Singh, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 3633 (Admin)

[2015] EWHC 3633 (Admin)Case No CO/5433/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 15 December 2015
Before
PHILIP MOTT QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimant(on the application of TAWINDER SINGH)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Michael Biggs and Niaz Shah (instructed by Mayfair Solicitors) for ClaimantJames Cornwell (instructed by Government Legal Department) for DefendantHearing Hearing dates: 19 November 2015
JudgmentPhilip Mott QC :
[1]The Claimant is an Indian national, born on 6 December 1990. On 25 March 2011 he was given leave to enter the UK as a Tier 4 (General) student, valid until 28 October 2014. On 15 February 2013 the Defendant attempted to curtail his leave, but it is now accepted that this was ineffective, and the details have no relevance to the present proceedings.[2]On 22 October 2014, before the expiry of his current leave, the Claimant made an online application for further leave to remain as a Tier 4 (General) migrant. The instructions required him to provide documents within 15 working days, including his passport. There is a minor dispute between the parties as to whether this period expired on 11 or 12 November 2014, but the distinction makes no difference to the case and it is agreed that I need not decide it.[3]On 30 October 2014 the Defendant wrote to the Claimant pointing out that his passport had not been received and asking him to provide it by 10 November 2014. I shall return to the details of that letter later.[4]The Claimant’s solicitors responded by letter of 5 November 2014 saying that they would forward his passport when they received it from him, and asking the Defendant to exercise her discretion to allow an extension of time to cover the provision of this and other documents.[5]On 15 November 2014 the Claimant attended Hillingdon Registry Office to get married. The ceremony was prevented from taking place by immigration officials and the Claimant was arrested. On the same day his passport was seized, and thereafter remained with the Defendant at all material times. The background to that arrest is not material to the issues before me. It is now accepted that it was not valid, and that the Claimant was unlawfully detained from 15 to 19 November 2014.[6]On 19 November 2014 the Defendant wrote to the Claimant pointing out that he had failed to provide his passport within the specified time, and therefore his application was rejected as invalid. I shall return to the precise terms of this rejection later.[7]The Claimant challenges the legality of this decision, with limited permission granted by Holman J on 2 July 2015. The permission was limited to three grounds, 7(b), 7(c) and a new ground 9, as follows: i) Ground 7(b) claims that “contrary to the assertion in the Defendant’s decision dated 19/11/2014 that the Claimant failed to provide his passport/identity documents therefore the rejection as invalid, the Claimant’s passport was in fact in the Defendant’s possession as from 15/11/2014 when he was detained”. ii) Ground 7(c) alleges that “the Defendant unlawfully, and contrary to her published policy, fettered her discretion and failed to extend time to submit passport and other relevant documents in support of the Claimant’s Tier 4 student application [see Application cover sheet above]”. iii) Ground 9 alleges that the decision of 19 November 2014 was an “eligible decision” within Appendix AR to the Immigration Rules, so that the Claimant was entitled to seek an administrative review of it. The Defendant was required to give written notice of that right and failed to do so. Without that notice the application was not validly determined, and the Claimant’s leave to remain was automatically extended by section 3C(2)(d) of the Immigration Act 1971.

