Priyanka Joshi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lady Justice Macur |
| Judgment Date | 15 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1108 |
| Docket Number | Case No: C4/2016/0777 and /0778 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 2018 |
[2018] EWCA Civ 1108
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT ODF JUSTICE
QUEENS' BENCH DIVISION
ADMINISTRATIVE COURT
Professor Christopher Forsyth
(sitting as a Deputy Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur DBE
and
Lord Justice Simon
Case No: C4/2016/0777 and /0778
The Queen (on the application of)
Shivani Jegarajah (instructed by Direct Access) for the appellants
William Hansen (instructed by Government Legal Department) for the respondent
Hearing date: 3 May 2018
Judgment Approved
Introduction
This is an appeal from a decision made on 9 February 2015 by Professor Christopher Forsyth (‘the Judge’), sitting in the Administrative Court, in which he dismissed the claimants' claims for judicial review.
The appeal raises two issues: first, whether the application made by the first appellant was properly characterised as a human rights claim for the purposes of s.94(1) of the Nationality, Immigration and Asylum Act 2002; and second whether the decision on the application was void or nullified on the grounds of illegality?
Background
The appellants are husband and wife, and nationals of India. The first appellant (Ms Joshi) entered the United Kingdom in 2005 with entry clearance as a student. The second appellant entered the country in 2008 as a student dependent. The appellants made a number of applications for leave to remain some of which were refused and some of which were granted. They were, however, never without leave to remain. Since 2005 Ms Joshi has obtained a bachelor's degree at the London College of Fashion and a master's degree from the University of Ulster.
On 26 June 2014, with her existing leave to remain due to expire on 14 July 2014, she made an in-time application for leave to remain as a Tier 4 General Migrant under the Points Based System (‘PBS’), in order to study for a PhD at Bradford Regional College. On 25 September 2014 the college's sponsor licence was revoked by the respondent. Ms Joshi was therefore no longer in possession of a valid ‘Confirmation of Acceptance for Studies’ (‘CAS’).
In a letter of 5 January 2015, UK Visas and Immigration (‘UKVI’) wrote on behalf of the respondent informing Ms Joshi of the decision to revoke the licence of her Tier 4 sponsor; and that consequently she no longer had a valid CAS. The letter went on to inform her that her 26 June 2014 application would be suspended for 60 days (until 6 March 2015) so that she would have ‘the opportunity to withdraw [her] application, to leave the UK or obtain a new tier 4 sponsor.’ The letter added that if she were successful in obtaining a new tier 4 sponsor, she should submit a request to vary the grounds of her original application. On the second page, Ms Joshi was informed, ‘No further extension beyond the 60-calendar day period will be allowed. A decision will be reached on the application after the end of the 60-day period.’ The letter ended: ‘If you fail to submit a new, valid CAS and supporting documents within this 60-day period, then your application will be considered on the basis of the information currently available and will therefore fall to be refused.’
Following receipt of this letter, Ms Joshi tried to find an alternative Tier 4 sponsor: a university that would accept her for a PhD. She was unable to do so for reasons she later explained.
On 4 March 2015 (2 days before the expiry of the 60 days), she applied to extend her leave to remain and enclosed a number of documents in support. These included a completed FLR(O) form. She described the circumstances which made it necessary to find another sponsor. She also set out the difficulties in applying to universities as a PhD student: the time had passed for applying for the January intake, and she did not have time to submit a fully specified research proposal which was a necessary precondition. Such a proposal would normally take 4–6 months to prepare. The letter raised the additional difficulty that some graduate schools would not accept students from colleges whose tier 4 licenses had been revoked. The letter also raised the issue of her ill-health and included letters from medical sources evidencing her hypothyroidism and sinus tachycardia. The letter concluded:
Therefore, I would like to apply under other purposes not covered by the immigration law and under my rights to private and family life guaranteed by article 8 ECHR [and I] request that you grant me leave to remain in the UK for a period which you deem fit and appropriate in my circumstances.
Page 11 of the FLR(O) form included a handwritten entry:
We are unable to move to India due to my medical condition/ongoing investigation. I also want to complete my studies.
On 13 March UKVI wrote informing Ms Joshi that the application for permission to remain in the UK raised issues relating to the European Convention on Human Rights (‘ECHR’) of a complex nature which would be decided as soon as possible. The letter added that as such the application, ‘fell outside our normal service standards.’
On 1 May UKVI wrote again, pointing out that Ms Joshi already had an outstanding application to remain as a Tier 4 student (the 26 June 2014 application), and that where a prior application had not been decided a new valid application was treated as varied and as an application for leave to remain outside the rules (‘LOTR’).
Ms Joshi did not take issue with the contents of either the 13 March or 1 May letters.
The decision which is subject to the first ground of appeal was contained in a letter dated 6 May 2015, although it was not served on the appellants until 11 June 2015 in circumstances that I will come to. The decision was to refuse Ms Joshi's 4 March application and to certify the human rights claim made in it as ‘clearly unfounded’. The effect of such a decision was that any appeal against the refusal could not be made ‘in country’, see s.94(1) of the Nationality, Immigration and Asylum Act 2002. The appellants would have to leave the UK before they could appeal against the decision.
Surprisingly, the 6 May decision letter was not sent to the appellants. Instead, it was marked, ‘served on the file.’ Ms Jegarajah submitted that this was an inappropriate course. A decision should only be served ‘on file’ (in other words not served on an applicant) where their address is unknown, for example where he or she is an absconder. In the present case, UKVI well knew where the appellants lived. It was their correspondence address.
It was in these circumstances that UKVI carried out an ‘enforcement visit’ at the appellants' home at 6.15am on the 11 June 2015. As the Judge noted, both appellants were detained in what were plainly stressful circumstances. Taken entirely by surprise, they were served with (i) the 6 May letter refusing the 4 March 2015 application (the date on the decision letter being changed in manuscript from the 6 May to the 11 June), and (ii) a removal notice which provided that they were due for removal but not before 16 June.
The appellants filed a claim for judicial review while still detained, and an order was made for their release and a stay of their removal until the outcome of the application for judicial review was made by the Administrative Court.
The Judgment of the Deputy Judge
In a well-ordered judgment, the Judge reached a number of conclusions which can be summarised as follows. (1) The claim made by...
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