Vellore, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 724 (Admin)

Case No CO/11016/2011[2013] EWHC 724 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8 March 2013
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE JARMAN QC
(Sitting as a Deupty High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF VELLOREClaimantv
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 7404 1424(Official Shorthand Writers to the Court)
Mr M Gill, QC and Mr M Ganesan (instructed by KTS Legal) appeared for ClaimantMr R Moules (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: The claimant, Mr Vellore, seeks permission to review a decision of the defendant, the Secretary of State for the Home Department, dated 19 June 2011 and/or 30 September 2011, refusing to reconsider a decision to grant the claimant three years leave to remain and refusing to grant indefinite leave to remain. He seeks an order quashing that decision and a declaration that any reasonable exercise of the decision would have led to the grant of indefinite leave to remain.[2]The claim was originally formulated on a number of grounds, permission to proceed for which was refused on the consideration of the papers. However, by an order dated 16 May 2012 by Mr John Bowers QC, sitting as a Deputy High Court Judge, permission was granted on ground 1 and an application on behalf of the claimant for an extension of time to bring those proceedings was granted. Ground 1 is on the basis that the decision under challenge was unreasonable or irrational.[3]The background facts briefly are that the claimant, an Indian national, came to the United Kingdom in January 2006 as a work permit holder with leave to enter and remain here for five years until 4 January 2011. He worked as a restaurant manager here and paid taxes on his earnings. He expected that the then rules relating to work permit holders would enable him to obtain indefinite leave after five years, as long as he complied with the conditions of entry. That is because the the Immigration Rules, at paragraph 134, HC 395, provide as follows:
"134. Indefinite leave to remain may be granted on application provided the applicant: (i) has spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a work permit holder (under paragraphs 128 to 133 of these rules)."
[4]On 7 September 2006 he left the United Kingdom for a visit to India to get married there. On 24 October 2006 he suffered a motor accident in India. He was due to return to the United Kingdom and to resume his employment at the beginning of November that year. However, because of injuries which he received in the accident, he had to undergo hospital treatment in India and could not return to the United Kingdom until 18 January 2007.[5]On 30 August 2007 his wife joined him in the United Kingdom. On 17 October 2010 she returned to India because of complications she was having with her pregnancy. She expected to return to the United Kingdom in due course. On 13 April 2011 she gave birth to a baby girl. On 4 January 2011 the claimant applied for indefinite leave to remain in the United Kingdom. By a notice dated 22 March 2011, the defendant refused to grant such leave on the grounds that the claimant had been absent from the United Kingdom for a period variously described in that document as 7 August 2006 to 18 January 2007, and 6 September 2006 to 18 January 2007. Accordingly, the defendant was not satisfied that the claimant had spent a continuous period of five years in the United Kingdom in the capacity of a work permit holder. However, the defendant then went on to state that she would exercise discretion and allow the claimant to aggregate leave before and after his absence so that he would be permitted to apply for indefinite leave on or after 17 May 2011.[6]There was a subsequent appeal by the claimant and the Immigration Judge came to the view that because of the family situation of the claimant it would be disproportionate to require him to leave the United Kingdom. On reconsideration of the defendant's position in light of that decision, the defendant, in June 2011, was granted discretionary leave to remain for three years. I shall come in due course to examine the detail of those events in greater detail.[7]Before I do that I will set out the legal framework within which those events must be considered. The power to grant leave to remain is given in s.3 of the Immigration Act 1971. The Secretary of State has a discretion to go beyond the Immigration Rules and to grant leave to remain to those who do not qualify thereunder. There is no dispute in this case that the defendant could exercise discretion to grant indefinite leave to remain to the claimant.[8]Section 3C of the 1971 Act provides as follows:
"Continuation of leave pending variation decision (1)This section applies if - (a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, (b)the application for variation is made before the leave expires, and (c)the leave expires without the application for variation having been decided. (2)The leave is extended by virtue of this section during any period when - (a)the application for variation is neither decided nor withdrawn, (b)an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought [while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or (c)an appeal under that section against that decision [brought while the appellant is in the United Kingdom] is pending (within the meaning of section 104 of that Act)... (4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(a) "

[9]The defendant has issued policy guidance in relation to the operation of section 3C. In respect of first application for further leave to remain, the key points are set out in paragraph 2.1 as follows:
"2.1. Key points • Section 3C only applies where an application for extension of stay is made before the expiry of the person's leave and the leave expires before the application for variation has been decided; • Its effect is to extend the leave and any conditions attached to it while the application is neither decided or withdrawn, while an in-country appeal could be brought, or while an appeal is pending; • Section 3C does not apply if an application is refused before substantive leave expires; • Section 3C does not apply where a person's limited leave has already expired at the time of the application."
