Bhgat, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 772 (Admin)

Case No CO/13003/2012[2014] EWHC 772 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 4 March 2014
Strand
London WC2A 2LL
B e f o r e:
CLARE MOULDER
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF BHGATClaimantv
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 (instructed by Farani Javid Taylor) for ClaimantMr Jack Holborn (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N TTHE DEPUTY JUDGE:
[1]This is the hearing of an application for judicial review of the decision of the Secretary of State for the Home Department dated 4 September 2012, which rejected as invalid the claimant's application for a grant of leave to remain in the United Kingdom as a Tier 1 (post-study work) migrant. The claim for judicial review was lodged on 4 December 2012 and permission was granted on the papers by His Honour Judge Stephen Davies sitting as a judge of the High Court on 11 February 2013.[2]The chronology is as follows:[3]The claimant is a national of Pakistan whose date of birth is 7 March 1989. He was granted leave to enter the United Kingdom as a Tier 4 (general) student until 30 June 2011.[4]On 12 May 2011 he made an application to remain as a Tier 4 student, which was refused on 27 July 2011. This was subsequently overturned on appeal on 23 September 2011.[5]On 17 November 2011 he made an application for leave to remain as a Tier 1 (post-study work) migrant, relying on an ACCA accountancy qualification. This was refused on 9 March 2012 on the basis that that accountancy qualification was not an eligible qualification. The claimant then appealed that decision.[6]On 3 April 2012 the claimant submitted an application for leave to remain as a Tier 1 (post-study work) migrant, relying on a qualification from Oxford Brookes University.[7]The tier 1 post-study work regime closed on 6 April 2012 and no further application to the post-study work visas were accepted from this date.[8]On 24 May 2012 the claimant's appeal against the first post-study work visa decision was dismissed.[9]On 4 September 2012 the defendant refused to accept the second post-study work visa application stating that, as the claimant had an outstanding appeal, section 3C of the Immigration Act 1971 prevents an applicant from making a fresh application whilst an appeal is outstanding or whilst an appeal could be brought.[10]There were two original grounds in the judicial review claim.[11]Ground 1 was that there was a flawed interpretation by the Secretary of State of section 3C of the Immigration Act 1971. The claimant submitted that section 3C of the 1971 Act does not place a bar on fresh applications whilst an application is being considered by the Secretary of State. He submitted that the Act simply refers to variations of applications being already considered. The claimant submitted that he was free to lodge a fresh application and the defendant erred in her interpretation of the relevant section.[12]The original ground 2 in the judicial review claim was based on unnecessary delay and breach of common law duties but before me this morning there was an application to amend the grounds and the original ground 2 was in effect not argued.[13]In his skeleton submitted on 28 February 2014, Mr Malik for the claimant sought to introduce two additional arguments under ground 1 and recast ground 2. Mr Malik apologised for the lateness of his skeleton and the introduction of the additional grounds at such a late stage. Having heard counsel for the claimant and the defendant, my decision was to allow the hearing to proceed on the basis of the grounds as set out in Mr Malik's skeleton. It seemed to me that the new submissions in relation to ground 1 were based on the interpretation of section 3 of the Immigration Act and in relation to ground 2 the concept of fairness and as such introduced no significant new material which fell to be considered at this late stage. Although Mr Holborn did express his opposition to the amendment, he had been able to deal with them in his skeleton argument and did not seek an adjournment. Accordingly, in my view, having regard to the overriding objective, it was just and proportionate that the claimant was allowed to amend his grounds although I did deplore the lateness of the raising of the additional grounds.[14]The relevant provisions of section 3C of the Immigration Act 1971 so far as material to this case are as follows:
"Section 3C. Continuation of leave pending variation decision. (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. (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 1992 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) "