The Law – Validity of Applications

[8]Considerable confusion arose in the pleadings and skeleton arguments about the applicable Rules and Guidance, because of changes brought into effect on 6 November 2014 by paragraphs 8 and 14 of HC693, subject to transitional provisions. The provision of bundles of authorities to me only on the morning of the hearing extended its length and made it more difficult to identify the issues quickly. In the end, however, the position seems to be clear.[9]I start by setting out the “old” and “new” versions of the Rules and Guidance, as far as they are relevant. Old Rules New Rules A34. An application for leave to remain in the United Kingdom under these Rules must be made either by completing the relevant online application process in accordance with paragraph A34(iii) or by using the specified application form in accordance with paragraphs 34A to 34D. … (iii) When the application is made via the relevant online application process: … (c) if the online application process requires supporting documents to be submitted by post then any such documents specified as mandatory must be submitted in the specified manner within 15 working days of submission of the online application; … (iv) Where an application for leave to remain in the United Kingdom is made by completing the relevant online application process, the application will be invalid if it does not comply with the requirements of paragraph A34(iii) and will not be considered. Notice of invalidity will be given in writing and deemed to be received on the date it is given, except where it is sent by post, in which case it will be deemed to be received on the second day after it was posted excluding any day which is not a business day. A34. An application for leave to remain in the United Kingdom under these Rules must be made either by completing the relevant online application process in accordance with paragraph A34(iii) or by using the specified application form in accordance with paragraphs 34A to 34D. … (iii) When the application is made via the relevant online application process: … (c) if the online application process requires supporting documents to be submitted by post then any such documents specified as mandatory must be submitted in the specified manner within 15 working days of submission of the online application; … 34C. Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered. Notice of invalidity will be given in writing and deemed to be received on the date it is given, except where it is sent by post, in which case it will be deemed to be received on the second day after it was posted excluding any day which is not a business day. 34C. Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, or where an application for leave to remain in the United Kingdom is made by completing the relevant online application process, and does not comply with the requirements of paragraph A34(iii), the following provisions apply:(a) Subject to sub-paragraph (b), the application will be invalid if it does not comply with the relevant requirements of A34(iii) or 34A, as applicable, and will not be considered. Notice of invalidity will be given in writing and deemed to be received on the date it is given, except where it is sent by post, in which case it will be deemed to be received on the second day after it was posted excluding any day which is not a business day, unless the contrary is proved.(b) The decision maker may contact the applicant or their representative in writing and give the applicant a single opportunity to correct any omission or error which renders the application invalid. The amended application and/or any requested documents must be received at the address specified in the request within 10 business days of the date on which the request was sent. Old Guidance New Guidance You must carry out a validation check when the application is sent from the document centre. You must check the:• mandatory documents were submitted within 15 working [sc. days] of the application being submitted: ◦ if they have not, the application must be rejected as invalid … If any of the above requirements are not met, you must reject the application as invalid. You must carry out the following validation check when the application is sent from the document centre. You must check the:• mandatory documents were submitted within 15 working [sc. days] of the application being submitted: ◦ if they have not, you must contact the applicant, in writing, to give the applicant a single opportunity to correct any omission or error they have made which could make their application invalid giving them 10 business days to respond to your request … If any of the above requirements are not met and the applicant has not responded to your request to correct any omission or error they have made, you must reject the application as invalid.[10]The Claimant submits that the new Rules and Guidance are applicable, and therefore the decision maker “may” (Rule 34C) or “must” (Guidance) contact the applicant to give 10 business days to correct the error. He also submits that the 10 business days must be in addition to the full 15 working days initially allowed. The Defendant submits that the old Rules and Guidance apply, so that the application had to be rejected once the Claimant had failed to provide his passport by at latest 12 November 2014.[11]The resolution of this dispute depends on the proper interpretation of the transitional provisions in HC693. These provide that the relevant paragraphs: “shall take effect from 6 November 2014, save that if an application has been made for entry clearance or leave to enter or remain before 6 November 2014, the application will be decided in accordance with the Rules in force on 5 November 2014”.[12]It is common ground that the Guidance changes go hand in hand with the Rules changes.[13]Mr Biggs, for the Claimant, submits that “application” in the transitional provisions means “valid application”. He relies on the authority of R (Iqbal) v SSHD [2015] EWCA Civ 838, which held that “application” in section 3C of the Immigration Act 1971 means “valid application” for the purpose of the statutory extension of leave to remain during the application process. Therefore an application made before 6 November 2014 which is rejected as invalid on or after that date can only be lawfully rejected if the additional notice provisions have been complied with, since the transitional provisions do not apply to applications not yet valid. If the additional notice leads to the documents being provided and the application validated, it would then be determined on its merits under the old Rules and Guidance by virtue of the transitional provisions.[14]Mr Cornwell, for the Defendant, submits that this produces nonsensical circularity, and that “application” in the transitional provisions should be interpreted in the same way as “application” in the Rules, to include applications which are later rejected as invalid. He submits that Iqbal is dealing with a different point of the statutory extension of leave to remain. He relies on the decision in R (Okurut) v SSHD [2014] EWHC 258 (Admin) which also related to the date of a change in the Rules and the submission of an online application.[15]I agree with Mr Cornwell. Rules A34 and 34C refer to an “application”, although they deal with the circumstances in which it may be rejected as invalid. There is no reason to interpret “application” in the transitional provisions in any different way.[16]Rule 34G, unchanged by HC693, defines the date of making an application via the online process as the date on which the online application is submitted. Since online applications have to be followed up by the postal provision of mandatory documents, it follows that no online application is valid at the point of submission, but is only validated later by the provision of the required documents within 15 working days.[17]If Mr Biggs were right, an application submitted before 6 November 2014, which would have been rejected under the old Rules, could be treated as valid under the new Rules, yet thereafter the merits would have to be decided under the old Rules because of the transitional provisions.[18]I therefore conclude that the old Rules and Guidance applied to the Claimant’s application on 22 October 2014.[19]I now turn to deal with the grounds on which permission has been granted.