The next section deals with second and subsequent applications. Under 3.2, this is said:
"While either section 3C or 3D leave is in force, the applicant is not entitled to make any more applications for variation of leave to enter or remain... On the other hand, it is possible to vary the grounds of an application already made even by introducing something completely new. If an application is varied before a decision is made, the applicant will be required to complete the necessary prescribed form to vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal. As a result, there may be little difference in practice between a fresh application and a request to vary an existing application. The distinction is made to ensure that all a person's grounds for wishing to remain in the UK result in one decision and thus one appeal. This 'one-stop' principle - one application, one decision, one appeal - is essential to the operation of the appeal process that was introduced in the 1999 Act and has been extended by subsequent Acts. However section 3C makes a clear distinction between the decision on the application and the appeal against that decision. Once an application has been decided it ceases to be an application and there is no longer any application to vary under section 3C(5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application. When section 3D applies leave has been curtailed or revoked. Thus there is no application for the variation of leave and the question of whether an application can be varied or not does not arise."
[10]The effect of section 3C has been considered by the court on a number of occasions, including by the Court of Appeal in JH(Zimbabwe) v SSHD [2009] EWCA Civ 78. Richards LJ, giving a judgment with which the other Court of Appeal Judges agreed, said at paragraph 35:
"35. The key to the matter is an understanding of how s.3C operates. I have set the section out at para 10 above. The section applies, by subs.(1), where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2), a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending."
[11]There appears to be no guidance on the way in which the words "continuous period" in paragraph 134 of HC/395 are to be construed. In BD (work permit - "continuous period") Nigeria [2010] UKUT 418 (IAC), the Upper Tribunal, which consisted of Cranston J and Upper Tribunal

Judge McKee, considered the construction of paragraph 134 and at paragraph 10 said this:

"10. The question of interpretation comes down to this. Paragraph 134(i) is not meant to be taken literally. If it were so taken, anyone who wanted to qualify for indefinite leave after five years would be unable to take even a day trip to France, or visit his own country on family matters... As a literal construction makes no sense, the rule has to be construed sensibly. It clearly imports a discretion - a discretion which can be exercised by us - as to how much absence can be disregarded in the calculation of a 'continuous period' of five years. Of relevance, in our view, will be the reason for the absence, and the strength of the person's ties to the United Kingdom, as shown in other ways. In the instant case, the appellant's absences have been required of him by his employer, a British company, and he has at all times retained his base in the United Kingdom. He is domiciled here for tax purposes, and would seem to have established a domicile of choice for other purposes. He has clearly made this country his home. In those circumstances, we find that he does meet all the requirements of rule 134, and that [the immigration judge] erred in law by giving the rule a restrictive interpretation."