[15]Turning then to ground 1 and the claimant's submissions, dealing with the first point advanced by Mr Malik. Mr Malik submitted that the phrase "an application for variation of his leave" in section 3C(4) has to be read in the context of sections 3, 3a and 3b of the Act. He submitted that section 3(1)(b) provides that a person may be given leave to enter the United Kingdom, or when already there leave to remain in the United Kingdom, either for a limited or for an indefinite period and section 3(1)(3)(a) provides that a person's leave may be varied by restricting, enlarging or removing the limit on its duration.[16]Mr Malik argued that there is a clear statutory distinction between “giving leave to remain” and “varying leave to remain” and that section 3C(4) only prohibits an application for variation of leave. He therefore argued that a person may not make an application to vary his leave extended under section 3C but that he may make an application asking the Secretary of State to give him fresh leave. He acknowledged that the scheme of section 3C(4) is to prevent an abuse of the system by a series of further applications leading to an indefinite extension of the original leave, but argues that the scheme remains fully enacted where a person making an application asks the Secretary of State to give him fresh leave because making such an application will not result in an automatic extension of leave. Mr Malik submitted that only an application for variation would extend leave.[17]Mr Malik also sought to draw a distinction in the terms used in section 3a and 3b of the Act. In 3a it refers to "giving, refusing or varying leave" and Mr Malik submitted that the use of the different words means that they must have a different meaning and similarly in section 3b the words used are "giving, refusing or varying".[18]In response to this first submission, Mr Holborn for the defendant submits that there is no such thing as a fresh application. Either you are given leave to enter or remain or, having been given leave, that leave is varied. Mr Holborn submitted that section 3C bites when an application for leave to remain is made whilst an individual is lawfully in the UK by virtue of leave to enter or remain but that existing leave expires before the application is finally determined by the Secretary of State. Such an application, he submits, is an application for variation of leave as the effect of any successful application will be to extend the period an individual can lawfully remain in the UK and/or will change the conditions of their leave. Whilst an individual has leave to remain he submits that an application for additional leave will always be a variation. It could not be described as a fresh application.[19]At the time the claimant made his second PSW visa application in April 2012 he had leave to remain by virtue of section 3C of the Act. Mr Holborn submits that any application he made for further leave to remain was therefore an application for variation of leave and that it is this type of application that is prohibited by section 3C(4). The second PSW visa application was, he submitted, a second application for leave to remain. The defence case is that the rationale for the rule in section 3C(4) is that there can only be one grant of leave to remain at any time and that you cannot have a position where there are multiple grants of leave to remain.[20]The defendant submits that a fresh application would only be in circumstances where the applicant had no leave to remain at the date of the application. Leave would not be extended by section 3C and so section 3C(4) would not apply.[21]In my view, counsel for the defendant correctly interprets the meaning and purpose of section 3C(4). I see no difficulty in interpreting section 3 of the Immigration Act 1971 and the terms "giving, refusing or varying leave" and whilst accepting the submission of Mr Malik that these words have a different meaning, in my view, once an applicant has been granted leave to remain, any application which he makes during the currency of that leave is an application to vary that leave. The effect of section 3C is that a person can make an application for variation of his leave before his leave expires and, if he does so, his leave will be extended until his application has been determined. However, he can make no further application to vary his leave to enter or remain until that happens. The purpose of 3C is to prevent abuse of the system by the making of successive applications and, more importantly, to ensure that there is only one application to vary leave at any one time.[22]The second submission advanced by Mr Malik under ground 1 is that the claimant's leave, which was extended under section 3C, ended on 7 June 2012 after the dismissal of the appeal. Mr Malik submitted that section 3C(4) only prohibits an application whilst a person's leave is extended and therefore as of 7 June 2012 the claimant had a valid application. Accordingly, he submitted that when the Secretary of State considered the application on 4 September 2012 there was no outstanding appeal and therefore the Secretary of State should not have rejected the claimant's application as invalid under section 3C(4).[23]Mr Malik took the court to the Secretary of State's decision letter of 4 September 2012 at 177 of the bundle, which appears to suggest in its final paragraph that the appeal was still outstanding. However,the apparent error does not in my view affect the validity of the decision as regards the application of section 3C.[24]Mr Holborn's response to this second submission under ground 1 is that the date of an application is defined under rule 34G of the Immigration Rules, which states that: “for the purposes of these rules the date on which an application or claim or a variation in accordance with paragraph 34E is made is as follows: "(i)Where the application form is sent by post, the date ofposting." "(i)Where the application form is sent by post, the date ofposting."[25]The date of the application was, therefore, the date it was posted, 3 April 2012. Further, Mr Holborn submitted that even if the application could become valid either at 7 June or at 4 September, the PSW visa scheme had closed.