Merrimen -Johnson, R (On the Application Of) v Secretary of State for the Home Department [2010] EWHC 1598 (Admin)

Case No CO/5395/2009[2010] EWHC 1598 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 26th March 2010
Strand
London WC2A 2LL
B e f o r e:
MR CMG OCKELTON
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF EFUNTOMI MERRIMEN-JOHNSONClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
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 8838(Official Shorthand Writers to the Court)
Mr E Pipi (instructed by Messrs Christian Gottfried & Co Solicitors) appeared for ClaimantMr Matthew Barnes (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY: This is an application for judicial review of a decision of the Secretary of State on 4th March 2009, confirmed by a second decision of 25th March 2009, refusing the claimant leave to remain in the United Kingdom as a Tier 1 post-study migrant under the points based system. Permission was granted by HHJ Gilbart QC, sitting as a deputy judge of this court on 21st August 2009.[2]The facts and the chronology are as follows. The claimant came to the United Kingdom in 2006. She came as a student and was granted leave to enter in that capacity. She remained in the United Kingdom with her leave as a student, taking latterly a course at the University of Greenwich. Her last leave expired on 31st January 2009. Shortly before that date, she had received notice from the university that she had complied with the requirements of the course which she was then undertaking and the documentation available to me indicates that on 26th January the progression and award board for the University of Greenwich confirmed success at 2.1 level in the degree course that she was undertaking.[3]She made an application for leave to remain as a Tier 1 post-study migrant on 29th January 2009, that is to say within the period of her existing leave. It appears, however, that the application was not supported financially in the way that it needed to be by providing the application fee which needed to accompany the form. It was therefore an invalid application. I shall say a little more about this in a moment.[4]On receiving the news that the application was invalid, the claimant made a new application. That application was made on 4th February 2009. The date is important because, of course, by then her leave had expired. The application was acknowledged on 6th February 2009 and refused on 4th March, as I have said. The claimant responded with further submissions and the decision was confirmed.[5]The reasons why the Secretary of State refused the claimant's application relate to the maintenance requirements and the attributes and language requirements of the points based scheme. So far as maintenance is concerned, the Secretary of State's decision was based on a conclusion that the documents accompanying the application did not show that the claimant had been in possession of the relevant sum of money for the relevant period before the application was made. So far as the attributes and language requirements are concerned, the Secretary of State's decision was based on a conclusion that the documents submitted did not comply with what the rules, the appendix to the rules and the guidance require in relation to proof of the qualification claimed.[6]In granting permission to apply for judicial review, HHJ Gilbart said this:
"1. The claimant's case is certainly arguable. On the face of it, she made a proper application in time (it is in any event arguable that omitting a detail does not invalidate an application - see Regulations 11 and 12). 2. In any event when the SSHD came to consider her application on its merits, she has an arguable case that she should have been awarded points in respect of her degree from the University. 3. She also has an arguable case on whether or not the SSHD should have taken her husband's resources into account."
[7]So far as the first point upon which permission was granted by the learned judge is concerned, it is accepted by both parties before me, and indeed correctly, that, with the greatest of respect, that was a bad point. The reference made by the judge appears to be to regulations 11 and 12 of the Immigration (Leave to Remain) (Prescribed forms and Procedures) Regulations 2003. Those regulations were superseded in 2007 by new regulations, the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007, which were to the same effect, but the 2007 Regulations were superseded in 2008 under the Immigration Asylum and Nationality Act 2006 Commencement No 8 and Transitional and Saving Provisions Order) 2008, bringing into force the section 50(3)(a) of that 2006 Act. The effect of that is that the requirements as to forms are now contained in the Immigration Rules and paragraph 34A and C of the Statement of Changes in Immigration Rules HC 395 require a fee to accompany an application form and provide that, if the fee does not accompany the application form, the application is invalid.[8]The first point upon which permission was granted therefore is one which is not capable of achieving success for the claimant in this case. There is no doubt that the first application she made was not a valid application and that the only valid application was the one made out of time.[9]An additional point arises on that issue. It is in my judgment very doubtful whether the question of whether a right of appeal existed is a matter for judicial review of the Secretary of State's decision. The position is that, if there is a right of appeal, it is a right granted by statute. The Secretary of State has no power either to deny a right of appeal to somebody who properly has one or indeed to grant a right of appeal to somebody who does not have one. The position is therefore that, if the Secretary of State had wrongly concluded that a person did not have a right of appeal, the appropriate course of action would be in any event to exercise the existing right of appeal by appeal to the Tribunal rather than by challenging the Secretary of State's decision on something on which the Secretary of State had no power to make a decision.[10]I pass therefore to the other grounds upon which the learned judge granted permission and I shall take them in due course in the reverse order. But first I must set out the relevant law.[11]Section 3(2) of the Immigration Act 1971 requires and enables the Secretary of State to make immigration rules and the current rules are, as I have said, those contained in House of Commons paper 395. As a result apparently of a move towards simplification of immigration law, the previously clear rules relating to some areas are now contained in a series of very complex rules accompanied by appendices and also by guidance which has to be complied with. Paragraph 245Z of the Immigration Rules relates to the type of leave which the claimant sought as follows:
"To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an applicant must meet the requirements listed below. Subject to paragraph 245ZA(i), if the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Requirements (a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant. (b) The applicant must not previously have been granted entry clearance or leave to remain as a Tier 1 (Post-Study Work) migrant. (c) The applicant must have a minimum of 75 points under paragraphs 51 to 58 of Appendix A. (d) The applicant must have a minimum of 10 points under paragraphs 1 to 3 of Appendix B. (e) The applicant must have a minimum of 10 points under paragraphs 1 to 2 of Appendix C."
