Shaikh, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 2586 (Admin)

Case No CO/2604/2013[2014] EWHC 2586 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16 July 2014
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE ALLAN GORE QC
(Sitting as a Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF SHAIKHClaimantv
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 Zane Malik and Mr Darryl Balroop (instructed by Khan's Solicitors) appeared for ClaimantMr Christopher Staker (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N TJUDGE GORE:
[1]The claimant is a citizen of India, born on 16 February 1990, so he is now aged 24. On 9 October 2010 he arrived in the United Kingdom with an entry clearance as a Tier 4 general student which had granted him permission to enter and remain as a student until 17 May 2012. In time, although I have to acknowledge not by much, on 12 May 2012 he made an application for further leave to remain.[2]That application was defective according to the rules for the simple and sole reason that it had not been signed by the applicant. That mandated the Secretary of State's officials to treat the application as invalid for these reasons.

(c) provided that:

"Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34(a) such application or claim will be invalid and will not be considered"
. That phrase, "will be invalid", is the source of the mandatory requirement of the officials of the Secretary of State to treat an unsigned application form as invalid.[3]Despite that defect, the Secretary of State acknowledged receipt of the application on 16 May 2012. The letter of acknowledgement stated that:
"If there is any problem with your application such as missing documentation, a case worker will write to you as soon as possible to advise what action you need to take to rectify the problem."
[4]There is no evidence as to the date of receipt of either of these letters, but doing the best that I can in acknowledging that first-class post is no longer a promise of next day delivery, the realistic inference to draw is that these communications would have been received by their addressees on the second day after the date on which they were dispatched and that they are to be regarded as probably having been dispatched on the day on which they are dated. On 25 June 2012, that is therefore 39 days after the applicant applied for leave to remain, the Secretary of State rejected his application as invalid on the basis that the application form was not signed.[5]The decision letter is included within the bundle of papers prepared for the purpose of this hearing. It is quite simply a standard letter under a heading within which is said reasons why the application is invalid and a number of tick-box alternatives are given to the author or dispatcher, and the only box ticked in this case reads:
"The form must be signed by the applicant and, where applicable, the applicant's spouse, civil partner, same sex partner or unmarried partner, save that where the applicant is under the age of 18, the form may be signed by the parent or legal guardian of the applicant on his or her behalf."
So it is that the ground of the decision is not tied to any specific provision within the Immigration Rules.

(a) (iii) which provides:

"Any section of the form which is designated as mandatory in the application form and/or related guidance notes must be completed as specified."
[6]Certainly, one part of his case today was that, if and to the extent that that afforded the ground for the decision-maker's decision, there was a legality challenge that was open to him that I will turn to a little later. It is material for me to note and observe that, in the decision letter, it is not specified that the invalidity relied upon is either Rule 34(a) (iii) or Rule 34(a)(vi)(b). It is simply asserted that the form was not signed.[7]It is asserted, and there is no evidence to the contrary, and frankly no argument to the contrary, that what the applicant did in those circumstances was to correct the error by signing the form and re-submitting it. It is relevant in my judgment for a reason that I will come to, that he did not complete a new application. He simply signed and re-submitted the original application.[8]On 24 June 2012, the Secretary of State acknowledged that re-submitted application and, after a delay of nearly four months, the Secretary of State then issued a decision dated 21 November 2012 to refuse the application because, by now, at the date of re-submission, the applicant was an overstayer, so that this was not an in-time application and, therefore, the applicant was unable to meet certain other requirements that applied to such out-of-time application.[9]In response to that, on the very last day possible - so, again, leaving matters frankly much too late - on 21 February 2013, the claimant issued the judicial review claim form in this case. The Secretary of State filed acknowledgement of service and summary grounds of defence and it is in the summary grounds of defence that the Secretary of State drew attention, not to Rule 34(a)(vi)(b), but to Rule 34(a)(iii) and that it is which Mr Malik submits results in him being entitled to say as a matter of pleading that the defendant's case is based on Rule 34(a)(iii) and, if that is the defendant's case, then he challenges the validity of that provision in the context of this case because, contrary to the requirement of section 3(2) of the Immigration Act 1971, the application form and the guidance notes relating to it were not part of the materials constituting the statement of rules or changes of rules laid before Parliament and, therefore, that the decision is invalid.