[12]As from 13 December 2012, further changes have been made to the Immigration Rules so as to include a new provision in relation to those who can still benefit from indefinite leave to remain under paragraph 134 of paragraph HC/395 as former work permit holders. It is part of the claimant's case that the decision by the defendant in respect of his application for indefinite leave to remain is one which imposed a duty to act fairly when considering the applications. That requirement has been referred to in a number of cases including, for example, Patel (revocation of sponsor licence - fairness) India 2011 UKUT [2011] (IAC).[13]The claimant also relies upon s.55 of the Borders Citizens and Immigration Act 2009 which provides that, in relation among other things, to immigration, asylum on nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". It is accepted that that section refers to children in the United Kingdom but the claimant submits that the UK Border Agency has made it clear in policy guidance on children that the spirit shown in that section applies to children out of the country.[14]I now come to examine the process of the application in greater detail. The notice dated 22 March 2011 in response to the claimant's application for indefinite leave to remain provides as follows:
"You applied for indefinite leave to remain as a work permit holder, but your application has been refused. In view of the fact that you were absent from the United Kingdom in a single absence from 7 August 2006 and 18 January 2007, the Secretary of State is not satisfied that you have spent a continuous period of 5 years in the United Kingdom in this capacity. In light of your particular circumstances, the Secretary of State has decided to exercise her discretion in your favour for the absence between 7 September 2006 and 18 January 2007 and allow you to aggregate your leave to remain. You will therefore be eligible to apply for indefinite leave to remain in this capacity 28 days prior to, on or after 17 May 2011, so long as you still meet all the requirements of paragraph 134 of HS395 (as amended). As your leave expired on 4 January 2011 you will need to apply for further leave to remain as a Tier 2 Migrant if you wish to qualify for Indefinite Leave to remain."
[15]The notice then goes on to consider the claimant's application under Article 8 of the European Convention on Human Rights. The factors included whether the defendant's actions would be interfering with the right to family life. The conclusion was that this would have a minimal effect and that the right to family life does not mean that the individual can choose where to enjoy that life. There was limited interference but those were not insurmountable obstacles to a right to family life enjoyed overseas. The notice went on to say that the defendant did not take the view that the claimant and his wife have substantive ties to the United Kingdom which would prevent them from enjoying their family life overseas to the same standard of living. The notice goes on:
"Both Mr and Mrs Vellore Indian nationals in the United Kingdom as a work permit holder and work permit dependent. Both are employed in the United Kingdom for the last few years; Mr Vellore has been employed as a full time Restaurant manager and Mrs Vellore has worked as a sales clerk for a wholesale shop and then most recently as a part time accounts assistant."
Accordingly, the request to be granted leave under Article 8 was refused.[16]There was correspondence then between solicitors acting for the claimant and the defendant. One such letter was dated 6 May 2011 which was expressed to be further to the refusal on 22 March 2011. The letter says this:
"Please note that we have filed an appeal against the above refusal and the appeal is listed for a hearing on 13th May 2011. Please find enclosed a copy of the notice of hearing from the tribunal's service. We would be grateful if you could reconsider the decision on discretionary and compassionate grounds so that the parties to the appeal could save both valuable time and costs by not attending the appeal hearing."
[17]The letter then goes on to set out what was said to be the factors which would ensure that the appeal succeeded. It refers to the mistake in the 22 March letter referring to 7 August 2006 as the start date of the absence. It refers to the wedding that had taken place in October with a return ticket for the first week of November 2006. It then refers to the accident on 24 October 2006 in which the claimant suffered injuries to his right shoulder and ligament injuries to his right shoulder. Other medical records were submitted as part of the application for indefinite leave to remain. The claimant was advised by doctors to undergo rehabilitation and was found not fit to travel and, accordingly, he did not return to the United Kingdom until 18 January 2007.[18]The letter referred to the fact that the claimant and his wife had been living together in the United Kingdom as a family since August 2007. The letter ends by asking the defendant to exercise discretion, to reconsider the decision on the above grounds and grant the claimant indefinite leave to remain in the United Kingdom and inviting the defendant to respond urgently and, certainly, before the hearing that was listed on 13 May 2011.[19]The defendant did respond promptly by letter dated 9 May 2011. It is accepted that there was a mistake in relation to the commencement of the period of absence. There was an apology offered and the letter continues:
"We apologise for this error which has now been amended and I have enclosed a new refusal notice and an appeal form for your attention. Please note the eligibility date for ILFR is still 17 May 2011. Your letter details the reasons for Mr Vellore's absence from the UK and cites your claim for leave under Article 8, however these factors have already been taken into account when considering the initial refusal. I can not see any fresh grounds for us to reconsider all which would change the outcome of Mr Vellore's ILR application, therefore the decision to refuse Mr Vellore's ILR is maintained."
