Charanjit Kaur v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Patten,Lord Justice Underhill |
| Judgment Date | 24 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1303 |
| Docket Number | Case No: C5/2016/0025 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2018 |
[2018] EWCA Civ 1303
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN
IA/41118/2014 and IA/41123/2014
IN THE MATTER OF AN APPLICATION FOR PERMISSION TO APPEAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Underhill
and
Lord Justice Lindblom
Case No: C5/2016/0025
Mr Rajiv Sharma (instructed by Paul John and Co. Solicitors) for the Applicant
Mr Nicholas Chapman (instructed by the Government Legal Department) for the Respondent
Hearing date: 27 March 2018
Introduction
The applicant, Charanjit Kaur, seeks permission to appeal to this court against the decision of the Upper Tribunal (Deputy Upper Tribunal Judge Chamberlain), promulgated on 16 October 2015, allowing the appeal of the respondent, the Secretary of State for the Home Department against the decision of the First-Tier Tribunal (First-tier Tribunal Judge Lawrence), promulgated on 14 May 2015, which had allowed her appeal against the refusal by the Secretary of State, on 25 September 2014, of her application for leave to remain in the United Kingdom as a Tier 4 (General) Student.
The Upper Tribunal refused permission to appeal on 7 December 2015. Permission to appeal was subsequently applied for in this court, and was refused by Rafferty L.J. on 7 April 2016. The application was renewed, and came before McFarlane L.J. at a hearing on 13 February 2017. He ordered that the matter be set down for a “rolled-up” hearing, and that Ms Kaur had permission to file and serve amended grounds of appeal and an amended skeleton argument within 14 days – which she duly did.
Ms Kaur and her husband, Saab Singh, are both nationals of India. Ms Kaur entered the United Kingdom on a Tier 4 (General) Student visa, on 16 November 2010, and her leave to remain was subsequently extended until 30 August 2014. Mr Singh entered the United Kingdom as her dependant. On 30 August 2014 she made an application for further leave to remain. On 1 August 2014 Mr Singh had transferred the sum of £3,700 from his savings account at Halifax Bank to Ms Kaur's savings account at Barclays Bank. Those funds were not, however, credited to Ms Kaur's account until 4 August 2014. Thus, by the time Ms Kaur made her application for further leave to remain, the requisite funds under the points-based system in the Immigration Rules had been in Ms Kaur's account for only 27 days – one day short of the period of 28 days specified in paragraph 245ZX.
Paragraph 245ZX of the Immigration Rules
At the relevant time, paragraph 245ZX of the Immigration Rules stated:
“245ZX. Requirements for leave to remain
To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.
Requirements:
…
(d) The applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C.
….”
Appendix C stated:
“1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must meet the requirements listed below:
(a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application;
…
(c) If the applicant is applying as a Tier 4 Migrant, the applicant must have the funds referred to in (a) above for a consecutive 28-day period of time;
…
(h) the end date of the … 28-day [period] referred to in … (c) above will be taken as the date of the closing balance on the most recent of the specified documents …, and must be no earlier than 31 days before the date of application.
…
1B. In all cases where Appendix C … states that an applicant is required to provide specified documents, the specified documents are:
(a) Personal bank or building society statements which satisfy the following requirements:
(i) The statements must cover:
…
(3) a consecutive 28-day period of time, if the applicant is applying as a Tier 4 Migrant …
…
…
Tier 4 (General) Students
10. A Tier 4 (General) Student must score 10 points for funds.
….”
The Secretary of State's decision letter of 25 September 2014
The Secretary of State's decision letter stated that Ms Kaur had “failed to meet the requirements of paragraph 245ZX(d)” of the Immigration Rules, because she had “not been awarded 10 points for Maintenance (Funds)”. Two reasons were given:
“• You are required to show living costs of £1,640.00 for yourself, £920.00 for your dependant(s) plus your outstanding course fees of £0.00 as stated on your CAS. You are therefore required to show that you are in possession of £2,560.00 for a consecutive 28 day period to meet the Tier 4 (General) Student maintenance requirements.
