Secretary of State for the Home Department v Jovy Rodriguez
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Sir Stanley Burnton,Lord Justice Pitchford |
| Judgment Date | 20 January 2014 |
| Neutral Citation | [2014] EWCA Civ 2 |
| Docket Number | Case No: C5/2013/2232; C5/2013/0493; C5/2013/1525 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2014 |
[2014] EWCA Civ 2
Lord Justice Pitchford
Lord Justice Davis
and
Sir Stanley Burnton
Case No: C5/2013/2232; C5/2013/0493; C5/2013/1525
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE MARTIN
McCLOSKEY J & UPPER TRIBUNAL JUDGE SPENCER
[2013] UKUT 42 (IAC) (JR)
IA/10184/2012 (MM)
UPPER TRIBUNAL JUDGE RENTON
IA/23138/2012 (FP)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mathew Gullick (instructed by The Treasury Solicitor) for the Secretary of State.
Mr Rembert De Mello and Mr Abid Mahmood (instructed by Douglas Wemyss Solicitors) for the Respondent Rodriguez.
Mr Abid Mahmood (instructed by Douglas Wemyss Solicitors) for the Appellant Mandalia.
Miss Frances Shaw (instructed by Robinson Ravani) for the Appellant Patel.
Introduction
These two appeals by individual applicants and one application by the Secretary of State for permission to appeal (with appeal to follow if permission is granted), which were listed to come on for hearing at the same time, raise a common issue.
The context is this. Each individual applicant was a foreign national seeking leave as a Tier 4 (General) student migrant to remain for the purpose of study in the United Kingdom under the Points Based System ("PBS") contained in Part 6A of the Immigration Rules. Each submitted an application which failed to supply evidence in the form of bank statements, pursuant to the relevant Immigration Rules, sufficient to attract an award of the points needed to satisfy the maintenance funding requirements of Appendix C to the Immigration Rules. The applications were accordingly refused. In point of fact, each applicant had other available funds which — had their details been fully provided with the applications — would have sufficed to satisfy the maintenance funding requirements. Each complains that, instead of refusing their applications, the Secretary of State was obliged to have applied her policy known as the "Evidential Flexibility policy" and should have first contacted them to enable them to remedy the deficiencies in their applications: which they could and would have done.
The common issue thus is whether the Secretary of State was required to afford them such an opportunity before refusing their applications.
On this issue the applicant Jovy Rodriguez failed in the First-tier Tribunal but succeeded on appeal in the Upper Tribunal. The applicant Manish Mandalia failed in the First-tier Tribunal and the point was not (for reasons I will come on to explain) dealt with in the Upper Tribunal. The applicant Falguniben Patel succeeded in the First-tier Tribunal but failed on appeal in the Upper Tribunal.
For all three cases, as was common ground before us, what is primarily in issue is the correctness of the decision and reasoning of the Upper Tribunal in Ms Rodriguez's case. That decision is reported: [2013] INLR 467, [2013] UKUT 42 (1AC). It has, and has had, a potential application for other comparable cases; and we were told that scores of cases potentially may be affected by the outcome of these present appeals. This, apparently, is still so notwithstanding the intervening lapse of time and notwithstanding also that, in the intervening period, the position has become the subject of new Immigration Rules.
Unfortunately matters have also become complicated for procedural reasons.
The complications are that with regard to the application in Ms Rodriguez's case, the Secretary of State had been refused permission to appeal by the Upper Tribunal, in circumstances where the application for permission to appeal was made some 28 days out of time. Further, the Secretary of State has also since applied to adduce evidence — in particular in the form of a substantial witness statement (with exhibits) of a member of the Immigration and Border Policy Directorate — dated 22 August 2013. Ms Rodriguez opposes the application for permission to appeal and also opposes the application to adduce further evidence.
In the case of Mr Mandalia, permission to appeal was granted to the applicant on the papers by Sullivan LJ on 21 May 2013. But the Secretary of State has since applied to set aside that grant of permission of appeal, contending that, in the circumstances which occurred in the Upper Tribunal, this court had and has no jurisdiction to entertain any appeal.