Some four days later, the claimant's solicitors wrote again. The letter includes these paragraphs:
"In your refusal, you have suggested that the applicant can aggregate his leave and submit a fresh application for indefinite leave to remain, 28 days prior upon or after 17 May 2011. By filing an appeal against your refusal, the applicant continues to stay in the UK legally and as a work permit holder working for the same employer. The applicant therefore by now had aggregated his leave to remain and he should therefore be granted indefinite leave as per the concession that you have granted in your refusal letter. We have spoken to Ms Yana Mason on this and she suggested that the applicant should first obtain an extension as a Tier 2 general migrant by obtaining a certificate of sponsorship from his sponsor and then submit a fresh application for ILR. We have explained to her the difficulties that the applicant would face if he has to go down that route, due to the changes in the immigration rules and the fact that the applicant's stay in the UK as work permit holder during the time of the appeal would make him eligible to aggregate his leave as required by UK Border agency to qualify for ILR"
. Again, the letter asked for an urgent response before 13 May 2011. In the absence of a satisfactory response the appeal proceeded. The claimant was represented by counsel. There was no appearance on behalf of the defendant.[20]The Immigration Judge in a determination promulgated on 23 May 2011, set out the reasons for refusal in the defendant's letter. He then went on to say that the claimant had made a number of comments in relation to these reasons. The first was the error of calculation. The second was the background to why the claimant did not return to the United Kingdom by 5 November 2006 as originally intended. Then there was a reference to the fact that the claimant's wife was presently in India and had not yet returned to the United Kingdom because of the difficulty involved with this refusal. But, "they intend to return if the appellant's appeal is allowed".[21]The findings of the Immigration Judge included that as the claimant had clearly not had continuous residence in the United Kingdom for five years, his appeal could not succeed under paragraph 134 and that the only argument open to him is an Article 8 argument. At paragraph 25, the Judge says this:
"The argument I believe is that the Appellant has been here for around five years and has built up a private life which must be the case. He has a good job. The intention of the family as far as I can gather is that his wife if this appeal is successful will return to the United Kingdom but will not work. She will look after their child. Further, the Appellant adopts an argument that the mistake of the Respondent in working out the period during which the Appellant was out of the United Kingdom makes it harder for the Appellant to be successful in future with regard to any application under the new Rules. I have no evidence with regard to this and to some extent it is conjecture but I do take into account the fact that the Appellant feels that this is the case."
