R George v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson |
| Judgment Date | 11 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1759 |
| Docket Number | Case No: C2/2016/1511 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 2017 |
[2017] EWCA Civ 1759
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
JUDGE COKER
Courtroom No. 70
Room E311
The Royal Courts of Justice
Strand
London
WC2A 2LL
THE RIGHT HONOURABLE Lord Justice Henderson
Case No: C2/2016/1511
Mr P Turner (instructed by Law Lane Solicitors) appeared on behalf of the Applicant
NO APPEARANCE by or on behalf of the Respondent
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This is the oral renewal of an application for permission to appeal from the judgment and order of Upper Tribunal Judge Coker on 11 March 2016 when she refused the applicant, Mr Ansen George, permission to bring judicial review proceedings to quash the decision of the Home Secretary made on 14 October 2015 whereby Mr George was refused leave to remain in the United Kingdom as a Tier 4 student.
Judge Coker refused Mr George permission to appeal to this court. He filed his appellant's notice in time on 7 April 2016. Permission was then refused on the papers by Davis LJ on 6 October 2016.
On an appeal from the Upper Tribunal to the Court of Appeal, the relevant threshold test is that applicable to second appeals. See JD (Congo) & Ors v Secretary of State for the Home Department & Anor [2012] EWCA Civ 327, [2012] 1 WLR 3273 at [1] and Article 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008. This means that permission will not be granted unless this court considers that the appeal would raise some important point of principle or practice or that there is some other compelling reason for this court to hear the appeal. In addition, an appeal from the Upper Tribunal lies only on a point of law.
The background facts in this case are set out in the helpful skeleton argument and chronology prepared by Mr Paul Turner, counsel for the applicant, who has appeared for him this morning as he has on earlier occasions. What follows is no more than a bare summary of the main relevant points.
The applicant is a national of India born in August 1991. He entered the United Kingdom in September 2010 with leave to remain as a Tier 4 student which was valid until 30 August 2013. In due course, there ensued three applications made by him to extend his leave as a Tier 4 student. The first of those applications was made in time on 27 August 2013, and the third of them was made on 2 January 2014.
For present purposes, it is that third application which matters. Following a reconsideration, this application was refused by the Secretary of State in January 2015 on the basis that the applicant's certificate of acceptance for studies, or CAS for short, was no longer valid. This refusal led to judicial review proceedings which were eventually compromised by a consent order and correspondence between the parties which, put shortly, gave the applicant a further period of 60 days within which he could try to obtain a new CAS and submit a fresh Tier 4 application. The 60-day letter which was sent to him contained a clear warning at the end that if the applicant failed to submit a new valid CAS together with the required supporting documentation within the 60-day period, his application would then be considered on the basis of the information currently available and would therefore fall to be refused.
On the last day of the 60-day period, that is to say 2 October 2015, the applicant made an application through his solicitors asking for a short period of leave under exceptional circumstances so as to avoid being treated as an overstayer. This application was made outside the Rules and, in particular, it was not a further Tier 4 application as the 60-day letter had envisaged, nor did it expressly purport to vary or withdraw the outstanding application which had been made on 2 January 2014. Unsurprisingly in those circumstances, the Secretary of State then refused the application of 2 January 2014 in accordance with the warning which had been given at the end of the 60-day letter.
This refusal was set out in a decision letter dated 14 October 2015 which I will refer to as the October 2015 decision.
In due course, the Secretary of State also considered the fresh application of 2 October which, as I have said, was made outside the Rules. That application was first refused on 27 November 2015, but the Home Secretary later agreed to reconsider it, which led to a further...
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