Binaura, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1578 (Admin)

Case No CO/2848/2015[2016] EWHC 1578 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 July 2016
Before
NICHOLAS PADFIELD QC(Sitting as a Deputy High Court Judge)
Between
THE QUEENClaimanton the application ofClaimantPUNAM NARESH BINAURAClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Rajiv Sharma (instructed by Messrs H&M Solicitors) for ClaimantZane Malik (instructed by Government Legal Department) for DefendantHearing Hearing date: 7 June 2016
JudgmentMr Nicholas Padfield QC:Background
[1]The Claimant is a citizen of India and was born on 15th July 1983.[2]The Claimant arrived in the United Kingdom on 18th June 2009, with an entry clearance as spouse of her husband, a Tier 4 (General) Student, valid until 28th February 2010. Her leave, as her husband’s dependent spouse, was subsequently successively extended until 24th November 2013.[3]The Claimant made an application within time for further leave to remain on 20th November 2014 as her husband’s dependent spouse. The Secretary of State refused that application on 27th January 2014, with a right of appeal.[4]The Claimant lodged an appeal against that decision on 10th February 2014. By virtue of section 3C of the Immigration Act 1971 her leave was continued.[5]The appeal was, however, withdrawn on 30th April 2014. As a result, the continuation of her leave ceased under section 3C of the 1971 Act.[6]The Claimant made a fresh application out of time, but within 28 days of the cessation of her leave on 30th April 2014, for leave to remain as her husband’s dependent spouse on 20th May 2014.[7]The Secretary of State refused the application on 5th August 2014, with no right of appeal.[8]The Claimant made a further application out of time by 183 days for leave to remain as her husband’s dependent spouse on 5th February 2015.[9]The Secretary of State refused the application on 3rd March 2015 with no right of appeal, under Paragraph 319 C (j) of the Immigration Rules on the ground that the Claimant had overstayed for more than 28 days in the UK when she made her application.[10]On 17th March 2015 the Claimant requested an Administrative Review of the Secretary of State’s decision of 3rd March 2015. The result of the Administrative Review was that the Secretary of State upheld her decision on 24th March 2015.[11]The Claimant issued her Judicial Review claim on 17th June 2015, within 3 months of the Secretary of State’s Administrative Review decision on 24th March 2015.[12]On 15th October 2015 Sir Stephen Silber granted the Claimant permission to apply for Judicial Review, after hearing oral submissions, on the non-specific ground that the threshold of arguability was low.

The Claimant’s Judicial Review Challenge

[13]The Claimant challenges the Secretary of State’s decision of 3rd March 2015 on the basis that she was refused leave to remain solely because she was an overstayer in breach of the immigration laws, and made her application outside the mandatory period of 28 days imposed by Paragraph 319 C (j) of the Immigration Rules.

Paragraph 319 C: Requirements for entry clearance or leave to remain

[14]Paragraph 319 C of the Immigration Rules was a new Rule which the Secretary of State stated on the UKBA website would be implemented on 1st October 2012 under the heading “Changes to applications from overstayers from 1st October 2012”:
“In June 2012 we announced that from 1st October 2012 applications for further leave will be refused if you have overstayed your leave by more than 28 days at the point you made your application……”
[15]Paragraph 319 C states:
“To qualify for entry clearance or leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance or leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Requirements … (j) The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days will be disregarded.”
Requirements