He went on to find that the claimant was away from the United Kingdom longer than he intended, through circumstances totally out of his control, and that he would have complied with the rules and the interpretation of the rules which the defendant employed if he had returned as intended.[22]Accordingly, it was determined by the Judge that it would be disproportionate for the claimant to return to India and resume his private life there, mainly in light of the background of his not returning as intended through circumstances beyond his control. The defendant, as she was obliged to do, considered that judgment and, by a letter dated 17 June 2011, wrote to inform the claimant that, although he did not qualify for leave to remain in the United Kingdom under the Immigration Rules it had, nonetheless, been decided that discretion should be exercised in his favour. He had therefore been granted limited leave to remain in the United Kingdom in accordance with the principles set out in the Home Office policy instruction on discretionary leave. That sets out the criteria for granting discretionary leave which includes "Cases return would breach Article 8" of the Convention.[23]On 15 August 2011 the claimant's solicitors wrote what was called a pre-action letter and, again, set out the claimant's case. By an e-mail dated 16 September 2011 the solicitor e-mailed Miss Mason referring to correspondence that she has been receiving obtaining the earlier decision. The e-mail again set out the background and said this:
"(...) When you refused his application, you exercised discretion and gave Mr Vellore a right to submit ILR application 28 days prior to 17th May 2011. He appealed against that decision as he could not extend his leave as his sponsor was required to have a Tier 2 Sponsor Licence and allocate a Certificate of Sponsorship to Mr Vellore in order for him to extend his leave. I wrote to you on the 10th May 2011 confirming that the appellant had completed his stay by aggregating his leave by virtue of his appeal and under section 3C of the act and have requested you to grant him ILR, but you did not consider our request at that stage. Therefore the appellant had no other choice but was compelled to proceed with the appeal hearing on 13th of May 2011. As the appeal was allowed on Human Rights Ground, we were hoping that he would be granted an ILR as the appeal was allowed against the refusal of an ILR application. But to all our surprise DL was granted which made Mr Vellore's life more difficult as he could not bring his family back to the United Kingdom with that leave. He is now in a limbo where he would need to spend another 6 years on DL before he could apply for ILR, especially when he had already spent 5 years in the UK as a Work Permit holder. It is an unusual case with very unusual circumstances and I am sure that you would not have come across such cases in the past and certainly I did not. I therefore think it deserves a more compassionate treatment and that it should be considered outside immigration rules."
[24]There were further letters and, by letter dated 30 September 2001, Miss Mason replied and included the following:
"Thank you for your letters of 19 and 23 September about your above named client. I am sorry to hear that you are unhappy with my reply of 9 September, in response to your letter before claim of 15 August requesting the reconsideration of Mr Vellore's case, and that you are still intending to seek a Judicial Review of this matter. Whilst the absence that broke Mr Vellore's continued residence may have been outside of his control, the Immigration Judge who heard his appeal did take this into account but still found that we were correct to refuse his application under the Immigration Rules. As a result this aspect of Mr Vellore's appeal was dismissed ... Having made an in-time application for Indefinite Leave to Remain (ILR) on 4 January 2011, Mr Vellore is considered to have had continual leave as a work permit holder up until his appeal was determined on 23 May. Although we did agree to allow Mr Vellore to aggregate his leave at the time of the refusal of his application on 22 March, so that he would become eligible for apply for ILR on 17 May provided that he was able to complete this period with leave in a qualifying category, as Mr Vellore's application had already been decided before 17 May we were unable to take a fresh decision on the basis of the leave that he had accrued thereafter. Mr Vellore would have been expected to have sought further leave to remain (FLTR) as a sponsored worker under Tier 2 of the Points Based System for immigration, which has replaced the former Work Permit Scheme, to reach the threshold for ILR. Mr Vellore alternatively chose to pursue his case through the appeals system ..."
There is then a reference to it not being possible to switch into Tier 2 from within this country after an individual had been granted DLR and continued:
"Our policy on granting DLR to those who appeals have been allowed on human rights grounds has been in existence since 2003 and it is surprising that you have not previously encountered it. There is no specific provision for Mr Vellore's family to join him in this country on the basis that he has been granted DLR, but there is nothing to stop Mr Vellore travelling to India to be re-united with them. The Immigration Judge had heard Mr Vellore's appeal anticipated that he might do this despite allowing it on human rights grounds"
. The letter then went on to say that the overall position was that the claimant was unable to qualify for ILR as a work permit holder because of his absence and that he is now unable to qualify under Tier 2 to allow him to reach the threshold, having been granted DLR. The letter continues:
"Whilst Mr Vellore has been granted DLR, he finds this status undesirable as he is unable to sponsor the entry of his family, and is unwilling to return to India to join them. This is not an unusual case, it is just that Mr Vellore's application was unsuccessful and that the Immigration Rules do not immediately allow him to change his status from within the UK."
