R Aamir Afzaal v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Robin Purchas |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] EWHC 2215 (Admin) |
| Date | 09 July 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1461/2013 |
[2014] EWHC 2215 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robin Purchas QC
(sitting as a Deputy Judge of the High Court)
Case No: CO/1461/2013
Zia Nasim (instructed by Morgan Mark Solicitors) for the Claimant
Ben Lask (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 1 st May 2014
Mr Robin Purchas QC:
Introduction
In this application the Claimant applies for judicial review of a decision made on behalf of the Secretary of State on the 13 November 2012 refusing the Claimant further leave to remain as a Tier 4 General Student. Mr Zia Nasim, who appears for the Claimant, relied on four grounds:
a) that there was no valid condition imposed on the original leave to enter and so no breach (ground 1);
b) that the evidence provided of available funds was sufficient because the Claimant had an established presence in this country (ground 2);
c) that the Secretary of State acted unfairly in refusing the application (ground 3); and
d) that the Secretary of State failed to exercise her discretion (ground 4).
The grounds 1 and 2 were not originally pleaded in the Grounds for Judicial Review and first appeared in Mr Nasim's skeleton argument for the purposes of the hearing on 1 st May 2014. No objection was raised on behalf of the Secretary of State in that respect and the case proceeded on that basis at the hearing. Permission was granted on the papers on the 15 May 2013.
In the course of his submissions on 1 st May 2014 Mr Benjamin Lask, who appears for the Secretary of State, raised a question concerning the Immigration (Leave to Enter and Remain) Order 2000 ("the 2000 Order"), of which the Claimant had not had notice and which Mr Lask frankly acknowledged had only come to his notice the day before the hearing. The point potentially had implications that went beyond the particular facts of the present case and was therefore of some importance. With the agreement of the parties I directed that the question of whether the endorsement on the Claimant's entry clearance vignette complied with the 2000 Order should be the subject of a subsequent exchange of written submissions, indicating whether either party considered that a further oral hearing was required, in the light of which I would decide whether to have a further hearing or proceed directly to make my decision.
Exchanges of written submissions took place following the hearing in accordance with that direction, in the light of which I determined that I did not require a further hearing and am now able to determine the issue as part of this judgment.
As part of those subsequent written submissions the Claimant now also relies upon the contention that there was no endorsement of the no study condition on the entry clearance as required by the 2000 Order and accordingly that condition was of no effect. I will consider that as part of Ground 1.
Background
The Claimant came to this country from Pakistan on 7 September 2010, having obtained entry clearance as a Tier 4 General Student until the 10 May 2012 to undertake a course at the JFC Training College ("JFC"). In his written statement dated 29 April 2014 he explained that he started studying at JFC but was not satisfied with its educational standards. He was unaware that there was any condition on his entrance clearance not to study elsewhere and he applied to and was accepted by the Walthamstow Business College ("WBC") in January 2011. He continued to study there until January 2012. He had been told by WBC that he did not need to make a formal application to the United Kingdom Border Agency ("UKBA") for the change in course.
Thereafter on the 16 May 2011 UKBA were notified by JFC that the Claimant had ceased studying with them but, when the matter came to be considered by UKBA on the 6 December 2011, it decided not to curtail the Claimant's leave as less than 6 months was left on the clearance.
On the 10 May 2012 the Claimant obtained confirmation of acceptance (CAS) for a further course of study at the Bedfordshire Business School ("BBS") commencing on the 9 July 2012 to run until the 31 August 2013. The 10 th May 2012 was the last day of the original entry clearance. He completed an application form which bears that date, seeking further leave to remain. The form identified the new sponsor with its sponsor licence number. It stated that the Claimant was making the application as a person with an established presence so that evidence of means of £5,000 was required. In fact the bank statements submitted with the application demonstrated funds of £9,714.11. The application was received by UKBA on the 15 May 2012, having been sent by first class post.
On the 13 November 2012 the Secretary of State wrote to the Claimant refusing to grant leave to remain. The decision letter stated that on the 14 May 2012 the Claimant had made an application for leave to remain in the United Kingdom as a Tier 4 (General) Student Migrant. It referred to the original clearance and explained that the original entry clearance prohibited the Claimant from studying at an institution other than the sponsor body and that he was therefore in breach of that condition of his entry clearance. The letter went on to explain that, as the application was made on the 14 May 2012, being the assumption made from its receipt on the 15 May 2012, the Claimant's leave had expired on the 10 May 2012 and so funds of £10,600 were required which had not been demonstrated on the evidence submitted. For those reasons, the application was refused.
On 20 November 2012 solicitors acting for the Claimant wrote a pre-action protocol letter. It recited the history of the case including that the Claimant's leave to enter was valid until the 10 May 2012 and that on the 14 May 2012 he had applied for further leave to remain. The letter accepted that the requirement for funds was £10,600 in those circumstances but said that the Claimant had been advised by his Tier 4 sponsor that he was only required to demonstrate £5,000 funds. The letter went on to say that the Claimant was not aware that he was in breach of the condition of his entry clearance and complained that the Claimant should have been informed of the inadequacy of funds and the breach of condition and allowed to address the deficiencies.
Thereafter an application for judicial review was issued on the 11 February 2013 in similar terms, asserting that the application was made on the 14 May 2012 and accepting that the maintenance funding requirement was accordingly £10,600 but contending that the Secretary of State had acted unfairly in refusing the application.
In his skeleton argument filed on the 24 April 2014 Mr Nasim made the two further contentions:
a) that there was no valid condition imposed on the original entry clearance because no condition had been specifically imposed to prevent study at another institution so that there was no relevant breach; and
b) that in fact the Claimant had posted the application on the 10 May 2012 and therefore it was deemed to have been made on that date; in consequence the Claimant had an established presence in this country and the maintenance requirement was for funds of £5,000 to be shown to be available, which the Claimant had done.
The witness statement from the Claimant made on the 29 April 2014 confirmed that he had posted the application on the 10 May 2014 and so had an established presence in this country. Mr Nasim explained that he had been instructed late in this application and that his instructions from the Claimant were given at that time as to the date of posting.
I will deal with the four grounds of challenge in turn.
Ground 1 — No study condition
Legal framework and guidance
Section 3 of the Immigration Act 1971 ("the 1971 Act") provides so far as relevant:
"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen … (b) he 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; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely:
a. a condition restricting his employment or occupation in the United Kingdom;
( ia) a condition restricting his studies in the United Kingdom;
b. a condition requiring him to maintain and accommodate himself and any dependants of his without recourse to public funds;
c. a condition requiring him to register with the police;
d. a condition requiring him to report to an immigration officer or the Secretary of State; and
e. a condition about residence.
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom for persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances …."
The Immigration Rules were made by the Secretary of State pursuant to section 3(2) of the 1971 Act. Rule 245ZW applies to Tier 4 General Student clearance and provides for the period and the conditions of grant. Sub-paragraph (c) provides:
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