immigration (Biometric Registration) Regulations. The relevant requirements are listed below and a cross in the box indicates that a requirement is not met. ... [X] Any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified. (We have highlighted the relevant specified parts on the form that have not been completed) ... [X] The application or claim must be accompanied by the documents specified as mandatory in the application form and/or related guidance notes. (We have highlighted the relevant documents specified on the form) ... Arrangements will be made to refund any fee which you have included with this invalid application. Please be aware that your attempted application has been rejected as invalid under the immigration rules, if you choose to submit a fresh application, the date of your application will be the date that this fresh application form is submitted; that is the date that it is posted, delivered by courier or accepted at a public inquiry office. Please also ensure when submitting a fresh application, that any documents enclosed cover the dates relevant to the fresh application (the date of your resubmission)."
[3]On 6 December 2011, the applicant made a fresh application. On 13 March 2012, the Secretary of State refused that fresh application. The application was refused because the applicant had failed to score 10 points under Appendix C, in that she had not produced evidence of the requisite means. In particular, she had not established that she had the required maintenance fees of £7,200, plus any outstanding course fees, for the first year of her course.[4]On 4 September 2012, the applicant commenced judicial review proceedings. Her argument was based upon the fact that a letter, which had by then been lost, had given her a legitimate expectation that shortcomings in the original application would be drawn to her attention before a decision was reached on that original application. The passage which the applicant relies upon from a later letter, which is said to have been incorporated in the earlier letter, reads as follows:
"If there is any problem with the validity of the application, such as missing documentation or omissions on the form, a caseworker will write to you as soon as possible to advise what action you need to take to rectify the problem."
[5]The application for judicial review was dealt with by the Upper Tribunal. On 2 June 2014, Upper Tribunal Judge Jordan refused the application for judicial review on the basis that there was no arguable case that the lost letter, upon which the applicant relied, founded a legitimate expectation. The applicant was aggrieved by that decision and applied for permission to appeal to the Court of Appeal. Floyd LJ refused the application on the papers observing, in the course of his reasons, that the applicant's grounds of claim were doomed to fail because of the Court of Appeal's decision in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2 at paragraphs 94 to 100.[6]The applicant now renews her application for permission to appeal at an oral hearing. Counsel for the applicant, Mr Michael Biggs, has presented her case very clearly and for that I am grateful. Mr Biggs began by submitting that the Supreme Court has given permission to appeal in the case of Rodriguez, and therefore this application should not proceed on the basis of the Court of Appeal's decision in that case which may, in due course, be reversed.[7]This court frequently is presented with arguments that applications for permission should be adjourned, granted or allowed as properly arguable because some earlier decision of the Court of Appeal is on its way to the Supreme Court, or some earlier first instance decision is on its way to the Court of Appeal and decisions are awaited in those other important matters. Given the volume of litigation passing through this court it is not normally practicable to wait upon other appellate decisions in other cases. If we did that, there are some areas of the law where we would never decide anything, because other appeals are constantly pending.[8]This court has to proceed on the basis of the law as it is, although, of course, bearing in mind that other decisions may be on their way to an appellate court, I bear in mind that Rodriguez is indeed on its way to the Supreme Court. Mr Biggs goes on to argue that Rodriguez at paragraphs 94 to 100 can be distinguished. He submits that in this case there is a very strong claim based upon legitimate expectation.[9]I have read and re-read the letter upon which Mr Biggs bases his argument. It seems to me that the letter is an attempt to summarise that which is now contained in the UKBA's flexibility policy. It also seems to me that the Upper Tribunal Judge was correct to say that the UKBA in their letter of 26 September 2011 did fulfil the expectations created by the letter of 7 December 2011. Obviously the UKBA could have said they were putting the original application on hold and they required certain matters to be put right, but instead the UKBA took a different course. They pointed out the shortcomings in the original application, they returned the fee and they explained what needed to be done in a fresh application. The documents to accompany the fresh application must include evidence of means and that is implicit in what the UKBA say in their letter of 26 September 2011.[10]I quite accept that on a fresh application when the applicant would be an overstayer a substantial sum of means needed to be demonstrated, but that is, in my view, sufficiently made clear by the terms of the letter dated 26 September 2011. Mr Biggs submits that the word "invalid" in the letter of 26 September 2011 is significant. The lack of evidence of means does not make an application invalid, rather it is a reason for refusing an application. In my view that is too fine a distinction to draw. The UKBA in its letter of 26 September 2011 returned the fee. They told the applicant what needed to be done on a fresh application and gave the applicant all proper assistance.[11]The applicant made a fresh application, but that too was defective. I do not think it is arguable that the Upper Tribunal fell into error in its decision in this case. If I were to grant leave, then the appeal to the Court of Appeal would ultimately fail and would land the applicant with a very substantial bill of costs. In those circumstances I refuse permission to appeal.