[25]Miss Mason filed a witness statement dated 11 September 2012 in these proceedings. She confirms that she was the case worker who dealt with the claimant's application for indefinite leave to remain dated 4 January 2001 and wrote the letters dated 17 June, 9 and 30 Septembers 2011. She confirms that he was refused ILR because he did not fulfil the requirements of paragraph 134 of the Immigration Rules. There was reference to the exercise of the defendant's discretion and Miss Mason says that she decided that the claimant should be allowed an opportunity to aggregate any period of further leave with his existing leave so that he could reapply for ILR under paragraph 134. Then comes paragraph 4 which says this:
"4. In order to do so, the claimant would need to accrue further leave. He therefore would need to make an application for further leave to remain under one of the provisions of the Immigration Rules for which he was eligible. At the relevant time, this means that the claimant would need to have submitted an application under Tier 2 of the Points Based System (...); or for leave as a self-employed lawyer (...); or for leave as a writer, composer or artist (...) 5. The purpose of the application is to obtain further leave which can then be aggregated with his previous leave until he had had a sufficiently long period of residence to be eligible under paragraph 134 of the Immigration Rules for ILR. 6. I explained this to the Claimant's solicitors in a telephone conversation on 15 March 2011. The Claimant's solicitors indicated that they did not consider that their client should be required to apply for further leave, and that the decision to refuse ILR dated 22 March 2011 was not in accordance with the Immigration Rules. They indicated that their client would appeal against the decision on, inter alia, the grounds that it violated his rights under Article 8 (...) "
[26]The statement then goes on to deal with the procedure of dealing with applications under paragraph 134 which Miss Mason routinely deals with. At paragraph 11 she said that some applicants accrue a sufficient period of leave under section 3C of the Immigration Act 1971 whilst the appeal is pending. Those applicants do not need to apply for further leave. When sufficient leave has been accrued they withdraw their appeal and submit a new application for ILR under paragraph 134. The statement continues:
"They would not be refused because, technically, they will have overstayed their leave for less than 24 hours. Paragraph 134 of the Immigration Rules does not require an applicant to currently hold valid leave. They can apply when they have no leave, so long as the most recent leave he or she held was in one of the qualifying categories specified in paragraph 134."
Then, further down in paragraph 13, Miss Mason observes that the claimant did not apply for further leave but instead appealed. She says:
"At that point, he could have sought to vary his 4 January 2011 application, which was the subject of the appeal, to take into account the longer period of leave."
[27]I turn now to a discussion of the disputes between the parties. There was a significant dispute as to the true nature of the letter of notice dated 22 March 2011. Both parties before me have referred to that letter as containing an offer by the defendant to the claimant. Mr Gill QC, on behalf of the latter, submitted that the offer was put on the basis that a further application to remain would have to be as a Tier 2 migrant. It is not in dispute that that would require the claimant to satisfy significantly more stringent retirements, for example, a substantially higher salary than he was earning at the time as a restaurant manager. Nor is it asserted by Mr Banner on behalf of the defendant that, on the evidence, the claimant was in a position at that time to satisfy such requirements.[28]What is asserted on behalf of the defendant is that the reference in that letter to an application for leave to remain as a Tier 2 migrant is an error which was obvious and which the claimant's solicitors ought to have been, and indeed were, aware. Leave did not expire on 4 January 2011 and, accordingly, this paragraph in the letter can simply be ignored.[29]I accept as a matter of principle that applicants and legal representatives can be taken as knowing the law. I accept also that it was plain that the claimant's leave did not expire on 4 January 2011 because he had made an application to extend his leave. However, the 22 March letter, having set out the basis of refusing indefinite leave to remain, that is the failure to satisfy the defendant that the claimant had spent a continuous period of 5 years because of the absence at the end of 2006 and the beginning of 2007, then went on to set out that the defendant had decided to exercise a discretion in the claimant's favour by allowing him to aggregate his leave to remain so that he would be eligible to apply for indefinite leave to remain 'in this capacity' 28 days prior to, on or after 17 May 2011 'so long as you still meet all the requirements of paragraph 134 of page HC395 (as amended)'. Then comes the reference for the need to apply for indefinite leave to remain as a Tier 2 migrant if the claimant wished to qualify for such leave.