Onyebuenyi v Secretary of State for the Home Department [2013] EWHC 4753 (Admin)

[2013] EWHC 4753 (Admin)Case No CO 10340 3013
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Date 18/12/2013
Swansea Civil and Family Justice Centre
Caravella House
Quay West
Quay Parade
Swansea
SA1 1SP
Before
HIS HONOUR JUDGE KEYSER QCsitting as a Judge of the High Court
Between
NNADOZIE FRIDAY ONYEBUENYIClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
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THE CLAIMANT appeared in person. for in personMR. MATTHEW CANNING appeared for Defendant
JUDGMENTJUDGE KEYSER QC:
[1]This is the claimant's renewed application for permission to apply for judicial review of a decision taken by the defendant’s officers on 3 June 2013 to refuse the claimant’s application to remain as a Tier 4 (general) student migrant.[2]The short background is this. On 14 October 2007 the claimant was given leave to enter as a Tier 1 (general) migrant as a student. The leave was extended a number of times and ultimately expired on 28 March 2013. On 13 March 2013 the claimant wrote to the UK Border Agency and requested in a lengthy letter leave to remain in order to pursue doctoral studies at a university in the UK.[3]On 3 April 2013 an officer of the UK Border Agency replied, thanking the claimant for his letter, returning the documents he had submitted, and saying, “I am returning all documents as you need to submit a Tier 4 application for consideration and pay the appropriate fee.” The claimant accordingly made an application on 24 April 2013 for leave to remain in the UK as a Tier 4 (general) student migrant under the points-based system and also for a biometric residence permit. That application was refused by letter dated 3 June 2013. It is in respect of that refusal that the claimant seeks permission to apply for judicial review.[4]The application was considered on the papers by HHJ Jarman QC sitting as a judge of the High Court on 4 November 2013. He refused the application on the following grounds. First, the defendant was entitled to come to the conclusion that as the most recent leave was a Tier 1 (general) migrant the claimant does not satisfy the requirements of a Tier 4 (general) student. Second, the claimant accepts that he has not submitted a valid CAS, which is confirmation of acceptance for studies. Third, the claims in respect of equality and breach of ECHR rights are not properly particularised and are unarguable.[5]At that stage the judge did not have before him an acknowledgment of service, and he refused an extension of time for acknowledgment of service. The defendant belatedly filed an acknowledgment of service on 16 December, and I gave permission for that acknowledgment of service at a preliminary ruling this morning. I also gave permission for the defendant’s counsel, Mr. Canning, to address me, and I am grateful for his submissions. I also heard from the claimant in person, and I am grateful to him for the clarity and rigour with which he has put forward his submissions.[6]The decision letter refused leave to remain as a Tier 4 (general) student migrant on fairly short and straightforward grounds. Paragraph 245ZX of the Immigration Rules lists a number of requirements that an applicant must meet to qualify for leave to remain as a Tier 4 (general) student. The paragraph provides:
“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.”
[7]The second requirement, requirement (b), is that the applicant must have or have last been granted entry clearance, leave to enter or leave to remain, as any one of a number of categories. The application by the claimant was made on 24 April 2013. He did not come within any of the categories of leave to remain in requirement (b), nor were any of those categories which he had last been granted. His last leave to remain was as a Tier 1 (general) migrant. The only category in requirement (b) that relates to Tier 1 is as Tier 1 post-study work migrant. On that ground alone the application was doomed to rejection in accordance with the terms of paragraph 245ZX.[8]Also relevant are requirements (c) and (d). Requirement (c) is that the applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A. Available points under Appendix A were shown in Table 16. Thirty points were available for confirmation of acceptance for studies. The decision letter pointed out that no CAS reference number had been submitted with the application and the Secretary of State was not satisfied that there was a valid CAS. On that ground also the application failed.[9]The result, which I need not set out in more detail, was that the application also failed because there was not the minimum 10 points required by requirement (d) under Appendix C. That also was by virtue of the absence of the CAS number.[10]One point that has been raised about the second and third grounds of rejection, which are effectively one, is that the Secretary of State's flexible evidential policy, which was referred to in the acknowledgment of receipt of the application and is alluded to in paragraph 17 of the summary grounds of defence, indicates that, if there are omissions from the evidence submitted, the applicant will be notified and given an opportunity to remedy the position. For the defendant it is submitted on the authority of Secretary of State for the Home Department v Raju & Others [2013] EWCA Civ 754 that in the present case the omission could not be overcome because the confirmation of acceptance for studies was not available at the date of the decision. Even if it might otherwise be considered that the omission could be overcome, Raju, which was actually decided a few weeks after the Secretary of State’s decision in the present case, shows that it could not be overcome. I am not required to form a clear view on that point. I am not immediately persuaded that Raju does apply to the facts of this case. However, the short and determinative point is that requirement (b) in paragraph 245ZX was not satisfied, because the applicant did not have and had not last been granted entry clearance, leave to enter or leave to remain of any of the required sorts. On that ground accordingly the decision to refuse the application was prima facie beyond contesting.