R Raza v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | D Gill |
| Judgment Date | 26 November 2013 |
| Neutral Citation | [2013] EWHC 4401 (Admin) |
| Date | 26 November 2013 |
| Docket Number | CO/1312/2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 4401 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
D Gill
(Sitting as a Deputy High Court Judge)
CO/1312/2013
Ms B Asanovic (instructed by Khans Solicitors) appeared on behalf of the Claimant
Miss C Rowlands (instructed by Treasury Solicitors) appeared on behalf of the Defendant
THE DEPUTY JUDGE: The Claimant is a national of Pakistan who, in his original claim lodged on 6 February 2013, sought permission to challenge a decision of the defendant of 7 November 2012 refusing an application he made on 28 June 2012 for leave to remain as a Tier 4 student.
The original grounds called into question the validity of an earlier decision — that of 9 May 2012 — to refuse an application made on 13 April 2012 that was made one day before his leave expired. The earlier decision of 9 May 2012 refused the application of 13 April 2012 on the ground that the application was invalid because mandatory sections of the form had not been completed. Whilst the original grounds took issue with the validity of the decision of 9 May 2012, the reality is that the original claim did not seek any remedy in relation to that earlier decision of 9 May 2012.
I shall hereafter refer to the application of 13 April 2012 as the "first application", the decision of 9 May 2012 as the "first decision", the application of 28 June 2012 as the "second application" and the decision of 7 November 2012 as the "second decision".
The Claimant has submitted a skeleton argument received today which set out amended grounds pursuant to which the Claimant now seeks permission to make a direct challenge to the lawfulness of the first decision, seeking a remedy or a declaration that that first decision as well as the second decision are unlawful and that they be quashed.
There is, therefore, a timeliness issue here which Ms Asanovic seeks to persuade me should not be considered to exist because the Claimant is seeking to argue that unlawfulness in the earlier decision sets the context for the second decision. I do not accept that there is no timeliness issue, given that the amended grounds make a direct challenge to the lawfulness of the first decision and seek that it be quashed. However, I will deal with the merits of the arguments advanced before deciding the time point.
A key point in relation to the first application is that the Claimant made his application one day before his leave ran out. The first decision rejected that application for the reasons I have explained. At the time that the Claimant made the first application, he did not satisfy the substantive requirements of the Immigration Rules for leave as a Tier 4 student. This is because he had not arranged to take an English language test. He took the first part of the test on 17 April 2012 and the second part of the test on 30 April 2012. In addition, he did not have a CAS letter assigned. The earliest date that he had a CAS letter assigned to him was 25 June 2012.
The Claimant seeks to rely upon an assurance that he said he was given to him in a letter dated 18 April 2012 which states:
"If there is any problem with the validity of the application, such as missing documentation or omissions on the form, a caseworker will write to you as soon as possible to advise what action you need to take to rectify the problem."
Even if the Defendant had honoured that assurance at any time prior to 25 June 2012, the Claimant could not have submitted an application that could have succeeded, given that he did not have a valid CAS letter until 25 June 2012. So in this respect, the Claimant is, in effect, saying that not only did the Defendant give him an assurance which gave rise to a legitimate expectation that any problems with his application would be notified to him, but that the Defendant ought not in fairness to write to him until he was able to fulfill the requirements under the Immigration Rules.
At the same time, it is argued on the Claimant's behalf that the second decision is unlawful for reasons which include a substantial and unlawful delay. The background for that argument is that the licence of the sponsor that issued the CAS letter to the Claimant on 25 June 2012 was cancelled on 24 October 2012. Miss Rowlands informs me that the sponsor institution, in fact, surrendered its licence.
The Claimant's argument is that, in considering his second...
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R Raza v The Secretary of State for the Home Department
...ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Ms D K GILL (Sitting as a Deputy High Court Judge) [2013] EWHC 4401 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Mr Darryl Balroop (instructed by Law Lane Solicitors) for the Mr Zane Malik (instructed by G......