[30]The following points, in my judgment, are important. Firstly, if the reference in that letter to a further application as a Tier 2 migrant was an error it was an error which remained uncorrected. That is to be contrasted with the correction of the date upon which absence began, which was corrected in the letter dated 9 May 2011.[31]Secondly, in the letter dated 10 May 2011 to Miss Mason, the claimant's solicitors asserted that they had spoken to her and that she had suggested that the claimant should obtain an extension as a Tier 2 migrant by obtaining a certificate of sponsorship. That assertion has not been contradicted.[32]Thirdly, the reason which the claimant's solicitors gave to Miss Mason in the e-mail dated 16 September 2011 for appealing was that the claimant could not extend leave as his sponsor was required to have a Tier 2 sponsor license. Again, that was not contradicted.[33]Fourthly, indeed, by the letter dated 30 September 2011, Miss Mason again made reference to the claimant's application having been decided before 17 May and that the defendant was unable to take a fresh decision on the basis of the leave that accrued thereafter. Mr Banner on her behalf submitted that that was intended to refer to a further decision on the application for indefinite leave to remain because that was then in the hands of the Tribunal. Then, the further reference to the claimant seeking further leave to remain as a Tier 2 migrant worker was, as Mr Banner accepted, incorrect. He submitted that that was one option open to the claimant and not the only option. In my judgment, if that was intended to be said in the letter of 30 September 2011, it was not so said.[34]Fifthly, Miss Mason's witness statement does not explain these matters as errors. Indeed, in paragraph 4 of the witness statement there is another reference to the need at the time of the 22 March letter to submit an application under Tier 2. In paragraph 6 she says she explained those matters to the claimant's solicitors in a telephone conversation on 15 March.[35]In my judgment the proper inference to be drawn from those factors is that the impression given by the defendant during the crucial time from March to May 2011 and maintained up to and including the letter of 30 September 2011 was that the defendant was requiring an extension as a Tier 2 migrant worker by the claimant. The letter of 22 March itself was confusing and contradictory, but by May 2011, Miss Mason had indicated that that was what was required. Furthermore, in my judgment, it is clear that that was a reason why the claimant's solicitors advised on an appeal and that is why the appeal was made. In my judgment, that was a reasonable response to the events which had preceded that appeal.[36]There is a further issue as to whether the letter of 10 May 2011 was an application for indefinite leave to remain. It is not in dispute that such an application requires the completion of an application form and the payment of a fee of several hundred pounds. The exact figure of the fee at the time was not made available to me. Mr Banner submitted that as there was no form and no payment then there was no application as he submitted was offered by the letter dated 22 March. Mr Gill submitted that the claimant had already made an application and paid the fee so that this request of 10 May was a variation.[37]In my judgment, having regard to the guidance I referred to earlier and that relating to the principle of one-stop, the claimant's application was refused on 22 March and ceased to be an application. Any new information was to be put forward as part of the appeal. There was to be no reconsideration pending the appeal and no further application. Mr Gill further submitted that on the appeal the Immigration Judge ignored the principle set out in BD Nigeria. This was not cited to him and it is not surprising, therefore, that he did not go through the analysis referred to in that case. Moreover, there was no appeal. Mr Gill accepted, therefore, that the decision was valid. But his submission was that the defendant should revisit that issue. It is not in dispute, however, that the defendant should take into account the findings in that decision.