[11]The claimant has raised a number of matters in his thorough submissions. I will deal with most of them before going back to the point that lies at the heart of his case. He says that he has wrongfully been denied a right of appeal on the ground that his application was made less than 28 days after the expiry of his leave to remain and that paragraph 245ZX(m) indicates that periods of overstay not exceeding 28 days will be disregarded. But it seems to me that Mr. Canning is right to say that this is to confuse the issue. The question of whether or not there is right of appeal is a statutory matter. In the case of overstay, that is an application made when there was no extant leave to remain, there is no statutory right of appeal. The provisions of paragraph 245ZX(m) mean that the defendant would not have been entitled to refuse the application on the ground that it was brought out of time, but in fact the defendant did not refuse it on that ground. So there is nothing in that point.[12]Apart from the claimant’s main point, to which I shall return at the end, the other points he raises are much of a piece. What the claimant calls his Issue 4 is that, because of circumstances occurring in 2011, to which I shall return, he has an existing complaint before the Financial Ombudsman which is in the process of consideration but cannot be determined at present—I should say that that is factually correct—and that he also has a prospective claim in a civil action against the defendant for the conduct of her officers. It is fair to say that the claimant has intimated at least the possibility of such a claim, though no such claim has been brought. He says that the decision against which he seeks judicial review derogates from his Article 6 right to fair trial, which for present purposes encompasses both a fair determination of his prospective claim and a fair determination of his claim before the Financial Ombudsman.[13]In my judgment, those arguments are hopeless for two reasons. First, removal of the claimant would not affect his ability to obtain a fair hearing of his present complaint to the Financial Ombudsman. There is no reason at all why that cannot be dealt with in his absence. Further, there is no reason to suppose that removal would prevent his having a fair hearing of the prospective claim against the defendant for the conduct of her agents. Second, the matters raised by the claimant might conceivably be relevant to the question whether removal directions should be issued, though I find it difficult to see that they would in fact be the least bit likely to affect a decision in that regard. But paragraph 21.2 of the Enforcement Instructions and Guidance mandate enforcement and removal staff to consider whether the individual in question has an outstanding civil action in the UK to which Article 6 applies or is a prospective party to a civil action to which Article 6 applies that has not commenced but is being actively pursued. If the matters raised by the claimant are relevant at all, they are relevant to removal directions, not to the refusal of the Tier 4 application. It is plainly unarguable that the Tier 4 application, which did not satisfy the requirements for such an application, should be granted because there was a Financial Ombudsman complaint and a possible civil action that had not yet been brought.[14]Other matters raised by the claimant include an allegation that there is an infringement of the claimant’s right to education and of Article 17 and an allegation of both racial discrimination and victimisation. These points however relate, if to anything, only to conduct in 2011. They cannot relate to the decision in 2013 to refuse the Tier 4 leave to remain, and no basis at all has been shown for suggesting that they do.[15]I come back to what is at the heart of the claimant’s case, around which all his other points revolve. It is the issue that he has rightly identified as Issue 1. It arises in these circumstances. On 3 February 2011 the claimant made an application in person at the defendant’s Cardiff office for a Tier 1 (general) visa with a view to putting in place the necessary funding and applications to pursue PhD studies. He says that at the Cardiff office on 3 February two of the defendant’s caseworkers, whom he names, harassed and intimidated him, and accused him of fraud and forgery on the basis that the documentation he provided was on a form of paper that they said was not available in Nigeria. They threatened that, unless he withdrew his application, it would take more than six months to conclude it and threatened to contact his bank to investigate him for fraud.[16]The claimant says that what happened then, as disclosed by subsequent communications with his bank, Halifax, was that on 2 March 2011 Halifax carried out a review of the accounts and, acting on the basis of the review, “as well as on some adverse information received from a third party which we are unable to divulge”, the bank froze his account and thereby thwarted his educational plans.[17]It is the bank’s actions that constitute the subject-matter of the complaint to the Financial Ombudsman and that lie behind his complaint in the present case. I have already referred to the letter 13 March 2013 (paragraph 2 above). (The claimant points to evidence that that was delivered by the Royal Mail on 14 March 2013, though it was only date-stamped by the UK Border Agency on 21 March. I do not see anything sinister in that level of delay in date-stamping. Correspondence and documents may well take a long time to filter through a busy administrative office.) In that letter the claimant sets out the background concerning the events in 2011, to which I have referred. He states that after he left the UK Border Agency office or Home Department office on 3 February 2011 he decided to resubmit his application because he did not trust the two caseworkers. He states:
“While my application was being considered by your good selves to my greatest chagrin one of your own contacted the bank and gave them adverse information about me which led the bank to close my account maliciously on 4 March 2011.”