[26]It seems to me that the natural meaning of the words in subsection (4) "a person may not make an application" [emphasis added] looks to the date on which the application is submitted and not to the date on which it is considered or any intervening date during the period between submission and consideration. If a person's leave is extended by virtue of section 3C at the time a person purports to make an application, such an application is prohibited by subsection 4. There is no basis, in my view, for an interpretation that a purported application prohibited by subsection 4 can effectively be revived or that such an application can be deemed to be made at a subsequent date. If Parliament had intended the provision merely to operate to suspend an application made whilst an appeal was pending until such time as an appeal was concluded, to my mind very different language would have been used and in my view there is no basis for such a construction.[27]The third submission under ground 1 by Mr Malik is that the claimant's original leave expired on 30 June 2011 when his application of 12 May 2011 was pending. Accordingly, his leave was extended under 3C(2)(a) from 30 June 2011 to the date of refusal, which was 27 July 2011. From 27 July to 9 August, when he lodged his appeal, his leave was extended under section 3C(2)(b) as during that period an appeal could be brought and from 9 August to 23 September, when the Tribunal allowed his appeal, his leave was extended under 3C(2)(c) as during that period an appeal was pending.[28]Mr Malik submits that the claimant's leave under section 3C ended as soon as his appeal was finally determined. Mr Malik submits that the Tribunal has no power under the Nationality, Immigration and Asylum Act 2002 to quash a decision made by the Secretary of State and a decision of the Tribunal allowing an appeal and giving a direction to the Secretary of State, he contends does not extend a person's leave under section 3C. Accordingly, he argues that the claimant was not on leave extended under section 3C when he made his application in April 2012.[29]Mr Malik relied on section 104 of the Nationality, Immigration and Asylum Act 2002 and the definition of a “pending appeal”, noting that subsection 1(b) states that the appeal ends when it is finally determined. He noted that the appeal was brought under section 82 and that under section 86 there was no power for the Tribunal to quash the decision of the Secretary of State. Under section 87 the Tribunal may give directions to the Secretary of State and under the Further Immigration (Continuation of Leave) (Notices) Regulations 2006 an application is decided when notice of the decision is given.[30]Mr Holborn in reply submits that although the Tribunal's decision meant that leave under section 3(2)(c) ended, leave then continued under section 3C(2)(a) as the application was then pending prior to the Secretary of State finally granting leave. He submitted that the mechanism for enforcing Tribunal decisions is a direction under section 87 of the Nationality, Immigration and Asylum Act and, until a decision is made, the application remains to be determined and leave continues pursuant to subsection (2)(a). He noted that under section 87(2) a person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).[31]I have some difficulty with Mr Malik’s argument which seems to lead to the inference that a person who has been successful in his appeal will become an overstayer in the period from the successful determination of his appeal until such time as the Secretary of State acts on the direction of the Tribunal. This would seem to me to be contrary to the purpose of section 3C, which is to extend a person's leave pending a decision. Accordingly, in my view, section 3C and in particular subsection (2)(a) that “leave is extended during any period when the application for variation is neither decided nor withdrawn” must be interpreted to mean a final decision and where the Secretary of State is obliged to act on a direction from the Tribunal it seems to me that during such period of awaiting implementation the application is not finally decided.[32]There was some doubt expressed in oral submissions as to whether if Mr Malik were assumed to be correct, the application would then have fallen to be refused on the grounds that the claimant in these circumstances would have been an overstayer but in the circumstances I do not find it necessary to decide that point.[33]Turning to ground 2, as I have indicated, the original grounds were not argued before me. In relation to the amended ground, Mr Malik submitted that it was unfair and irrational for the Secretary of State to reject the claimant's application on the facts of this case. He submitted that the Secretary of State has a wide residual discretion and is entitled to accept and determine an invalid application. He relied on the decision of the Upper Tribunal in Kishver, at 327 in the bundle, where the Secretary of State had treated an invalid application as a valid application and then sought to withdraw it.[34]At paragraph 7 the Tribunal said:
"Although a right of appeal exists only if there was a valid application, what the Secretary of State has done at various stages in this litigation is to treat the application as a valid application.....That was itself a valid executive decision by the Secretary of State and we think it would be entirely inappropriate for that decision now to be reversed."