[38]Mr Gill further submitted that instead of applying the usual rule of giving 3 years discretionary leave when Article 8 grounds have been made out the defendant should have considered indefinite discretionary leave and should have taken into account a number of factors which may be distilled as follows. First, the requirement to gain Tier 2 extension and the difficulty for the claimant in doing so. Secondly, it was not drawn to his attention that the appeal could be withdrawn and an application for indefinite leave to remain made within the 24 hours, as set out in paragraph 11 of Miss Mason's witness statement. Thirdly, the Immigration Judge did not consider or go through the analysis required by BD Nigeria and, finally, the impact on the claimant's wife and child.[39]On the other hand, Mr Banner submits that the offer which the claimant's solicitors knew, or should have known, was set out in the letter of 22 March 2011 and was not taken up. There was no appeal from the decision of the Immigration Judge. It was not an unusual case. It was his submission that the decision in question is that dated 19 June and that the letter of 30 September explains the reasoning behind that decision and I accept that is a correct analysis.[40]In my judgment, however, the true position lies between these two extremes. I do not accept that the Immigration Judge was wrong. There was no analysis as I have indicated, but that authority was not cited and there was no further appeal. I accept those circumstances should have been taken into account by the defendant, but in my judgment, they were, see for example letters dated 9 May and 30 September. I accept also that the impact on the claimant's wife and child should be taken into account despite the submission of Mr Banner that such factors were irrelevant. The defendant, however, appears to have considered these factors, see the letters of 22 March and 30 September, and did so, in my judgment, in a way that is not impeachable.[41]However, I do not accept that this case was a usual case. In my judgment, it was not; it was an unusual case. In granting discretionary leave to remain, the defendant in my judgment did not take into account the confusion which letters on her behalf brought about as set out above. Indeed, this confusion continued until 30 September 2011. In my judgment, that confusion was, in large part at least, responsible for the position in which the claimant found himself. It is not simply a case of not accepting a clear offer. In my judgment, this renders the decision of 19 June, as explained on 30 Sept 2011, flawed. Moreover, the defendant should have taken this into account in deciding whether or not to grant indefinite leave to remain. It is not adequate to fetter that discretion simply by applying the usual policy. Mr Gill took me to other cases where such leave has been granted after a decision of an Immigration Judge along similar lines. In the alternative, in my judgment, these matters constitute a breach of the defendant's duty to deal with the claimant's application for indefinite leave fairly. In my judgment, that was not done.[42]Accordingly, the decision of 19 June must be quashed. In view of my findings it is not appropriate for me to make a mandatory order requiring the defendant now grants indefinite leave to remain. That discretion remains that of the defendant, but it must be exercised, taking the matters which I have found to be material.[43]MR GILL: My Lord, I am sure we can draw up an order on the basis of that judgment.[44]THE DEPUTY JUDGE: Thank you.[45]MR GILL: The only matter I think remaining from our side is an application for costs. I ask the defendant be ordered to pay the claimant's costs, such costs to be assessed if not agreed.[46]THE DEPUTY JUDGE: Any dispute as to that?[47]MR MOULES: Thank you, my Lord. There is agreement there should be detailed assessment in this matter. I am instructed that there's one matter on costs. There was an application to adjourn in February on the basis that the claimant's counsel was not available and obviously he is available now and so that matter should be excluded from the recoverable costs.[48]THE DEPUTY JUDGE: Yes. Mr Gill?[49]MR GILL: I don't really follow what that means. All that happened in February is that there was a difficulty with my diary. I was triple-booked for yesterday. We therefore invited the other side to adjourn. That application was refused. It was a perfectly reasonable application.[50]THE DEPUTY JUDGE: It was reasonable but it was refused and I think what has been said is that the costs of dealing with that, they can be very high, can they?[51]MR GILL: My Lord, I won't press the point. I will accept what my learned friend says. May I just take instructions?[52]THE DEPUTY JUDGE: Certainly.[53]MR MOULES: My Lord, I am also instructed to seek permission to appeal. I do not seek to re-argue the case, I rely on skeleton argument. For those reasons I say there's a realistic prospect of the Court of Appeal reaching a different view.[54]THE DEPUTY JUDGE: Thank you. I am afraid I am against you on that but, of course, you have the opportunity to re-apply. Is there anything else?[55]MR MOULES: No, my Lord.[56]THE DEPUTY JUDGE: Thank you all very much.

Cited in 1 later judgment