The Queen (on the application of Zahid Hafeez) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 02 May 2014 |
| Neutral Citation | [2014] EWHC 1342 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 2014 |
| Docket Number | Case No: CO/13016/2012 |
[2014] EWHC 1342 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/13016/2012
Abdurahman Jafar (instructed by Lee Valley Solicitors) for the Claimant
Mathew Gullick (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 3 April 2014
Introduction
The Claimant challenges various decisions of the Secretary of State for the Home Department ("SSHD") to refuse the Claimant's application for leave to remain as a Tier 1 (Post-Study Work) Migrant. This judgment, in addition to addressing the merits of the claim, focuses also upon the circumstances when a court should, when construing a decision containing typographic or transcription or other obvious errors read the Decision in a way which ignores those errors and focuses upon pith and substance not form. Further, it addresses the circumstances when a court should refuse to entertain arguments because they represent an abuse of process.
The Facts
The Claimant is a national of Pakistan born on 14 th May 1979. He was granted leave to enter the United Kingdom as a student on 24 th April 2005 with permission to remain until 31 st August 2006. Leave to remain was thereafter extended periodically, the last extension being due to expire on 18 th May 2011.
At some point prior to expiry of his leave to remain he applied to City of London College to undertake an MBA under the auspices of the University of Wales, as the degree awarding body. The course commenced on 9 th May 2011, and formally completed on 26 th January 2012.
On 11 th May 2011 the Claimant sought further leave to remain as a Tier 4 (General) Student migrant in order to undertake the MBA. His leave to remain, which had been due to expire on 18 th May, was extended under section 3C of the Immigration Act 1971 pending the determination of the application. This application was refused on 22 nd July 2011 ("the 2011 Decision") upon the basis that under the Points Based System ("PBS") in the Immigration Rules ("IR") he had claimed 30 points for his "Confirmation of Acceptance for Studies" ("CAS"). However the Defendant concluded that she was not satisfied that he was competent in the English language at the required minimum level or that he met alternative requirements. The reasons included the following:
"You are a national of Pakistan which is not a majority English-speaking country as defined in Appendix A of the Immigration Rules. You have not obtained an academic qualification at least equivalent to a UK Bachelors Degree taught in a majority English-speaking country as defined in Appendix A of the Immigration Rules. You did not complete a course of study in the United Kingdom for which you were granted permission to stay as a Tier 4 (Child) Student Migrant or whilst under 18 years old under the student rules that were in force before 20 March 2009.
Your CAS assigned on 09 May 2011 is to study Master of Business Administration at City of London College who are a Recognised Body. However although you meet an exemption for the English Language Test requirement the sponsor still needs to state on the CAS how they have assessed your English Language Skills B2 level in all four components. Your Tier 4 sponsor has not detailed on your CAS how your English language has been assessed at B2 level in all four components. You have not provided any documentation to show that you have obtained a academic degree qualification equivalent to a Bachelors Degree (professional and vocational qualifications are not acceptable). Therefore you have not met the requirement and no points have been awarded for the CAS."
Since the application was made prior to the Claimant's existing period of leave expiring, the Claimant had a statutory right of appeal under Part 5 of the Nationality, Immigration and Asylum Act 2002 and, accordingly, he appealed to the First Tier Tribunal ("FTT") against the refusal of his application. His leave to remain was further extended under section 3C of the 1971 Act pending the outcome of that appeal.
A hearing of the FTT was convened for 10 th August 2011. However, without explanation at the time and without any form of an application for an adjournment, the Claimant did not attend and the FTT Judge decided to proceed to consider the appeal upon the papers. The Judge dismissed the appeal because the CAS was not in evidence before him nor did the CAS checking service document (which was in evidence before the FTT) confirm in the terms required that the Claimant had a knowledge of English equivalent to level B2 of the CEFR. Accordingly the Judge concluded that he could not be satisfied that the Claimant was entitled to the 30 points that he claimed for particular attributes under the PBS and thus met the requirement of the rules for the grant of the application that he had made. With the benefit of hindsight it is now known that this decision was correct: see paragraph [42] below.
In view of this the Claimant applied to the FTT for permission to appeal to the Upper Tribunal ("UT") but this application was refused on 27 th October 2011 by FTT Judge Macleman. The Claimant sought permission to appeal upon the basis that he failed to attend the FTT hearing because he was ill. Judge Macleman was however sceptical. He pointed out that the Claimant had not produced any evidence of an inability to attend either before the FTT or as part of his application for permission to appeal. He also observed that whilst the Claimant stated that he had evidence to produce in relation to the merits of the case this was tendered far too late. He concluded that the Claimant had not made any requests for an adjournment of the FTT hearing, he had no good reason for not attending, and he had " had his opportunity to make his case, both to the Respondent and to the tribunal".
No application was made by the Claimant for permission to appeal to the Upper Tribunal within the time stipulated for applications for permission to appeal.
The Claimant's leave to remain, which had been extended under section 3C of the 1971 Act whilst his appeal was pending, therefore expired in November 2011. However, he did not depart the United Kingdom. He completed his MBA and the course ended on 26 th January 2012.
In February 2012 the Claimant made an out of time application to the UT for permission to appeal. As I will explain later the Claimant advanced, as part of his case on permission to appeal out of time, evidence showing that the Claimant's student colleagues on the MBA course had been granted leave to remain upon the basis that, unlike him, their qualifications had been accepted by the FTT as valid in respect of the requirement for knowledge of the English language. He explained that the SSHD had not appealed the decisions. The Claimant's application was however refused on 12 th March 2012 by Upper Tribunal Judge Warr. He not only viewed the failure to attend the FTT hearing and the subsequent delays as reprehensible but he concluded that he was un-persuaded that the first instance FTT Judge even arguably erred in law in deciding as he did upon the material before him. The Judge therefore declined to admit the application out of time for permission to appeal.
The Claimant instructed his solicitors, Lee Valley Solicitors, to seek judicial review of the UT decision but they advised him against that course of action. His solicitors, instead, advised him to submit a fresh application to the Home Office. On 27 th March 2012 the Claimant, through his solicitors, made a fresh application upon the basis that the Claimant was now an eligible candidate to be granted leave to remain as a Tier 1 (Post-Study Work) Migrant. As part of this application the Claimant now relied on the award to him of his MBA in March 2012. He also raised the issue of discrimination and discretion. In particular, he argued that his colleagues on the MBA course were in exactly the same position as him and it was discriminatory to have permitted them to remain but to exclude him.
On 4 th September 2012 the application was refused ("the 2012 Decision").
In order for the Claimant's application for leave to remain as a Post-Study Work Migrant to have been accepted the Claimant needed to obtain 75 points under Appendix A (Attributes) of the IR. Appendix A awards points for qualification (20 points available); institution of studies (20 points available); immigration status in the UK during period of study and/or research (20 points available); and date of obtaining the eligible award (15 points available).
In relation to immigration status IR 245FD states as follows:
"To qualify for leave to remain as a Tier 1 (Post-Study Work) Migrant, an application must meet the requirements listed below. Subject to paragraph 245FE(a)(i), if the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirement:
(a) the applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal immigrant."
More specifically the relevant rules in force (Table 10 to Appendix A to the IR) made clear that the attributes which an applicant was required to have included the following in relation to the immigration status during the prior period of study:
"The applicant's period of UK study and/or research towards his eligible award were...
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