[35]Mr Malik also relied on the decision of Sullivan J in Forrester at 307 in the bundle where the application was rejected by the Secretary of State because the claimant had failed to pay the fee. At paragraph 7 of the judgment Sullivan J stated: "In terms of the rules it can fairly be said that the decision was impeccable.The defendant is given a discretion and she is given a discretion on the basis that it will be exercised with a modicum of intelligence, common sense and humanity. It might be asked in these circumstances what possible reason there could have been for not exercising the discretion in this claimant's favour.”[36]Mr Malik submitted that the Secretary of State in this case decided to hold on to the claimant's application until the Tier 1 post-study work category was abolished and the Tribunal promulgated its decision, dismissing the appeal. He stated that the Secretary of State had provided no explanation for the long delay in rejecting the application and that the claimant acted entirely reasonably in making a fresh application to the Secretary of State with a graduate qualification from Oxford Brookes. Mr Malik therefore submitted that the Secretary of State's decision is an example of the "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." Further Mr Malik pointed out that in the decision letter the Secretary of State did not appear to know the status of the appeal.[37]For the defence, Mr Holborn submitted that the Secretary of State did not fail to exercise discretion. She rejected an application that pursuant to section 3C(4) could not be made. There was a statutory bar to the application and the Secretary of State could not be required to consider the application. Mr Holborn submitted that this is a very different situation from the facts of Forrester where in that case the application merely lacked a cheque. In this case, he submitted, it would go against the purpose of the statutory provision that there should only ever be one application for leave to remain. Counsel accepted that the Secretary of State did retain a general discretion to grant leave. However, he submitted that such a grant would be contrary to the change in the Immigration Rules to close the PSW visa scheme post 6 April 2012.[38]In my view, the defence submissions are correct and the Secretary of State was bound by the statutory provisions and had no discretion to treat the application as valid. The statutory provisions in 3C are meant to give protection to applicants who have leave whilst their applications are considered but this does not extend to permitting the Secretary of State to consider multiple applications for leave. Even if I am wrong on this and the Secretary of State retained a residual discretion to treat as valid an invalid application, I see no basis for finding that the decision was unreasonable or inflexible, even though I acknowledge that the writer of the decision letter appeared unaware of the outcome of the appeal.[39]The claimant's application relying on his qualification from Oxford Brookes was submitted only a few days before the scheme was closed and therefore was unlikely to have been considered before the deadline. There is no evidence before me to support the assertion that the Secretary of State decided to hold on to the claimant's application until the category was abolished. Even had it been considered immediately, it would still have fallen foul of section 3C.[40]I have some sympathy with the claimant who could in fact, it appears, meet the requirements of the scheme. But it was the fact of his outstanding appeal, which for whatever reason he chose to pursue, which meant that he was unable to submit a valid application in April 2012. For the reasons set out above, the application for judicial review is dismissed.