[10]It is not disputed in this case that the 13 July 2012 application did not meet the requirements for an applicant who was an overstayer. Nor has the claimant disputed that he would have to meet those requirements if his application was to be treated as having been made on 13 July and, therefore, as an overstayer. Conversely, the Secretary of State accepts that the 13 July application did meet the requirements for an applicant who did have an established presence studying in the United Kingdom, such that if he had not been an overstayer the application would have been granted.[11]The claimant's application for permission to seek judicial review came before Mrs Francis Paterson QC, as she then was, sitting as Deputy High Court Judge on 21 June 2013 without a hearing. She refused the application for permission to seek judicial review, stating her reasons so far as is material, in the following terms:
"The claimant's application for leave to remain as a Tier 4 student was made at a time when the claimant's leave to remain had expired. As such, he had to demonstrate a level of funds under paragraph 11 of the appendix C to the Immigration Rules. The submitted bank statements failed to demonstrate compliance with the Rules so as to entitle the claimant to the 10 points that he needed. As a result, the claimant's application was refused for failing to comply with paragraph 245 ZX(d) of the Immigration Rules."
[12]The claimant, as he was entitled to, filed an application to renew his application orally. He filed it on 27 June 2013 and therefore in time. That was listed before Mr Charles George QC Sitting as a Deputy High Court Judge on 6 September 2013 and he it was who granted permission to apply for judicial review such that the matter now is listed before me today. No reasons were given by him for the grant of permission, nor indeed are any reasons required, but there is nothing therefore to guide me as to what his thinking was in granting the application for permission.[13]In his skeleton argument for the Secretary of State for the purposes of this hearing today, Mr Staker at paragraph 14 submits:
"Thus, the simple issue in this case is whether the Secretary of State for the Home Department lawfully treated the 12 May 2012 application as invalid and lawfully treated the 13 July 2012 application a new application made on 13 July 2012. The Secretary of State for the Home Department submits that the answer to this question [I think he means these questions] is yes."
I respectfully agree that those are the issues for the court to decide.[14]Although encapsulated in what Mr Malik calls two grounds and one of them with two limbs, the following points have been taken in this hearing. The first point is that, if and insofar as the facts are demonstrated to be that the decision of the Secretary of State was based on Rule 34(a)(iii) of the Immigration Rules, those Rules did not afford a lawful basis upon which to base the decision because reliance upon the form and the guidance notes is impermissible, it is argued, because the form and the guidance notes were not laid before Parliament in accordance with the procedure required by section 3(2) of the 1971 Act.[15]With respect to Mr Malik, in my judgment, he misses the point and that is an untenable argument. The reason is this: in order to succeed in persuading me to quash the decision of the Secretary of State on this ground, the claimant needs to establish, the burden being upon him to do so, that the decision was unlawful for the reason maintained by this argument. As I have already indicated the decision letter, and therefore the decision, did not identify which particular provision of paragraph 34(a) of the Immigration Rules was being relied upon. It only identified, and in my judgment only needed to identify, what was the reason relied upon and that reason was the absence of the signature. The absence of the signature may have been required by the form and the notes of guidance which had not been laid before Parliament, but the absence of the signature was also relevant under the Rule itself in sub-paragraph 6(b). That Rule requiring the form to be signed was part of the Rule that had been laid before Parliament and so it is that the first ground raised by Mr Malik must therefore fail.[16]His second ground he describes under the rubric in his skeleton argument as "procedural unfairness". That is based upon the terms of the letter of acknowledgement that was sent to the claimant dated 16 May 2012 because, it is submitted, the proper construction of that letter is that, contrary to the stricture of the Rules themselves, it appeared to intimate to the claimant applicant that he would or might be given the opportunity to rectify mistakes that may have been made in the lodging of the original application.[17]Mr Staker, to the contrary, says that that is not a proper construction of the terms of the acknowledgement letter. It is not to be read as indicating the giving of a second chance but only to be read as identifying what the problem is, in this case the lack of signature, and what you, that is the applicant, needs to do about it. Insofar as the Rules require the Secretary of State to treat as invalid an application that is defective for the absence of a signature, what Mr Staker submits is that what this letter means properly construed is that, to use his words, a "fresh application" would have to be made.