At least in the appeal of Ms Patel, for which permission to appeal was granted on the papers by Moore-Bick LJ on 31 July 2013, no procedural difficulty arises.
Background facts
The background facts and the course of the respective proceedings can be summarised as follows.
(a) Ms Rodriguez
Ms Rodriguez is a national of the Philippines, born on 19 September 1980. She was granted leave to enter the United Kingdom as a student on 15 November 2010 until 1 February 2012. On 31 January 2012 she applied for further leave to remain. Having completed a course in Tourism and Hospitality Management she had been granted admission to the London College of Social and Management Sciences for the purposes of a two year diploma course in Business and Administrative Management. Her application for further leave to remain as a student was by reference to the Tier 4 (General) requirements. The prescribed application form was a lengthy document.
It has at all times been common ground that, in accordance with Appendix C of the Immigration Rules, Ms Rodriguez was required to show possession of not less than £1,200 over the entirety of the necessary 28 consecutive days. With her application Ms Rodriguez submitted, among other things, a bank statement from Lloyds TSB. According to the subsequent findings of the First-tier Tribunal judge, that bank statement covered the period 11 January to 24 January 2012 (stamped on 27 January 2012). However, this may have been an erroneous factual finding because as Mr Gullick, appearing on behalf of the Secretary of State, points out the actual decision letter of the Secretary of State shows that a statement covering at least the full 28 day period had been before the Secretary of State. But more importantly for present purposes, the statement showed a balance of not less than £1,200 for the period, save that in between 20 and 23 January 2012 the balance fell to £903.74.
Ms Rodriguez says that shortly after she submitted the application she received a letter from the Home Office acknowledging receipt. It is perhaps surprising, if such a letter was received, that she did not keep it. Moreover, we were told that there is no record on the Home Office database that such a letter was sent to Ms Rodriguez — although there was produced to us a copy of the letter dated 16 February 2012 sent to Ms Rodriguez relating to a required biometric enrolment appointment. The First-tier Tribunal judge, whilst referring to her evidence on this, made no express finding that she had received such a letter: albeit he found her, in general terms, to be an honest witness. The Upper Tribunal in due course proceeded on the footing that she had received such a letter. Ms Rodriguez was able to produce copies of two such letters apparently sent to other students which she claimed were in the same form as the one she had received. Amongst other things, it was said (we were shown copies of the sample letters provided):
"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. If there is an issue with the fee you have paid, your application will be rejected and details sent to you on how to make an application…"
Her application was refused by decision of the Secretary of State on 21 April 2012 for three reasons. The first two are no longer relevant. The third was to the effect that the bank statement provided (for the period 28 December 2011 to 24 January 2012, as the letter stated) did not disclose possession of the requisite £1,200 over the entire period — there was the shortfall in the period 20 to 23 January 2012.
Ms Rodriguez appealed. She succeeded on two of the grounds in dispute. But she failed on this third ground. The First-tier Tribunal judge, in his determination promulgated on 3 July 2012, found that she had failed to provide evidence in her application to show that she had the required funds of £1,200 for the requisite 28 day period.
In preparation for the hearing before the First-tier Tribunal, Ms Rodriguez had, on 12 June 2012, sought to put in evidence comprising bank statements from the RCBC Savings Bank in the Philippines showing that she had had additional funds totalling nearly £600 in that account during the entirety of the relevant period. But, having regard to s.85A of the Nationality, Immigration and Asylum Act 2002 (as amended), the judge decided that he could have no regard to that. He held that he could, in this respect, only consider the evidence adduced at the time of the application. Nor had such evidence been put in by the time of the decision of the Secretary of State. It is accepted before us that the new bank statements sought to be adduced before the First-tier Tribunal were not admissible by reason of s.85A of the 2002 Act.
Ms Rodriguez also had referred the Tribunal to a letter dated 19 May...
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