• The bank statements with account number ****2024 have not been accepted as evidence of funds because they only show funds between 4 August 2014 and 30 August 2014 and so do not cover the required consecutive 28 day period. While the statements run to 1 September 2014 we cannot take into consideration any funds held after the date of your application.”
In section B of the decision letter, “Appeal Rights”, it was confirmed that there was a right to appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002, as amended. In section D, “Option to make new application”, the decision letter referred to the possibility of the decision being reconsidered “on the basis of new or additional information …”, provided that a fresh application was submitted, including “full supporting evidence …”.
The decision of the First-tier Tribunal
In his decision the First-tier Tribunal judge said (in paragraphs 2, 3 and 4 of his decision):
“2. … The respondent found that the first appellant has to demonstrate she had access to £2,560 for a consecutive 28 days from the 3 rd of August 2014 to the 30 th of August 2014. The evidence submitted to the respondent, with the application, is that the first appellant had access to the said sum but only from the 4 th of August 2014. She was short by one day. Given that the first appellant could not strictly meet the 28 days the respondent refused the applications under para 245ZX(d) of HC395. There are no other issues. It seems to me to refuse applications on the basis of a delay day [sic] is contrary to common sense. The man or woman on the ‘Clapham omnibus’ will hold such a decision with derision.
3. I remind myself of the judgment in [ Forrester v Secretary of State for the Home Department] [2008] EWHC 2307 (Admin) where the High Court found that the respondent “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”. Equally, I am at a loss to identify the logic behind the respondent's refusal to exercise discretion in the first appellant's favour. I find the respondent's approach to the first appellant's case is ‘tick box’ decision making and not giving weight to the issues. In my view, a delay [sic] of one day should not have led to the applications being refused.
4. It is for the respondent to exercise discretion in the first instance. It is for this reason I remit the matters to the respondent. For my part I would have allowed the appeals in their entirety had the respondent … exercised discretion and exercised it differently. In these appeals common sense should prevail.”
The First-tier Tribunal judge then stated that the appeal was “remitted to the respondent for her to exercise discretion in favour of the appellants”, and that, “[to] that extent”, the appeals were allowed. He also made a whole fee award in favour of Ms Kaur and Mr Singh, observing that the Secretary of State's “failure to exercise discretion caused these appeals to be lodged with the Tribunal”.
The Secretary of State's appeal to the Upper Tribunal
The Secretary of State sought permission to appeal to the Upper Tribunal on the grounds that the First-tier Tribunal had made a “material misdirection of law” in its determination, and that for it to remit the matter to her was a “clear error of law”. Paragraph 245ZX(d) of the Immigration Rules, it was submitted, “does not permit discretion reviewable by the judge, but is a clearly stated rule designed to ensure consistency of treatment”. Reference was made to section 86(6) of the 2002 Act, “which states that ‘refusal to depart from or authorise departure from immigration rules is not the exercise of a discretion’ …”.
On 14 July 2015 First-tier Tribunal Judge Simpson granted permission to appeal. In doing so, she identified the Secretary of State's grounds as being, first, that the First-tier Tribunal judge had “made a material misdirection in law in allowing the appeals despite the fact that it was common ground that the first appellant had not had £2,560 in her account for 28 consecutive days to the 30 August 2014”, and secondly, that he had “erred in remitting the appeals [to] the Secretary of State as para. 245ZX(d) does not permit discretion reviewable by the Judge”. She observed that it had been “common ground that the first appellant was short by one day”, and that the First-tier Tribunal did “not have jurisdiction to allow the appeal, or to remit it to the Secretary of State to exercise a non-existent discretion”. She added that “[the] rule is simple – the money must be in the account for 28 days, not 27”. In her view, therefore, the Secretary of State's grounds “review an arguable material error of law”.
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