R Sandip Narpatsinh Sayaniya v Upper Tribunal (Immigration and Asylum Chamber) Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Christopher Clarke,Lady Justice Arden |
| Judgment Date | 10 February 2016 |
| Neutral Citation | [2016] EWCA Civ 85 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2014/1473 |
| Date | 10 February 2016 |
[2016] EWCA Civ 85
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Hamblen
CO/15880/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Ady Justice Arden
Lord Justice Beatson
and
Lord Justice Christopher Clarke
Case No: C4/2014/1473
and
Zane Malik (instructed by Malik Law Chambers Solicitors) for the Appellant
The Respondent did not appear and was not represented
Andrew Sharland (instructed by Government Legal Department) for the Interested Party
Hearing date: 26 January 2016
Introduction:
The sole issue in this appeal concerns the applicability of the public law principle that the exercise of discretion in a particular case should not be fettered by over-rigid policies and mandatory rules in the Immigration Rules ("the Rules") made under the Immigration Act 1971 ("the 1971 Act"). Paragraph 322(1A) of the Rules provides:
"Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the applicant or in order to obtain documents from the Secretary of State or a third party required in support of the application …
Leave to remain or variation of leave to enter or remain in the United Kingdom are to be refused" (emphasis added).
It is submitted by Mr Zane Malik on behalf of the appellant, Sandip Narpatsinh Sayaniya, that paragraph 322(1A) of the Rules is ultra vires because it is expressed in mandatory terms and thus unlawfully fetters the broad discretion conferred on the Secretary of State by section 3(1) of the 1971 Act to grant or refuse leave to enter or remain in the United Kingdom. Mr Malik maintained that in making the rule the Secretary of State in effect abdicated her statutory power under this provision because the nature of the rule excludes consideration of all other factors which may be relevant in a particular case but cannot trump its terms.
Mr Sharland, on behalf of the Secretary of State, submitted that the non-fettering principle does not apply to a statute which expressly permits rules to be made, as the 1971 Act does and, in any event, in the present context the necessary flexibility exists because the Secretary of State may grant a person discretionary leave to remain "outside the rules".
For the reasons I give at [15] and [21] – [41] below, I consider that paragraph 322(1A) is not ultra vires and that this appeal should be dismissed.
The factual background:
The appellant is a citizen of India born on 16 August 1981 and therefore now 34 years of age. He entered the United Kingdom in December 2003. Since March 2008 he has had leave to remain as a Tier 4 Student pursuing various courses. The courses have been pursued at a number of colleges; the London Institute of Technology, the Cromwell College of IT, and the Royal College. His last grant of leave was to expire on 30 April 2013. It was, however, curtailed on 26 March 2012 to expire on 25 May 2012 because, on 6 September 2011, the college at which he was studying had its sponsor licence revoked. He was thus given 60 days to find another sponsor pursuant to the Secretary of State's Tier 4 Policy Guidance.
On 13 April 2012, the appellant was convicted for driving with excess alcohol and also for driving without due care and attention. He was made subject to a community order with an unpaid work requirement and a requirement to attend a drink-drive rehabilitation course.
On 24 May 2012, a day before his leave expired, the appellant applied for leave to remain as a Tier 4 (General) Student Migrant to study an AIA professional qualification from 4 July 2012 to 4 July 2014. The application form specifically asked whether he had any criminal convictions in the United Kingdom or any other country, including traffic offences, and the appellant ticked "no" in the relevant box on the form. On 9 January 2013, the Secretary of State refused his application under the Rules, stating that the decision was made in line with the Rules and the Tier 4 Policy Guidance. At that stage, a decision was also made to remove him from the United Kingdom, but that decision was withdrawn.