The Grounds of Challenge

[16]The grounds of challenge to the Secretary of State’s decision are four: i) The Secretary of State should have exercised her discretion under paragraph 319 C (j) of the Immigration Rules (“the Rule”) to allow the Claimant’s application for leave to remain as the spouse of a relevant points based system migrant, despite her failure to meet the mandatory requirements of the Rule by being an overstayer in breach of immigration laws for more than 28 days. ii) The Secretary of State failed to follow her published policy by refusing the Claimant’s application. iii) The refusal of the Claimant’s application was unfair. iv) The Rule is incompatible with Article 8 and the Claimant’s Article 4 rights. I deal with each ground in turn. Ground 1: the Secretary of State should have exercised her residual discretion under the Rule in the Claimant’s favour.[17]Ground 1 begs the question, since it assumes that the Secretary of State has a discretion to exercise in the application of the Rule. That is a false assumption since Rule 319 C (j) is mandatory. The Claimant must meet the listed requirements in (j). If she does not meet these requirements, her application will be refused. It is accepted that the applicant was in breach of immigration laws, as an overstayer in the UK for a period in excess of the 28 days allowed (in fact she had been an overstayer for 183 days when she made her application), so that she could not meet the mandatory requirements listed in (j) of the Rule.[18]The Secretary of State had no discretion under the Rule to relax the mandatory requirements which it imposed. She was bound by the Rule and consequently was under a duty to apply the Rule and to refuse the Claimant leave to remain.[19]Mr. Sharma for the Claimant sought valiantly to argue that mandatory rules such as Rule 319 C (j) were unlawful, because they fettered the Secretary of State’s power to consider individual cases on their merits.[20]As I understood Mr. Sharma’s argument, his attack on the Rule as being “unfair” was put on the same basis, namely, that the automatic application of the Rule precluded any consideration of the Claimant’s individual circumstances and was therefore “unfair” to her. In particular, there had been no consideration by the Secretary of State of the Claimant’s “application, appeal and litigation history”, in Mr. Sharma’s words.[21]Put at its highest, and somewhat contradictorily, Mr. Sharma’s submission appears to be that even a mandatory rule did not exclude the discretion of the decision maker to relax it in the particular circumstances of the case. The Secretary of State’s failure to exercise her discretion under the Rules made her decision unlawful as a matter of public law.[22]Mr. Sharma faces an uphill struggle in view of the weight of authority against his submission. First, in Reg. (Sayaniya) v Upper Tribunal [2016] EWCA Civ.85 the Court of Appeal held that the Immigration Rules, although susceptible to challenge on the basis of error of law, Wednesbury unreasonableness, irrationality and proportionality, are not statements of policy subject to all the public law constraints on policies and discretionary powers, including the non-fettering principle, since they are expressly contemplated by sections 1(4) and 3(2) of the Immigration Act 1971. “Although not in express words, the power to make ‘rules… as to the practice to be followed in the administration of this Act’ has to be construed as conferring the power on the Secretary of State. Section 1(4) of the 1971 Act provides that “the rules laid down by the Secretary of State” as to practice to be followed for regulating the entry into and stay in the United Kingdom of those do not have the right of abode “shall” include provision for admitting such persons coming for the purpose of taking employment, study, as visitors, or as dependents of persons lawfully in or entering the United Kingdom. By section 3(2) of the 1971 Act, it is the Secretary of State who is required to lay statements of the rules and of any changes in them before Parliament. Such rules are subjected to a negative resolution procedure that is similar to the Parliamentary control over many statutory instruments.”: para. 22 of the Sayaniya case.[23]In R(Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants intervening) [2012] UK SC the issue was whether and when a policy statement was required, pursuant to section 3(2) of the 1971 Act, to be laid before Parliament. The Supreme Court held that policies setting out criteria which are or may be determinative of an application for leave to enter or remain must be in immigration rules laid before Parliament. An example is Rule 319 C (j) in the present case.[24]There is no suggestion in Alvi’s case or in any of the other cases in the House of Lords or the Supreme Court that an Immigration Rule which is in mandatory terms is, for that reason alone, ultra vires: see the Sayaniya case at para.24.[25]In R (Fu) v Secretary of State for the Home Department [2010] EWHC 292 (Admin) Mitting J expressed the position succinctly in relation to a different Rule, Rule 34. “[20] Parliament has approved the manner in which the Secretary of State should exercise her ultimate discretion to grant or refuse leave to enter and remain in the United Kingdom by approving the Immigration Rules. Those rules clearly provide for a tick box scheme. In those circumstances it is only to be expected that the rules will be applied in the ordinary case automatically without the exercise of careful discretion based on individual facts. … [22] … All that happened is that the Secretary of State’s officials have performed the duty imposed upon them by rules approved by Parliament, and rejected a non-compliant application. To hold on those facts that there were not entitled to do that would, in my judgment, significantly undermine what is intended to be a simple scheme leaving little room for the exercise of discretion when mandatory requirements are not fulfilled.”[26]None of the decisions relied on by Mr. Sharma in support of the non-fettering principle are in relation to a statute which expressly permits rules to be made, such as the 1971 Act. The decisions which he relied on were British Oxygen Co. v Board of Trade [1971] AC 610, Attorney General ex rel. Tilley v Wandsworth LBC [1981] 1 WLR 854, R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, and Secretary of State for the Home Department v R(S) [2007]EWCA Civ. 546.[27]Secondly, although the Rule is in mandatory terms, the Secretary of State may depart from it by the grant of discretionary leave to remain “outside the Rules”, notwithstanding that the Rule provides that leave should not be given. To the extent that the non-fettering principle applies to immigration rules, a rule expressed in mandatory terms does not contravene the principle because, in the context in which the rule operates, the Secretary of State has a residual discretion outside the Rules which she frequently exercises in favour of applicants, who would not otherwise qualify under the Rules: see the Sayaniya case at paras. 36-41.[28]In Aafia Thebo [2013] EWHC 146 (Admin) Mostyn J stated at para 30:
“A policy which has the safety net of a residual discretion cannot be described as a policy which binds the decision-maker to refuse to listen provided that the residual discretion is meaningful and not just an empty gesture”
. He was satisfied that the residual discretion was a genuine discretion which was actively used by the Secretary of State.[29]Accordingly, Rule 319 C (j) does not conflict with the non-fettering principle because it falls outside it. In the present case the decision letter of refusal dated 3rd March 2015, although it does not expressly refer to the Secretary of State’s discretionary power to consider her case outside the Rules in those terms, nevertheless under the heading Option to make new application states that if she wishes to apply for leave to remain in another capacity, she must do so on the appropriate application form with the appropriate fee.[30]I note that there was no application by the Claimant to invoke the residual discretion of the Secretary of State outside the Rules after her application for an administrative review was unsuccessful. Ground 2: the Secretary of State did not give effect to her own published policy when she refused the Claimant’s application for leave to remain.[31]The Policy Guidance in relation to dependents states as follows: “Applications for leave to remain under the Points Based System will fall for refusal if you have overstayed for more than 28 days on the date of application, unless there were exceptional circumstances which prevented you from applying within the 28 day period. The 28 day period of overstaying is calculated from the latest of: … the end of any extension of leave under sections 3C or 3D of the Immigration Act 1971 … If there are exceptional circumstances which prevented you from applying in time you must submit evidence of the exceptional circumstances with your application. The threshold for what constitutes “exceptional circumstances” is high and will depend on the individual circumstances of the case, but for example may include delays resulting from unexpected or unforeseeable circumstances….”.[32]The Guidance is clear and expressed in mandatory terms. If the Claimant seeks to avoid the automatic refusal of an application for leave to remain made as an overstayer after the 28 day period has elapsed, the Claimant must submit evidence of the exceptional circumstances which prevented her from applying within the 28 days period imposed by Rule 319 C (j) of the Immigration Rules.[33]It is a mandatory requirement for the applicant to submit the evidence of “exceptional circumstances” which she relies on, together with her application for leave to remain. If that requirement is satisfied, it is reasonable to infer from the terms of the Guidance that the Secretary of State will consider the evidence submitted by the Claimant in determining whether the 28 day period should be applied with its full rigour.[34]To this limited extent, although as the Guidance makes clear the threshold is high, the individual circumstances of the Claimant may be taken into account by the Secretary of State in the exercise of her discretion in the application of the mandatory 28 day period, with the result that leave may be granted despite the application being made outside the 28 day period.[35]The Secretary of State’s discretion is in my view a discretion under the Rule since the statutory Guidance informs the Claimant of the circumstances in which the 28 day period stated in the Rule will not invariably be applied to refuse an application made out of time, provided that the Claimant adduces compelling evidence of exceptional circumstances which justifies a departure from the Rule.[36]Mr. Sharma’s submission that the Guidance imposes a duty on the Secretary of State to consider the exceptional circumstances of the Claimant is partially true. The Secretary of State is under a duty to do so, but only if the Claimant has complied with the Guidance by submitting evidence of the exceptional circumstances which are relied on by her, at the same time as her application for leave to remain is made.[37]However, in the present case no evidence of exceptional circumstances was submitted by the Claimant. There was therefore no compliance with the Guidance by the Claimant with the result that there can be no basis for the submission that the Secretary of State failed to give effect to the Guidance and did not act in accordance with her duty and in accordance with the law.[38]The reliance by Mr. Sharma on the tone of the letter under which the application for leave to remain was sent, the nature of the application and her immigration history as alerting the Secretary of State to the applicant’s “exceptional circumstances”, which she should have taken into account, is misplaced. Neither the letter nor the application nor the Claimant’s immigration history are capable in any event of amounting to exceptional circumstances. But even if they were, the Secretary of State cannot be criticized for the failure by the Claimant to comply with the Guidance. The Claimant has only herself to blame for not following the mandatory procedure for putting evidence of exceptional circumstances before the Secretary of State for her consideration. The Secretary of State’s duty would not otherwise arise. Ground 3: the Secretary of State’s decision is not in accordance with the law because it is incompatible with the common-law principle of fairness.[39]As I have already observed, the essence of Mr. Sharma’s submission of “unfairness” appears to be that the mandatory application of Rule 319 C (j), which results in every application for leave to remain brought by an overstayer after the expiry of the 28 day period being refused, is unfair because there is no consideration by the Secretary of State of the individual circumstances of the particular Claimant.[40]I do not accept Mr. Sharma’s submission. First, the fact that the Rule is mandatory does not mean that it is inherently unfair. No attempt in any event has been made by Mr. Sharma to argue that the Rule can be challenged on the basis of error of law, Wednesbury unreasonableness, irrationality and proportionality.