R Farooq v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 20 July 2016 |
| Neutral Citation | [2016] EWHC 2386 (Admin) |
| Date | 20 July 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2144/2015 |
[2016] EWHC 2386 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Whipple
CO/2144/2015
Dr Anton van Dellen (instructed by Abbott Solicitors) appeared on behalf of the Claimant
Mr Tom Poole (instructed by the Government Legal Department) appeared on behalf of the Defendant
This is an application for judicial review. It is brought by the claimant, Muhammad Umar Farooq, against the Upper Tribunal and the Secretary of State for the Home Department. The challenge is to the Upper Tribunal's refusal of permission to appeal, dated 7 April 2015 (Upper Tribunal Judge Kekik). This is therefore a Cart case. The Upper Tribunal has declined to play any part in this judicial review, although it did lodge an acknowledgement of service indicating its receipt of it. The Secretary of State for the Home Department is the only party represented before me besides the claimant. The Secretary of State is therefore named as the defendant.
The issue for me, this being a Cart case, is not as to the underlying merits of the Secretary of State's decision but rather as to whether the Upper Tribunal erred in refusing permission to appeal from the First-tier Tribunal, based on the appellant's notice lodged with it.
Permission for judicial review was originally refused by Elisabeth Laing J. I set out part of her grounds for refusal as follows:
"2. The Claimant appealed to the FTT against the decision of the second Defendant refusing him leave to remain as a student. Leave was refused on two grounds. First, the Claimant did not have a confirmation of acceptance for studies ('CAS'). The decision letter dated 30 May 2014 states that the Defendant checked the CAS checking service on 30 May 2014. Second, in the absence of the CAS, the second Defendant could not assess the level of funds the claimant would need. The FTT upheld both grounds of refusal. It reported an argument by the Claimant that he had submitted a CAS 'at a later date' but said that no CAS had been submitted to it. The FTT also checked the bank statements submitted by the Claimant at the hearing and held that they showed that he did not meet the maintenance requirement.
3. The Claimant's grounds do not engage with either of these factual points. They do not explain how, on the facts of this case, the evidential flexibility policy is relevant. Indeed, in some respects, they do not seem even to be dealing with this case: for example, the unsupported assertion in paragraph 35 that the Claimant is financially independent, and the argument based on the recent amendments to the relevant legislation enacted by section 19 of the Immigration Act 2014.
4. They disclose no arguable grounds of challenge to the decision of the FTT. That means that the Cart test is not met. The claim form was also lodged late."
Laing J certified the judicial review as totally without merit pursuant to CPR 54.7A. Because the judicial review had been certified as totally without merit, the claimant could not renew the application for permission orally to this court. The claimant chose to submit an application for permission to appeal to the Court of Appeal. Arden LJ granted that application for permission on 15 November 2015, she saying as follows:
"Reasons: Sufficient grounds for this order are shown by the appellant's skeleton argument read with the recent decision of the Supreme Court in Mandalia v SSHD [2015] 1 WLR 4546."
Accordingly, the matter now comes before me.
Before dealing with the substance of this matter, I make the following observations on the way in which the papers were presented to this court. The claimant failed to serve any trial bundle in proper time, and indeed a defective bundle only reached my desk yesterday afternoon with a second version of that appearing on my desk as I came into court this morning. The claimant served its skeleton only yesterday and, having debated the matter at the outset of this hearing today, I have declined to accept that skeleton as part of the papers that I have had regard to, not least because my preparation for this case and indeed counsel for the respondent Mr Poole's preparation for this case had been completed before we were honoured with receipt of that skeleton. Nonetheless, I allowed Dr van Dellen, who appears for the claimant, to advance such submission as wished to orally, and I believe that Dr van Dellen has said all that he wanted to and could possibly have said on behalf of his client. Dr van Dellen has been made aware of my considerable displeasure at the shambles of paperwork which has confronted me.
Turning to the facts of this case, the appellant is a citizen of Pakistan who was born on 3 March 1990. He arrived in the UK in 2007 as a student. On 14 March 2014 he applied for leave to remain as a Tier 4 student. That application was refused by the Secretary of State on 30 May 2014. The refusal letter states that the checking service, part of the Secretary of State's service provision, confirmed on 30 May 2014 that the claimant did not have a CAS. I have been shown documents submitted by the claimant, for example his appellant's notice to the FTT, which confirms that to be correct in fact. He did not have a CAS at the date on which he applied for leave to remain as a Tier 4 student (14 March 2014) or at the date of the decision refusing that application (30 May 2014). Before me, Dr van Dellen has very properly accepted that fact, which is not in dispute.
By his own account, the claimant then did receive a CAS dated 2 June 2015. He says that he sent it to the Secretary of State within a short time and says that the Secretary of State's refusal letter was received by him shortly afterwards. These matters are not in evidence, but I am prepared to accept them, at least in the absence of any contrary factual evidence. I do so with some hesitation because they should have been put formally in evidence by way of a witness statement.
The claimant appealed to the First-tier Tribunal against the Secretary of State's refusal dated 30 May 2014. On 6 August 2014, his First-tier Tribunal appeal was dismissed by Judge John Maxwell, who said this:
"5. The respondent set out the reasons for refusing entry clearance in the Notice of Immigration Decision a copy of which is held on the court record. In essence the appellant was refused because the appellant did not submit a valid Confirmation of Acceptance for Studies. He also failed to prove he meets the maintenance requirements.
6. The appellant's case is that he was unable to submit his CAS because he did not receive his English-language certificate in time however he did submit his CAS, along with his English language certificate at a later date.
7. This tribunal cannot take account of any documents submitted other than those submitted with the application. In any event, the missing CAS has not been submitted with the appeal documents. Further, the appellant requires £1,600 to be held in an account for a minimum of 28 days in order to meet the maintenance requirements. He claims to meet that requirement. In fact he does not. The bank statements submitted have a closing balance of £2,320.94 on 7 April 2014. I note that the appellant's balance up to 17 March 2014 was £289.90. It follows that the appellant could not have met the maintenance requirements in any event.
8. On the balance of probabilities I agree with the respondent that the appellant does not satisfy the requirements of the Immigration Rules. I find that the appellant has not discharged the burden of proof and the reasons given by the respondent justify the refusal. Therefore the respondent's decisions are in accordance with the law and the applicable Immigration Rules."
On 15 April 2015, the Upper Tribunal refused the claimant's application for permission to appeal. It said this:
"1. The appellant challenges the decision of First-tier Tribunal Judge Maxwell dismissing his appeal against the refusal of the respondent to grant Tier 4 leave. The appellant had failed to submit a CAS with his application and now argues that evidential flexibility principles should have applied to him.
…
… The grounds are hopeless. The appellant was required to provide specified documents with his application. It is accepted he did not do so. In the circumstances, paragraph 245AA did not permit the respondent or the judge to consider documentary evidence adduced later on. The evidential flexibility requirements are not relevant to the appellant's circumstances. The application is not admitted."
On 11 May 2015, the claimant issued his judicial review claim form and then amended his grounds for judicial review on 7 July 2015. His counsel lodged his skeleton on 23 July 2015. Those are the documents filed on his behalf from which I am working. Since then, on 1 September 2015, I am told that the claimant voluntarily left the UK. This would have led to his application being treated as abandoned in any event. It may be that these judicial review proceedings have become, or are very likely to be, redundant, because there would not have been any extant application after September 2015 in any event for reasons unconnected to the Secretary of State's refusal on 30 May 2014.
Turning to the application for judicial review, the first point is the claimant's application for an extension of time. In his appellant's notice to the Court of Appeal, the claimant applied for an extension of time. The issue of...
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