R (Fu) v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 01 November 2010 |
| Neutral Citation | [2010] EWHC 2922 (Admin) |
| Docket Number | CO/12751/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 November 2010 |
[2010] EWHC 2922 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Mitting
CO/12751/2009
Mr S Juss (instructed by G Singh Solicitors) appeared on behalf of the Claimant
Miss H Stout (instructed by Treasury Solicitors) appeared on behalf of the Defendant
(As Approved)
: In this claim the claimant challenges the Secretary of State's refusal to treat as valid an application submitted under paragraph 34 of the Immigration Rules for leave to remain as a Tier 4 (General) Student Migrant. The claimant in fact submitted two applications. His challenge is brought in respect of the refusal of both of them.
He was born in China on 16 September 1979 and entered the United Kingdom on 6 June 2000 with entry clearance valid until 11 November. Thereafter he has studied in the United Kingdom and has done so with the benefit of leave to remain, renewed approximately annually. The last period of leave to remain expired on 31 May 2009. Two days before it did, on 29 May he made an application for further leave to remain. His application was acknowledged on 9 June. On 18 June the Secretary of State sent a largely pro-forma letter to him rejecting his application as invalid. The reason given was expressed against a box in which a cross had been marked:
“The application or claim must be accompanied by the photographs as specified as mandatory in the application form and/or related guidance notes.”
In the light of the decision of the Court of Appeal in Pankina v the Secretary of State [2010] EWCA Civ 719, it is common ground that there was at the date upon which the relevant Immigration Rules were laid before Parliament no guidance as to the format in which the photographs were to be provided. Accordingly, the only mandatory requirement was that set out on the face of the form.
The mandatory requirement was:
“For your application to be valid, it is mandatory to provide the following photographs:
• Two recent identical passport-sized photographs of yourself with your full name on the back of each one.”
The consequences of failure to comply with mandatory requirements of the rules are set out in rules 34A and C. 34A sets out in relation to photographs what must be provided:
“34A (vi) Where the application or claim is made by post or courier, or submitted in person:
(a) the application or claim must be accompanied by the photographs and documents specified as mandatory in the application form and/or related guidance notes …
34C Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered.”
It is however common ground that there remains a residual discretion in the Secretary of State to accept as valid an application which does not comply in all respects with the mandatory requirements. One of the issues at the heart of this claim advanced by the claimant is that the Secretary of State should have exercised his discretion on the facts of this case. There is an issue of fact which is not satisfactorily addressed by the documents filed by the claimant and only inferentially addressed by those filed by the Secretary of State. In correspondence, the claimant's solicitors asserted that the Secretary of State had rejected the application because photographs of the wrong size had been provided. No document that I have seen supports that assertion. The decision letter of 18 June 2009, on which it appears that the claimant principally places reliance to demonstrate it, says no such thing. As I have already stated, the relevance box ticked was one which asserted that the application had not been accompanied “by the photographs … specified as mandatory in the application form”. That phrase is capable of indicating either that no photographs were provided, or that photographs were provided but they did not comply with the specification in the application form.
If the document stopped there, then the latter might be a reasonable interpretation of the response, but the next tick box on the letter against which no cross had been put said:
“The photographs must be in the format specified as mandatory in the application form and/or related guidance notes.”
That is the box against which a cross would have been put if photographs had been supplied, but they did not comply with the mandatory requirements.
It is puzzling that the claimant, who must have completed nine or ten forms similar to that in issue here and would have supplied passport-sized photographs when doing so, did not do so on this occasion. But he has put in no evidence to claim that he did. He had the only subsisting copy of the form which he supplied to the Home Office, who of course returned it to him and do not retain a copy. He could have demonstrated, by producing a copy of that form or even by providing a witness statement in which he said what he had done, that he had indeed supplied photographs, but he has not done so. Accordingly, the only material that I have upon which I can found a judgment as to whether or not photographs were provided is the decision letter itself. Its natural, indeed only, meaning is that the application was rejected because no photographs had been provided, not no compliant photographs.
Accordingly, I approach the questions raised in the claim on the footing that, as a matter of fact, the application form was not accompanied by photographs, which both the rule and the form required to be provided as a mandatory requirement.
A subsidiary point in Mr Juss's argument for the claimant is that the Secretary of State held out to him that, if he submitted photographs after 18 June 2009, at any rate within a short time thereafter, then his application would be treated as having been validly made. That argument is untenable for the simple reason that it is clear from the documents that the claimant did not simply provide photographs in purported reliance on such an assertion, but actually completed a new application form. That he did so is demonstrated by the date of the version of the form, which is June 2009, and by the date which it bears, which is 25 June 2009. Plainly, it is a new and newly completed form.
At the heart of Mr Juss's submission is the proposition that the claimant has substantially complied with the relevant Immigration Rules, and so his application is capable of being valid and should have been treated as valid. The foundation for this argument is R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354. The issue in the case was whether or not an application for permission to appeal made by the Secretary of State but not made in the statutory form was nevertheless a valid application. There was much debate about whether the requirement was directory or not, and in any event whether there had been substantial compliance with it.
The appellate Tribunal had held that there had been. Sedley J quashed the decision and said that the application was a nullity. The Court of Appeal reversed Sedley J. The approach of Lord Woolf MR to the consequences of failing to comply with the procedural requirement was set out on page 362G:
“Any consideration of the significance of not complying with a procedural requirement commences with the language of the instrument containing the requirement.”
In this case, the language of the instrument containing the requirement is paragraphs 34A and 34C of the Immigration Rules (already cited). The language is unequivocal. An application which does not fulfil the mandatory requirements of rule 34A is invalid and will not be considered. The doctrine of substantial compliance, if there is such a doctrine (and I share the doubts of Maurice Kay J expressed in paragraph 11 of his decision in Campbell v Secretary of State for the Home Department [2003] EWHC 2681 Admin), can have no bearing upon that issue. Rule 34C admits of no other possibility than that failure to comply with a mandatory requirement renders the application invalid unless, in the exercise of discretion, the Secretary of State decides to treat it as valid. That is a separate question and is not to be determined by the doctrine (if there is one) of substantial compliance.
Mr Juss puts the claim in an alternative way — possibly his preferred way — in reliance on a decision of Sullivan J in Forrester v Secretary of State for the Home Department [2008] EWHC 2307 Admin. She was applying for leave to remain as the spouse of a person present and settled in the United Kingdom under paragraph 284 of the Immigration Rules. Her application was made in time and accompanied by a cheque. The cheque was returned unmet by her bank because there were insufficient funds in her account. A few days later she submitted a second application with a cheque which was met. There was a mandatory requirement contained in paragraph 34A(ii) of the Immigration Rules that an application be accompanied by the specified fee. Tendering a cheque which was not met did not satisfy that requirement. Consequently, the first application was rejected.
Her second application was rejected on a different ground. It is a requirement of paragraph 284(1) of the Immigration Rules that when an application for leave to remain is made, the applicant has subsisting leave to remain. When the claimant made her second...
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