[41]Secondly, the rigour of the mandatory nature of the rule can be mitigated by the applicant by adducing evidence of “exceptional circumstances” in compliance with the requirements of the Guidance, so that the Secretary of State can in her discretion consider whether the 28 day period imposed by the Rule can be departed from.[42]Thirdly, the Claimant can invoke the residual discretion of the Secretary of State outside the immigration Rules, to grant her leave to remain as an overstayer and dependent spouse. She could have done so by making an application setting out the individual circumstances of her case in order to persuade the Secretary of State to grant her leave to remain as a discretionary matter falling within her residual discretion.[43]Both these two options were available to the applicant, but she chose not to pursue either option. Any “unfairness,” which she perceives has resulted from the Secretary of State’s decision to refuse her application for leave to remain, was brought about by her own conduct.[44]There was nothing unfair in the decision making process. If the Claimant had wished her individual circumstances, whether exceptional or otherwise, to be considered and taken into account by the Secretary of State in making her decision, she should have made the appropriate application. However, she failed to do so. Ground 4: the Rule, Paragraph 319 (C) (j) of the Immigration Rules, is incompatible with Article 8; its application by the Secretary of State was unlawful and denied the Claimant her Article 8 rights.[45]The test to be applied in determining whether a Rule should be deemed to be unlawful on the ground that it is not Article 8 compatible is set out by the Supreme Court in R(Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 at paragraph 60. A rule cannot be struck down or declared invalid if “It will not be an unjustified interference with Article 8 rights in all cases”; and “It is capable of being operated in a manner which is compatible with the Convention rights”: per Baroness Hale.[46]Despite Mr. Sharma’s arguments to the contrary, the Rule does not constitute an unjustified interference with the Claimant’s Article 8 rights, in any case let alone in all cases, since the Claimant’s Article 8 rights are unaffected by the Secretary of State’s decision to refuse leave to remain under Rule 319 C (j). Consequently, the mandatory requirements of the Rule are capable of being operated in a manner which is compatible with her Article 8 rights.[47]In R(Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) Sales J gave an overview of the application of the immigration control regime as a whole as a result of the new rules at paras. 35 and 36 in the following terms:
“35 The important points for present purposes are that there is full coverage of an individual’s rights under Article 8 in all cases by a combination of the new rules and (so far as may be necessary) under the Secretary of State’s residual discretion to grant leave to remain outside the Rules and that, consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the Rules in every casewhere Article 8 gives rise to a good claim for an individual to be allowed to remain. This had always been the position in relation to the operation of the regime of immigration control prior to the introduction of the new rules, and the introduction of the new rules has not changed these basic features of the regime. 36 Therefore, in my judgment, the Claimant’s challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State’s residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful.”
[48]There is no basis in my judgment on which it is possible to argue that Rule 319 C (j) should be struck down as incompatible per se with Article 8 or declared unlawful. None of the authorities cited by Mr. Sharma persuade me otherwise.[49]The family and private life Rules which came into force on 9th July 2012 reflect the Secretary of State’s view on how the balance should be struck under Article 8 between the public interest and individual rights in the light of the existing case law.[50]Section GEN.1.1 of Appendix FM to the Rules summarises the objective of the family and private life Rules to strike the balance I have referred to.[51]The Rules in Appendix FM and paragraphs 276ADE-276DH give effect to the public interest considerations in relation to Article 8 set out in section 117B of the Nationality, Immigration and Asylum Act 2002 which were inserted by section 19 of the Immigration Act 2014.[52]In MF (Nigeria) [2013] EWCA Civ 1192, the Court of Appeal held:
“There has been debate as to whether there is a one state or two stage test. If the claimant succeeds on an application of the new rules at the first hurdle ie he shows that para 399 or 399A applies, then it can be said that he has succeeded on a one stage test. But if he does not, it is necessary to consider whether there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation. That is an exercise which is separate from a consideration of whether para 399 or 399A applies. It is the second part of a two stage approach which, for the reasons we have given, is required by the new rules.”
[53]The approach outlined by the Master of the Rolls in MF (Nigeria) and Sales J in Nagre means that the Secretary of State must first consider whether a case meets the requirements of the Rules, and then consider whether the case discloses any exceptional circumstances such as to mean that refusal would result in unjustifiable harsh consequences for the individual or their family, so that refusal of the application would not be proportionate under Article 8.[54]The immigration control regime, including the Secretary of State’s residual discretion consequently takes account of Article 8 rights and the circumstances in which any interference with them can be regarded as proportionate.[55]I again note that the Claimant has not made any application to the Secretary of State for any alleged violation of her Article 8 rights to be considered. I observe, although it is not strictly necessary for me to do so, that there is little or no evidence in the Claimant’s application for leave to remain which suggests that her Article 8 rights are engaged.[56]For the reasons which I have set out above, I dismiss the Claimant’s claim for judicial review of the Secretary of State’s decision dated 3rd March 2015, which refused the Claimant’s application for leave to remain as an overstayer for more than the permitted period of 28 days when her application was made, by the operation of the mandatory requirements of Paragraph 319 C (j) of the Immigration Rules.

Cited in 1 later judgment