I do not need to read the rest of that paragraph.[12]Looking at Appendix A, the effect of the allocation of points in the relevant table is that, if the claimant was entitled to be recognised as having obtained her University of Greenwich award at the date of her application, she would have obtained the necessary 75 points under Appendix A and the necessary ten points under Appendix B.[13]So far as Appendix C is concerned, the relevant provisions are as follows:
"1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must have the funds specified in the relevant part of Appendix C at the date of the application and must also have had those funds for a period of time set out in the guidance specifying the specified documents for that purpose."
Then the relevant part of Appendix C is paragraph 2(b), which required the claimant to have had £800 and to provide the specified documents.[14]Both paragraphs (a) and (c) refer to specified documents and that is a reference to a phrase which is to an extent defined in paragraph 245AA of the Immigration Rules, of which subparagraph (a) provides as follows:
"Where part 6A or Appendices A to C, or E of these Rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence."
Because of that provision, an applicant who has mastered the provisions of paragraph 245 and its various alphabetical additions, and has mastered also the relevant appendices, needs to look at the relevant guidance applicable to the application being made and the difficulties in doing that have been exemplified before me this morning by the fact that the Secretary of State produced in support of his argument guidance which was guidance which was in fact not relevant to the present application. It is, however, convenient at this point to deal with the two grounds separately and beginning then with maintenance.[15]The guidance relating to maintenance requires that an applicant in a case such as the present show £800 "of personal savings which must have been held for at least three months prior to the date of the application". The guidance goes on to indicate that "Only the following specified documents will be accepted as evidence of this requirement", and various classes of documents are listed, in each case requiring an official document from a bank, building society or other financial institution showing the applicant's name.[16]There is no doubt that the claimant's application did not meet those requirements. The documentation she provided with her application did not show £800 standing to her name in any financial institution in the period of three months before her application. She relied instead on bank statements in the name of her fiancé or husband, which showed a very considerable amount of money standing to his account in a bank in Nigeria. The position, I am told, is that he has consistently supported her studies and has sent money to her when she required it and I have been shown today that there is some evidence of payments from his account to hers over the course of her studies.[17]Mr Pipi's submission, which was regarded, as I have said, as arguable by HHJ Gilbart is that that money should have been taken into account in assessing whether the appellant met the requirements of the rules relating to the points-based scheme under which she was applying.[18]Faced, of course, with the difficulty that the documentation provided does not appear to comply with those rules, Mr Pipi drew my attention to a number of features of the way in which the Immigration Act, the rules, the appendices to the rules and the guidance fit together and apparently impose on a claimant an increasingly arduous series of requirements.[19]Starting with the Act, he pointed out that there is no requirement in the Act itself, or indeed any facility for allowing a requirement, that the immigrant herself have funds standing to her own name be incorporated as a condition of a grant of leave to remain. That is an argument which is on its face good but has, in my judgment, no relevance to a case such as the present. It may well be that a condition of the sort indicated would not be a lawful condition of a grant of leave, but it does not follow from that that it cannot be made a condition prior to a grant of leave, that is to say a condition upon which an application will be accepted or rejected.[20]The second principal point made by Mr Pipi is that Appendix C of the rules, as I have indicated, uses the phrase the applicant must have the funds specified whereas the phrase "£800 of personal savings" occurs only in the guidance. There is a difference, said Mr Pipi, between having funds and having personal savings. I agree, but it does not seem to me that the difference between funds and personal savings is relevant for the purposes of this application because the claimant herself had neither.[21]Mr Pipi's third point, and the one which he elaborated most strongly, is that the guidance imposes in his submission an additional requirement that the funds be the applicant's own funds and not third party funds. In other words, he submitted that it was not open to the Secretary of State, particularly in guidance only, to impose an additional requirement that an applicant in this category provide evidence of funds of her own rather than being entitled to rely upon funds to which she has access, from, for example, a spouse or family member.