R Ullah v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge Taylor |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 337 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/985/2013 |
| Date | 22 January 2015 |
[2015] EWHC 337 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Her Honour Judge Taylor
Sitting as a Judge of the High Court
CO/985/2013
Mr Z Malik (instructed by MLC Solicitors) appeared on behalf of the Claimant
Ms S Fatima (instructed by Treasury Solicitors) appeared on behalf of the Defendant
The claimant in this judicial review claim brought with permission of HHJ Gilbart QC sitting as a Judge of the High Court, challenges the Secretary of State's decision of 21 May 2012, subsequently upheld on 18 December 2013, to refuse his application for leave to remain in the United Kingdom as a Tier 4 (General) Student.
The background facts in this case are not disputed. The claimant is a citizen of Bangladesh and was born on 12 December 1985. He was granted leave to enter the United Kingdom as a Tier 4 (General) Student on 16 November 2009 until 30 January 2012. He made an application for further leave to remain as a Tier 4 (General) Student a day later, on 31 January 2012. The Secretary of State refused his application under paragraph 14 of Appendix C to the Immigration Rules on the basis that it was made late, and therefore he was unable to demonstrate established presence under paragraph 14 as he had no current leave. The judicial review claim was issued on 29 January 2013 and the acknowledgement of service was filed on 22 February 2013.
HHJ Gilbart QC granted permission to apply for judicial review on the papers on 9 January 2014. Initially there were three grounds relied upon, the first being that the Secretary of State has misconstrued paragraph 14 of appendix C to the Immigration Rules ("the construction argument"). The second ground was that the Secretary of State's decision was unlawful on the principle of de minimis non curat lex ("the de minimis argument"). The third ground was that the Secretary of State had failed to exercise or consider exercising her residual discretion in the claimant's failure which was, it was argued, unlawful. It was clear from HHJ Gilbart's order of 9 January that permission was given only in relation to Grounds 1 and 2 and today I have refused a further application from Mr Malik that Ground 3 should also be considered.
The points raised by the claimant in this case have recently been considered in very similar circumstances in R (Behary) v Secretary of State for the Home Department [2013] EWHC 3575 (Admin). Mr Malik, who appears for the claimant in this case appeared for the claimant in Behary, when the arguments which he has made before the court today were all comprehensively rejected by the Deputy Judge. Permission to appeal was refused by Davis LJ on 28 July 2014 but on 16 December 2014 permission to appeal was granted by Bean LJ on, relevant to this case, the construction argument only, in the light of two further decisions, Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773 and Pokhriyal v the Secretary of State for the Home Department [2013] EWCA Civ 1568, which was handed down after the promulgation of Behary.
In granting permission it is of significance that at paragraph 4 of the reasons Bean LJ said the following:
"Mr Malik has, however, persuaded me that ground 2 is arguable. His case is that, while on the construction of paragraph 14 of Appendix C to the Immigration Rules on its own the word 'current' obviously means 'current' (ie unexpired) leave to remain, the term may be open to a different construction in the light of the Secretary of State's own guidance documented cited by Mr Malik at paragraph 27 of his skeleton argument. This suggests that an applicant may have an established presence in the United Kingdom if she has had recent permission to stay as a Tier 4 (General) Student."
He then goes on to deal with the decisions of Adedoyin and Pokhriyal, which he records as having been handed down after the first instance judgment in Behary.
The relevant parts of the provisions of the Rules are set out in the judgment in Behary at paragraphs 75 to 79. Paragraph 245ZX of the Immigration Rules provides as follows:
"To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.
Requirements:
…
(d) the applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C."
Appendix provides at paragraph 10
"A Tier 4 (General) Student must score 10 points for funds. Paragraph 11 then goes on to state when those 10 points will be awarded. So far as relevant it provides that:
If studying in outer London and elsewhere in the United Kingdom
(i) where the applicant does not have an established presence studying in the United Kingdom, the applicant must have funds amounting to the full course fees for the first academic year of the course, or for the entire course if it is less than a year long, plus £800 for each month of the course up to the maximum of nine months.