Grounds 7(b) and (c)

(b) and (c)

[20]The decision letter of 19 November 2014 states (insofar as relevant) as follows:
“On 22 October 2014 you submitted an online application for leave to remain in the United Kingdom as a Tier 4 Student. As stated in that application your application is not valid unless and until you have undertaken all the required steps, which include providing the required documents within the time specified by the Secretary of State. You have not provided the required documents listed below: Evidence of identity – Passport/travel document … As you have not provided the required documents within the specified time your application is rejected as invalid.”

Evidence of identity – Passport/travel document …

[21]Mr Biggs submitted that this decision involves two separate assertions; firstly that the passport has not at any time been provided, and secondly that it was not provided within the specified time.[22]I reject this submission. Taken as a whole it is clear that the failure relied upon is to provide the passport within the time specified, i.e. by at latest 12 November 2014. That the Claimant had unarguably failed to do. The fact that shortly after the expiry of the time specified the passport had come into the possession of the Defendant is not relevant to that failure.[23]The importance of the time limit is that only an in-time application allows the applicant to remain in the UK pending the decision. After the expiry of his existing leave an application can still be made, but only from out of the country. Without a time limit for the production of documents, a “rudimentary application” could be made merely to trigger the statutory extension of leave under section 3C of the 1971 Act, without at that time the applicant having the documents required to pursue that application (see Iqbal paragraph [24]).[24]Taken strictly, therefore, Ground 7(b) fails. However, the arguments under this head widened in the skeletons submitted on either side, and to some extent merged with those under Ground 7(c). I shall consider them.[25]Mr Biggs submitted that the Defendant’s possession of the Claimant’s passport at the time of the decision letter was a material fact which should have been considered by the decision maker, and that failure to do so was a public law error. He did so for three reasons, as set out in his skeleton argument: i) The Immigration Rules confer discretion on the Defendant to permit defects in the validity of an application to be cured by affording the applicant a further 10 business days to provide mandatory documents. Mr Biggs relied on the new paragraph 34C(b) of the Immigration Rules in support of this submission. ii) The Defendant retains a discretion to act outside the Immigration Rules in appropriate cases. This is not in dispute. The question is whether there was anything in this case to trigger a consideration of the exercise of that discretion. iii) The Defendant’s new Guidance requires officials to contact the applicant in respect of missing documents and to give him a single opportunity to correct the error. Application of this Guidance would have afforded the Claimant a further 10 working days to provide his passport, in addition to the basic 15 days. This extension would have covered the period up to and after the seizure of the Claimant’s passport on 15 November 2014.[26]As to the first and third of these reasons, I have already concluded that the old Rules and Guidance applied to this application. The old paragraph 34C did not apply to online applications, nor did it include any provision for affording extra time to an applicant to remedy errors or omissions. The discretion to permit a further 10 business days to provide mandatory documents (even if this is the correct interpretation of the new Rules, which is disputed) did not exist expressly in relation to the Claimant’s application. The old Guidance also said nothing about allowing an applicant any extra time.[27]Accordingly there is nothing in these two points. The decision to reject the application for failure to provide the passport in time was fully in accordance with the Rules and Guidance applicable to this application.[28]Although not necessary to my decision, I doubt whether Mr Biggs’ interpretation of the new Rules and Guidance is correct. There is nothing in either, as I read them, to require the single opportunity to correct an error to be given only after the expiry of the original 15 working days, or to require the 10 business days to be in addition to the original 15 working days, instead of from the date of the letter giving the single opportunity to correct the error, as the new Rules specifically state.[29]In fact the Claimant was prompted in relation to his failure to provide his passport. The letter of 30 October 2014 gave the Claimant 10 days, not 10 business days, to remedy the omission of his passport. It started that time running from the date of the letter, so expiring on 10 November 2014. Even if that does not comply with the new Rules or Guidance, which I doubt for reasons explained above, it is more than was required by the old Rules and Guidance applicable to this application.[30]Mr Biggs then relied on the notes to the application cover sheet as disclosing a policy, or at least an expectation of a policy, to allow further time. The cover sheet, under the heading “Next steps for your application” tells the applicant to collate his supporting documents and post them with the cover sheet within 15 working days. An address and other details are then given. The next section is headed “What happens next?” and says “We will write to you if any of the required supporting documents are missing or unsuitable”. Nothing is said about when they will write. Nothing is said about any extension of time to produce the documents, or how long any such extension might be.[31]Mr Biggs submits that this written notice is only to be sent out after the expiry of the 15 working days. I disagree. The sections are not necessarily sequential. They set out what the applicant has to do and what the Defendant will do. There is nothing to suggest that any additional time will be granted, and this would be contrary to what was set out in the Rules at the time. I therefore reject the suggestion that a different policy can be inferred from this cover sheet, or that it gives rise to any legitimate expectation (which was not specifically suggested by Mr Biggs).[32]It is not in dispute that the Defendant retains a discretion to act outside the Immigration Rules in exceptional cases. The existence of clear Rules and Guidance is not a fetter on that discretion. As Mitting J said in R (Fu) v SSHD [2010] EWHC 2922 (Admin), at paragraph [19]:
“The rule provided that the application had to be treated as invalid. This is a tick box system intended to be operated on a mass scale by junior civil servants. To require them to exercise discretion because of a failure by an applicant to fulfil clear mandatory requirements of the rules would be to undermine the basis upon which the system works. It would tend to produce even more argument about individual circumstances than do the clear tick box rules.”
[33]In the present case there is absolutely nothing to raise the need to consider this residual discretion. The Claimant’s solicitors had asked for more time, but gave no explanation as to why it was needed. The request in their letter for a further 4 to 6 weeks to provide the CAS statement, educational documents and relevant bank statements raises the suspicion that this was merely a “rudimentary application” made prematurely in order to extend the Claimant’s leave to remain.[34]In such circumstances I see no reason for the decision letter to set out as a mantra that the exercise of residual discretion has been considered and rejected, let alone to set out detailed reasons for that rejection. In any event, any specific consideration of residual discretion in the present would inevitably have led to the decision that there was no reason to exercise it in the Claimant’s favour.[35]Accordingly I reject the Claimant’s Grounds 7(b) and (c).