[22]In support of that submission, Mr Pipi cited Ahmed Mahad v Entry Clearance Officer Addis Ababa [2009] UKSC 16. That is a decision of the Supreme Court relating to the interpretation of the Immigration Rules covering the admission of family members for settlement. The Immigration Rules were subject to modification after the coming into force of the Human Rights Act 1998 and one of the modifications appeared on its face to require that in certain circumstances, instead of funding being available on a third party basis to prospective immigrants, they had to be able to show that they had it themselves. In Ahmed Mahad, the Supreme Court decisively rejects that interpretation of the relevant rules.[23]I do not, however, find anywhere in the judgments in that case any assertion that the Secretary of State would not have been entitled to make rules to the effect of excluding third party support in those cases or in other different cases if he had done so clearly. The position is that the Supreme Court interpreted the rules before it and came to the conclusion that those rules did not exclude third party support.[24]The position in the present case is that Appendix C is clear. It provides not that the applicant has to show that she will be supported adequately without recourse to public funds but a completely different requirement that she must have the funds specified. The guidance deals with such matters as joint accounts and provides, for example, that, if the applicant and another person are jointly named as account holders, that is sufficient. There will not, in other words, in those circumstances be an inquiry as to how much of the joint account genuinely belonged to one or the other account holder. But where the evidence provided shows not that the applicant has the funds but that somebody else has them, it seems to me that it is beyond doubt that the requirements of the rules, that is to say of Appendix C of the rules, are not met. This is not an additional requirement imposed by the guidance: it is the requirement of the rules. The rule clearly requires an applicant to show that she has the funds. The guidance simply indicates how that is to be done.[25]I conclude that, in the present case, the applicant, by showing that her fiancé or husband had funds, did not meet the requirements of Appendix C and for that reason the Secretary of State was correct to refuse her application.[26]In those circumstances, I do not strictly need to deal with the issue relating to the grant of the award. I have indicated in the course of argument that the requirements in the guidance which I was shown, which, as I have indicated, is not the correct guidance for the purposes of this application, may pose some difficulties for applicants. If it had been relevant for me to do so, I might have been persuaded that the letter produced by the claimant with her application was sufficient to meet the requirements of the guidance by necessary implication from its terms and given the date of the letter and the date of the application. But, as it will make no difference to the outcome of these proceedings, I say no more about it.[27]For the reasons I have given, the decision by the Secretary of State was within the parameters required by the immigration rules. It was therefore a lawful decision and this application must therefore be dismissed.[28]MR PIPI: My Lord, I have two applications. One is that I am publicly funded. May I have detailed assessment?[29]THE DEPUTY: You may.[30]MR PIPI: The other is I would be grateful if your -- well, I make an application to apply for leave to the Court of Appeal to resolve that point about maintenance, in the sense that it is important that the Court of Appeal rules on whether there will be a separate test for those who apply under Tier 1 as opposed to those that apply under the other rules. I hear what your Lordship says and I make an application for that.[31]THE DEPUTY: I will refuse permission to appeal to the Court of Appeal. The reason is that, on the facts of this case, I regard it as entirely unarguable that the claimant met the requirements of the rules in having the appropriate money.[32]MR BARNES: My Lord, there is just one final point, which is that we have had no notification that the claimant is publicly funded. But, in any event, my Lord, I ask for an order that the claimant pay our costs, not to be enforced without leave of the court, which is the usual order, I would submit, in a case where somebody is publicly funded. That will then give the claimant the opportunity to establish with the Secretary of State that she is publicly funded and, if she is not, then we can come back for leave to enforce the order if necessary.[33]THE DEPUTY: Yes, there is no indication of the amount, is there?[34]MR BARNES: No, my Lord, it would have to be assessed if not agreed.[35]THE DEPUTY: Yes. Well, you can have the usual order.[36]MR BARNES: I am grateful, my Lord.[37]THE DEPUTY: Thank you both very much.

Cited in 1 later judgment