(ii) where the applicant has an established presence studying in the United Kingdom, the applicant must have funds amounting to the course fees required either for the remaining academic year if the applicant is applying part-way through, or for the next academic year if the applicant will continue or commence a new course at the start of the next academic year, or for the entire course if it is less than a year long, plus £800 for each month of the course up to a maximum of two months.
Those provisions distinguish between an applicant who 'has an established presence studying in the United Kingdom' and one who does not. The funds required for the former are less than the latter."
The central point in this case is the definition in paragraph 14 of – "current" in Appendix C as follows:
"An applicant will have an established presence studying in the UK if the applicant has current entry clearance, leave to enter or leave to remain as a Tier 4 Migrant, Student or as a Postgraduate doctor or dentist at the date of application.
(i) has finished a single course that was at least six months long within the applicant's last period of entry clearance, leave to enter or leave to remain or
(ii) is applying for continued study on a single course where the applicant has completed at least six months of that course."
In refusing permission in this case the decision letter from the Secretary of State stated:
"Therefore, to qualify as having an 'established presence studying in the United Kingdom' and the reduced maintenance (funds) levels, a student must make an application for further leave to remain before their previous entry clearance, leave to enter or leave to remain expires. That is, you must make an 'in-time' application.
You were last given permission to stay as a student until 30 January 2012. Therefore, at the time of your application on 31 January 2012 you no longer had any valid leave to remain in the United Kingdom and do not have an established presence studying in the United Kingdom."
She then went on to deal with the amount shown in the bank statements:
"As your bank statements state that you are in possession of no more than £2,818.12 at any point during that period, you have not demonstrated that you have the level of funds required to be granted as a Tier 4 (General) Student Migrant. It has therefore been decided that you have not met the requirements of the Immigration Rules and no points have been awarded for maintenance."
Mr Malik's argument on this point is summarised by the Learned Judge in Behary at paragraphs 106 to 108 and rejected. The same arguments were made today. Mr Malik's submission in this case is that the Learned Judge's approach to the proper use of the guidance note in the construction of paragraph 14 was wrong in the light of the decisions in Adedoyin and Pokhriyal. In Adedoyin the Court of Appeal was considering the construction of rule 322(1A) of the Immigration Rules and the meaning of false representation. At paragraph 65 the issue was succinctly summarised as whether the word "false" had the meaning of "incorrect" or the meaning of "dishonest".
In paragraph 66 Rix LJ in giving the judgment to the court said:
"It seems to me therefore that there is an open choice as to the meaning to be given to 'false' in the relevant rules."
At paragraph 70, which was relied on by Mr Malik, he said this:
"…it seems to me that, in a situation where a word such as here 'false', has two distinct, and distinctively important meanings, there is a genuine ambiguity which makes it legitimate, in construing Rules which are expressions of the executive's policy, to consider what the executive has said, publicly, about its rules. Clearly, what a minister says in Parliament, expressed as an assurance, and especially on the occasion of a debate arising out of the tabling of amended rules, is of particular, and may be of decisive, importance (just as the DP 5/96 policy was effectively changed by an announcement in Parliament, see NF (Ghana) above). In such a situation of genuine ambiguity, moreover, it seems to me that, perhaps exceptionally, it is even possible to get some assistance from the executive's formally published guidance, such as RFL04 or the relevant IDI. In saying that I do not that I that I am departing from the observations of Lord Brown in Mahad, cited above,...
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The Queen (on the application of Sandia Behary) and Another v Secretary of State for the Home Department
...argument: [2013] EWHC 3575 (Admin). In the case of Ullah, Judge Taylor, sitting as a judge of the High Court, took the same view: [2015] EWHC 337 (Admin). 7 The ordinary meaning of the word "current" does not encompass "recent" or latest". Mr Malik does not submit to the contrary. "Has cu......