The Queen (on the application of Sandia Behary) and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Sir Stephen Richards,Lady Justice Hallett |
| Judgment Date | 06 July 2016 |
| Neutral Citation | [2016] EWCA Civ 702 |
| Docket Number | Case No: C4/2014/0081 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 2016 |
[2016] EWCA Civ 702
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
UPPER JUDGE ANDREW GRUBB
HER HONOUR JUDGE TAYLOR
CO/7768/2012 and CO/985/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett
Lord Justice Burnett
and
Sir Stephen Richards
Case No: C4/2014/0081
and
Mr Zane Malik & Mr Darryl Balroop (instructed by Malik Law Chambers Solicitors) for the Appellants
Ms Susan Chan (instructed by Government Legal Department) for the Respondent
Hearing dates: 8 th June 2016
Approved Judgment
At the conclusion of the argument we announced that the appeals were dismissed for reasons which would follow. These are my reasons for joining in that decision.
The meaning of "established presence"
The appellants have no connection but their appeals have been listed together because they raise a common issue about the meaning of the term "established presence" in Appendix C to the Immigration Rules ("the Rules"). There are additional grounds not common to the appellants.
Each appellant was lawfully in the United Kingdom pursuant to leave as a Tier 4 General (Student). They applied for further leave to remain on the day after their extant leave had expired. At the dates of their respective applications paragraph 245ZX of the Rules provided:
"To qualify for leave to remain as a Tier 4 (General) Student under this rule, an application 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. …"
Those requirements include the need to demonstrate a certain level of available funds under Appendix C. The extent of those available funds depends upon whether the applicant has "an established presence" in the United Kingdom, or not. If he has an established presence the sum needed is much lower. Each of these appellants was able to demonstrate the funds needed for a person with an established presence in the United Kingdom, but fell far short for someone without that presence. The Home Office concluded that neither had an established presence because the applications were made after the expiry of their extant leave. Paragraph 14 of Appendix C defined the term:
"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 and 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."
The appellants satisfied the subsidiary criteria. Their applications failed because the Home Office took the view that neither had current leave to enter when the application was made for the simple reason that their leave had expired.
One consequence of making the application for further leave after the extant leave had expired is that neither of the appellants before us was able to exercise a right of appeal to the First-tier Tribunal. That is why these cases have proceeded by way of judicial review, and proceeded very slowly.
Mr Malik's "key submission" now, as it was below, is "that the expression 'current' at Paragraph 14 … on a proper construction, means 'recent' or 'latest'". In the case of Behary, Upper Tribunal Judge Grubb, sitting as a Deputy High Court Judge, rejected that 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).
The ordinary meaning of the word "current" does not encompass "recent" or latest". Mr Malik does not submit to the contrary. "Has current … leave" would appear to be referring to an existing state of affairs. He also accepts that the reference to completing a course "within the applicant's last period of entry clearance, leave to enter or leave to remain", in the first of the two subsidiary criteria, provides a contrast with current entry clearance. At first blush it would appear that if his suggested interpretation of the word "current" were right, it should have been used again for the purposes of consistency in subparagraph (i).
It is uncontroversial that Rules should be construed sensibly according to the natural meaning of the words used to discern what the Secretary of State must be taken to have intended, and Parliament approved. They are not to be subjected to strict rules of statutory construction. Furthermore, the meaning is not to be discovered from the Immigration Directorate's Instructions ("IDI"), or guidance documents to officials: see para [10] of Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 per Lord Brown of Eaton-under-Heywood, with whom all other members of the court agreed.
Mr Malik submits that the meaning of "current" is ambiguous because in many places elsewhere in the rules they refer to "valid entry clearance" (although we were not shown any examples of "valid leave to enter" or "valid leave to remain", still less "valid entry clearance, leave to enter or leave to remain").
To my mind there is nothing ambiguous about the language of Paragraph 14 of Appendix C. It is using "current" in its ordinary way. It requires the applicant concerned to have the relevant leave (or entry clearance) at the date on which he makes his application for leave. If at the date of application that leave has expired, it is not current.
The purpose in Mr Malik seeking to persuade us that the meaning of "current" was in some way ambiguous was to enable him to seek to rely upon a limited exception to the statement of Lord Brown that an IDI could not be prayed in aid to construe the Immigration Rules. Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564 concerned the interpretation of the words "false representations" in the Rules and whether false meant "wrong or incorrect" or "lying, deceitful etc". Since the consequence of making false representations was the refusal of leave, it was of importance to know whether the rule was directed at factual inaccuracy or knowing deceit. Guidance provided to officials suggested that deceit was the test. There was ministerial confirmation to the same effect. In para 65 of his judgment Rix LJ indicated that there was an open choice for the court to decide whether false meant "incorrect" or "dishonest". He favoured "dishonest" for a number of reasons. In para 70 he said:
"… in a situation where a word … has two distinct, and distinctively important, meanings, there is genuine ambiguity which makes it legitimate, in construing Rules which are expressions of the executive's policy, to consider what the executive had 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 the amended rules, is of particular, and may be decisive, importance. … 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 … In saying that I do not think I am departing from the observations of Lord Brown JSC in Mahad's case."
A similar approach was adopted in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at paras [42] and [43].
In the absence of any genuine ambiguity in the language of paragraph 14 of Appendix C, there is no basis to go to extraneous materials as an aid to construction. That said, the way in which the guidance on which the appellants wished to rely was produced, illuminates a hazard in dealing with material available on the National Archive website, itself archiving not hard copy documents but materials available on departmental websites.
Mrs Behary made her application on 30 November 2011, and Mr Ullah his on 31 January 2012. The appellants' advisers at some stage searched the National Archive for past electronic versions of Home Office guidance on the meaning of "established presence". The fruits of those searches were available at the hearings at first instance in October 2013 and January 2015 respectively, although they were not referred to in the grounds. They had thrown up guidance available at some stage on the UK Border Agency website. The National Archive website suggested that the guidance had been "captured" on 8 December 2011. A small part of it has been produced which includes a section headed "How much money do you need?" and then "Do you have an 'established presence'?" Within that section is the statement:
"Any student (including a postgraduate doctor or a student union sabbatical officer) has an established presence studying in the UK if they:
Completed a single course of study lasting at least 6 months during their most recent permission to stay in the UK; or
Are applying to continue studying on a single course in the UK, of which they have completed at least 6 months.
Additionally, their current or most recent permission to stay must have been:
Under Tier 4; or
As a student under the former Immigration Rules that were in force until 30 March 2009; or
As a postgraduate doctor or dentist."
It is immediately apparent that this formulation is not consistent with paragraph 14 of Appendix C in the form applicable at the time of the applications made by these...
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