[18]So it is that he submits that the letter does not intimate that the defendant would, after the event, treat as valid, what before the event on the Rules mandatorily was to be treated as an invalid application. There was therefore he submits no procedural unfairness. I respectfully agree with his construction, with perhaps one hesitation or reservation. That is that the letter did not in fact send the message that it was necessary to make a fresh application. It could have been the message that it was necessary to resubmit the application. Instead the letter could be misinterpreted as giving an opportunity to correct and re-submit. But, either way, fresh or re-submitted, it would have been out of time and it would have carried with it the additional requirements according to the facts of this particular case.[19]If I am right in my conclusion, and that is my finding, as to the proper construction of the letter, it follows that the procedural unfairness complaint raised by the claimant fails. It fails despite what I acknowledge to be the seriousness potentially of the consequences which are dealt with in paragraph 14 of Mr Malik's skeleton argument where he submits that it is relevant to consider what are the potential effects of the state of affairs then brought about. Those effects could include: making the individual concerned an overstayer, as occurred here; rendering such an overstayer liable to criminal prosecution, if prosecuted; rendering the overstayer liable potentially to a sentence of imprisonment; subjecting the overstayer to the liability to removal and to administrative detention pending removal; and subjecting the overstayer to additional more onerous requirements in order to secure the grant of permission to remain. All of that stems from the invalidity of the original application, its rejection out of time and at a time then when the applicant could no longer make an in-time application for an extension of time for leave to remain.[20]Those factors become relevant in my submission when one turns to the third ground of challenge raised which Mr Malik. That is, he submits, that there is a residual discretion under the Immigration Act 1971, and the subordinate rules and regulations, to grant leave to remain even in circumstances where the requirements of the Immigration Rules are not met. He submits that the decision of the Secretary of State to reject the re-submitted application was unlawful because there was no acknowledgement, let alone exercise of, that residual discretion. He submits that that residual discretion ought to have been exercised.[21]A lot of time was spent - probably my fault - exploring whether that discretion existed and what its parameters may have been. That, in fact, is an unnecessary avenue to explore because Mr Staker concedes and accepts that there is a residual discretion theoretically to grant leave outside the Rules. So it is that the issue, in relation to this ground for me to decide, is whether this is one of those cases in which the exercise of that discretion should have been considered, in which case, the evident failure to consider it renders the decision of the Secretary of State unlawful or should not have arisen for consideration such that, if the decision was technically valid, it was unimpeachable.[22]Mr Malik submits that a discretion should have been considered in this case. I say considered, not exercised, because of course it is not for me to decide how that discretion should have been exercised. That is a matter purely for the Secretary of State as long as she properly directs herself correctly as to the legal parameters of that discretion and, secondly, in exercising it, she then takes all relevant matters into account, refrains from taking irrelevant matters into account, and otherwise makes a decision that is within the range of what a reasonable decision-maker could decide, even if this court might have exercised the discretion differently. These are matters for the Secretary of State to weigh.[23]Therefore, with respect to Mr Malik's submission, it does not assist him, and it does not assist me, to explore whether or why the discretion should in fact have been exercised and the only relevant issue is should it have been considered. Equally, with respect to Mr Staker, it does not matter whether he persuades me or seeks to persuade me that the discretion should not have been exercised on the facts of this particular case if the issue really is whether it should have been considered because if it should have been considered the decision of the Secretary of State was unlawful, should be quashed, and should be reconsidered by her.[24]Many cases were cited to me in the course of argument relating to this issue. All of those cases are first instance decisions, some by judges of the High Court subsequently elevated to the Court of Appeal, some by judges of the High Court, some by deputy judges of the High Court and, in that latter category, some of those were full-time judges sitting as Deputy High Court Judges, some remained practising lawyers, sitting as part-time judges of the High Court. All are deserving of weight, consideration and respect.[25]What it seems to me they all come down to, in each case, are decisions on their own particular facts and circumstances as indeed was acknowledged by HHJ Waksman QC in Solaja v Secretary of State for Home Department [2013] EWHC 3431, and in particular, in his observations at paragraph 23 of his judgment. It is also right to acknowledge here that he remarked at paragraph 21 that such residual discretion as the Secretary of State has:
"... is not to be considered every time an application is to be made, and that the cases in which it should be considered and exercised are bound to be rare."