Ground 9

[36]HC693 brought in a new system of Administrative Review as from 20 October 2014. There is no dispute that it applied at the time of this Claimant’s application.[37]The relevant parts of the new Rules are as follows: “AR2.1 Administrative review is the review of an eligible decision to decide whether the decision is wrong due to a case working error. … AR3.2(a) An eligible decision is a refusal of an application made on or after 20 October 2014 for: (i) leave to remain as a Tier 4 Migrant under the Points Based System …(b) An eligible decision is also a decision to grant leave to remain in relation to an application referred to in sub-paragraph (a) where a review is requested of the period of leave granted. AR3.3 Any decision not listed in AR3.2 is not an eligible decision and administrative review is not available in respect of that decision.” (i) leave to remain as a Tier 4 Migrant under the Points Based System … (b) An eligible decision is also a decision to grant leave to remain in relation to an application referred to in sub-paragraph (a) where a review is requested of the period of leave granted.[38]AR3.4 contains an exhaustive list of case working errors. Nowhere is there mention of the rejection of an application as invalid. All the errors involve decisions on the merits of an application.[39]It is also relevant that the provisions for administrative review take the place of appeals against immigration decisions under section 82 of the Nationality, Immigration and Asylum Act 2002. Such immigration decisions did not include the rejection of applications as invalid.[40]It is clear to me that a decision rejecting an application as invalid is not an eligible decision under the new Rules. Those are limited to decisions on the merits, either to refuse leave or to grant it for a limited period.[41]Accordingly I reject the Claimant’s Ground 9.

Conclusion

[42]It follows that the Claimant’s application for judicial review is dismissed. I will decide any costs applications on written submissions, if they cannot be agreed between the parties.