Two reasons were given in the decision letter for refusing the application under the Rules. The first was the appellant's failure to disclose the fact that he had a criminal conviction. The letter stated that the Secretary of State was satisfied that this was material to the application because it is an offence under section 26(1)(c) of the Immigration Act 1971 to make a statement or representation which is known to be false or not believed to be true. As material facts were not disclosed, the application was refused under paragraph 322(1A) of the Rules. Secondly, the application was refused under paragraph 245ZA(ha) because entry clearance for leave to remain for Tier 4 applicants to undertake studies at degree level or above is limited to a maximum period of five years save for those studying specified courses, and the Secretary of State considered that the appellant exceeded that period.
The appeal to the Tribunal and the judicial review proceedings:
The appellant appealed against the Secretary of State's decision on 23 January 2013. At the hearing before the First-tier Tribunal ("FtT") on 9 July 2013 he gave oral evidence. He inter alia stated that he did not know that driving with excess alcohol was a criminal offence and that his solicitors had told him that it was not.
In a determination promulgated on 22 July 2013 the FtT stated that in the light of the evidence and all the circumstances, including the fact that the application form the appellant filled in specifically asked about traffic offences, at [24] and [29] of the decision it rejected the appellant's account that he did not realise that a driving offence needed to be disclosed and dismissed the appeal. It concluded (at [30]) that the Secretary of State had shown "to a high balance of probabilities" that material facts were not disclosed in relation to the application and that paragraph 322(1A) applied to the case so that the appellant had not shown that he met the requirements of the Rules. It did not deal with the appeal against the paragraph 245ZA(ha) ground for refusing the application under the Rules.
The tribunal went on to consider Article 8. It concluded that as the appellant was a 31 year old man who had spent the majority of his life outside the United Kingdom, any interference with his private life as a result of not permitting him to continue his studies in this country was necessary and proportionate to the wider public interest of maintaining an effective immigration policy.
The appellant's application for permission to appeal was refused by the Upper Tribunal on 23 September 2013. Judicial review proceedings were launched, but on 3 April 2014 Hamblen J refused permission on the papers. Permission to appeal against that decision was given by Christopher Clarke LJ on 8 January 2015.
Analysis:
There is no appeal against the FtT's rejection of the appellant's case that he did not know driving with excess alcohol was a criminal offence or its conclusions as to the applicability of rule 322(1A) to his case and on his claim based on Article 8.
The question before us, whether paragraph 322(1A) is ultra vires, could not have been raised in the FtT. Notwithstanding the attractive way Mr Malik put his submissions, I have concluded that the clear answer to that question is "no".
My starting point is that the decisions on the "non-fettering" principle relied on by Mr Malik such as Attorney General ex rel Tilly v Wandsworth LBC [1981] 1 WLR 854 and R v Secretary of State for the Home Department, ex p Venables [1998] AC 407 at 469 did not concern a statute which expressly permits rules to be made, as the 1971 Act does. Neither does British Oxygen Co Ltd v Minister of Technology [1971] AC 610, which contains an earlier and classic review of the position. While, as will be seen, immigration rules are not law in the sense that a statute or a statutory instrument is, there are many decisions of the House of Lords and the Supreme Court involving the application of provisions of a mandatory nature in the Immigration Rules. They are susceptible to challenge on grounds of error of law, Wednesbury unreasonableness or irrationality and proportionality but in none of the cases is it suggested that their mandatory nature in itself makes them ultra vires. The second reason is that given by the judge when refusing permission to apply for judicial review. It is that, although paragraph 322(1A) is in mandatory terms, the Secretary of State may depart from it by making a decision more beneficial to an applicant such as to grant discretionary leave to remain "outside the rules" when the Rules provide that leave should not be given.
(i) Rules and Discretion
Before turning to my reasons for concluding that that this appeal should be dismissed, it is appropriate to refer to the operation of rules and discretion in our system of administrative law and the trajectory of the development of administrative law and governmental policy since the 1970s. The general difference between rules as prescriptive and mandatory and discretion as open-textured and advisory with policy statements and guidance is well recognised: see for example the statements in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208 at [114], [120] and see also...
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