Indeed, the decisions referred to me indicate that it is a discretion that is likely to be sparingly exercised. Whether or not it should be considered to be exercisable is matter for the Secretary of State, but Judge Waksman, in coming to his final decision on the facts of that particular case, closed his analysis of the evidence and the arguments by saying:
"... Because there was no attempt to consider the exercise of discretion where I find that there should have been, I will uphold this claim, I will quash the decision and I will remit it to the Secretary of State for reconsideration."
So it seems to me that the issue for me to decide is whether, there having been no attempt to consider the exercise of discretion on the facts of this case, this is a case where there should have been considered the exercise of discretion.[26]In my judgment there should have been the consideration of the exercise of discretion. There are a number of reasons for that conclusion. Firstly, the application for leave to remain was first made in time. Secondly, if it had been promptly and immediately identified by the recipient on or about 14 May that the form was invalid for absence of signature and that had been communicated to the applicant, he could have had the opportunity of re-submission either by personal attendance or, indeed, by post, still in time.[27]In the events that occurred, by failing to identify that simple invalidity or to communicate it, but instead merely acknowledging the receipt of the application, and then in language that could - although in my judgment should not in this case - lead someone to believe that invalidity might be open to correction, the Secretary of State in effect produces a state of affairs in which the applicant is doomed to be making, in due course, whether it is a fresh application or a re-submitted application, an application at a time when he is no longer in time, he is an overstayer and, where different and more onerous criteria would then apply.[28]There was a 39-day delay then in rejecting the application. Although there is room for argument about whether it was sufficiently prompt, there was at least an arguably prompt response by the re-submission of a signed form dispatched a little over two weeks after the rejection is likely to have been received by the applicant.[29]On the facts of this particular case there is no reason to believe that an otherwise valid application made in time would not have been granted by the Secretary of State. That, is my judgment, is also a relevant criteria.[30]So, too, in my judgment are the potential consequences of invalidity outlined by Mr Malik in his skeleton argument to which I have drawn attention.[31]It is also relevant in my judgment that in resubmitting the duly signed application form the claimant applicant also acknowledged his error, apologised for it and expressed remorse, in a witness statement that is also in the hearing bundle.[32]He is not a man with a poor immigration history. He is not a man who, in re-submission, committed other errors that attracted invalidity.[33]All of those are circumstances which, in my judgment, are pregnant with the question of whether it is proportionate to require him to leave the United Kingdom and make a fresh application from abroad, rather than to be granted, exceptionally, leave to remain outside the Rules.[34]These are all circumstances which, if answered adversely to the interests of the claimant, might ask the question asked by Sullivan J, as he then was, in Forrester v Secretary of State for the Home Department [2008] EWHC 2307, paragraph 16, as potentially being a decision so answered that would be:
"... 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."
[35]In all of those circumstances and for all of those reasons, in my judgment, this is a case on its own particular facts taking into account all of the circumstances where there should have been an attempt to consider the exercise of the residual discretion and, therefore, as with the reasoning of Judge Waksman, in the less clear-cut case of Solaja, I will uphold this claim, quash the decision and remit it to the Secretary of State for reconsideration, but solely on that issue and limited ground.