[18]The claimant indicates the belief that the caseworkers had maliciously sought to embarrass him and thwart his application by putting false information to the bank. His letter goes on to put forward a humble request:
“Could you please consent that you would support me with a student visa to undertake my studies or give any other directives that would help me secure this funding opportunity and carry on with my studies? Can I go ahead and advise the EEO [that is, the Evangelical Education Outreach, which had given him a scholarship] that awarded me the scholarship to make payment to the LSBF [that is, the London School of Business and Finance] account?”
He says that the consent is required, because he would need to start all registration formalities by 18 March 2013, that he could not advise the EEO to pay fees when they might thereafter be lost, and that if consent were not given or directives given for him to proceed until he made a formal application he would lose his funding opportunity for his studies. In paragraph 11 he says, “Remember the action of one of your own made me to lose funding opportunity for my PhD in 2011 and the subsequent failure of obtaining a student visa then.” In paragraph 12 he says, “Also remember I spent a total of £2,000 in an application in 2011 just to remain legal in the UK while waiting to apply for a student visa which was frustrated by your staff.” In paragraph 14 he says, “This is therefore a very good opportunity for the Home Office to put me in a position I would have been, had it been one of your own did not influence the closing of my account in March 2011.” The letter concluded, “I most humbly plead with the Home Office in the name of everything that appeals to you to salvage my academic mission in the UK, which came crashing in 2011 through the actions of one of your own, by granting this my humble request …”.[19]The response on 3 April 2013 was, “Thank you for your letter dated 13 March with supporting documents. I am returning all documents as you need to submit a Tier 4 application for consideration and pay the appropriate fee.”[20]The claimant says, both in writing and again in his submissions to me, that that response, through silence and through a failure to take issue with what he had said in his own letter of 13 March, was an admission of wrongdoing and would be understood as such by any reasonable person. I regret to say I do not for one moment accept that. The letter of 3 April 2013 was simply a letter from a caseworker. It was not a letter from someone engaged in litigation and did not purport to be. It simply was, on its face, an indication that what was sought had to be sought by a Tier 4 application.[21]The claimant contends that the defendant’s officer who responded to his letter knew and must have known his standing—that is, that he had no standing to make a Tier 4 application—because the response shows the case ID number, which provided access to his details and necessarily to his immigration status. As proof of that he refers to page 71 in the bundle. He submits that the letter of 3 April, read by any reasonable person with a knowledge of the letter that had preceded it and of the claimant’s immigration status, would be taken not only as an admission of wrongdoing, but as an authorisation of the application and an assurance that the claimant would be put into the position that he would have been in had it not been for the wrongful actions of the defendant’s officers in 2011. He says that he was led on by the terms of the letter and that the Secretary of State, through her officer, could not properly have invited him to make a Tier 4 application that was bound to fail, particularly when it involved the payment of a fee which would necessarily be lost and would, as he puts it, be an unjust enrichment to the defendant. He says that in those circumstances the Secretary of State ought to have exercised a discretion outside the rules and should not have been bound by the strict provisions of paragraph 245ZX.[22]Cogently though the claimant has advanced his submission, I am afraid I am unable to agree with it. The claimant’s letter of 13 March 2013 amounted to a request for something that was properly Tier 4 leave to remain, but the request was not made by way of a formal application and could not be considered as such. Perhaps it would have been helpful if the response of 3 April had given some form of general advice, but the fact that the case worker had identified the claimant’s identification number is not a reasonable basis for supposing that the case worker was offering any kind of advice, far less that he or she was making any kind of assurance as to exercise of discretion outside the rules. There was no admission in the letter, and it is not a reasonable construction of the letter to suppose that it constitutes an admission. Nor is it a reasonable construction of the letter to suppose that it contains any form of assurance or gives rise to any legitimate expectation that there would be an exercise of discretion outside the rules. It was simply a statement that if the claimant wanted what he was requesting, he would need to apply for a Tier 4 leave to remain. That was correct. The claimant applied in circumstances where the Tier 4 application had, sadly, no merit. That is as far as the matter goes. Put shortly, it is impossible to conclude that, by telling the claimant that he needed to submit a Tier 4 application, the case worker was giving him an assurance that something other than Tier 4 leave to remain would be given.[23]In those circumstances, and in agreement with the way in which HHJ Jarman QC dealt with the matter on paper, and with Mr. Canning’s submissions, I conclude that there is no arguable ground for saying that the decision in the letter of 3 June 2013 was wrong. Sympathetic though I am to the claimant, I shall refuse his application. As I indicated at the outset, I shall make no order as to costs.