Upper Tribunal (Immigration and asylum chamber), 2018-10-26, [2018] UKUT 427 (IAC) (R (on the application of Prathipati) v Secretary of State for the Home Department (discretion – exceptional circumstances))
| Jurisdiction | UK Non-devolved |
| Judge | The Honourable Mr Justice Kerr |
| Status | Reported |
| Date | 26 October 2018 |
| Published date | 14 December 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 10 October 2018 |
| Subject Matter | discretion – exceptional circumstances |
| Appeal Number | [2018] UKUT 427 (IAC) |
R (on the application of Prathipati) v Secretary of State for the Home Department (discretion – exceptional circumstances) [2018] UKUT 00427 (IAC)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Leeds Combined Court Centre,
1, Oxford Row, Leeds LS1 3BG
Judgment handed down at:
Civil Justice Centre,
1 Bridge Street West
Manchester M60 9DJ
Heard on: 10 October 2018
Handed down on: 26 October 2018
BEFORE
THE HONOURABLE MR JUSTICE KERR
Between
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SNEHA SUDHA PRATHIPATI |
Applicant
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and |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Respondent |
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The Applicant appeared in person
Mr Colin Thomann (instructed by Government Legal Department) for the Respondent
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The Secretary of State has a discretion to allow an application for leave to remain to succeed even if made outside the 28 day period of grace referred to in paragraph 319C(j) of the Immigration Rules, provided that supporting evidence of exceptional circumstances is produced at the same time as making the application. The temporal requirement must, to avoid unfairness and absurdity, be read as subject to the caveat that it cannot rigidly be applied if ignorance of what constitutes the exceptional circumstances makes it impossible to comply with that requirement.
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The efficacy of administrative review as an alternative remedy to judicial review depends on the ability of reviewers to detect and reverse decisions flawed by error at the initial stage. The more narrowly the remedy is circumscribed, the greater the risk that it may fail to do so.
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APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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THE HONOURABLE MR JUSTICE KERR:
Introduction:
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I am the seventh judge to consider this claim for judicial review of the refusal of the respondent on 21 August 2015 (upheld on administrative review on 17 September 2015) of the applicant’s application for leave to remain as the unmarried partner of a Tier 2 Migrant. The delays that have beset this case occurred because permission to apply for judicial review was at first refused at an oral hearing but was eventually granted by the Court of Appeal over two years later.
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The Court of Appeal referred the case back to this tribunal for the substantive hearing, which took place before me in Leeds on 10 October 2018. The parties agreed that the applicant’s application for leave to remain was considered on a basis that was unsatisfactory in two respects. First, the applicant was unaware that she would be regarded as an overstayer, because a decision of this tribunal did not reach her. Second, documents sent to the respondent, on which she relied, were not considered by the respondent.
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The question for me is whether those two points, or either of them, make the respondent’s decision unlawful, as contended by the applicant who represented herself with eloquence and courtesy; or whether, as contended by the respondent ably represented by Mr Thomann of counsel, those shortcomings in the decision making process did not result in any unfairness to the applicant and do not make the decision challenged unlawful.
Facts:
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The applicant is an Indian national, born in June 1990. She came to this country with a Tier 4 (General) Student Migrant visa, valid until 30 October 2013 and then extended until 31 May 2014. The day before it expired she applied for a further extension, on the same basis, but that was rejected in July 2014, with a right of appeal which she exercised.
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The First-tier Tribunal (FTT) rejected her appeal, in a written decision dated 24 November 2011. The judge decided that the applicant had not made her case that she had adequate funds; a loan agreement she produced was not in her name. Her case had not been adequately made. On 2 December 2014, she applied for permission to appeal against that decision to the Upper Tribunal (Immigration and Asylum Chamber).
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While awaiting the outcome of that application, on 28 January 2015 she moved from [ ], Newcastle-upon-Tyne, to different accommodation at [ ], also in Newcastle. The same day, her then solicitors wrote to the FTT by fax, notifying the change of address. An authority to act signed by the applicant was enclosed. The fax number used (ending 987) was the one designated as “IAFT4 (Permission to Appeal)” at the time, in the FTT’s guidance for users.
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On the same day, the solicitors emailed the customer services email address of the “IAC” (Immigration and Asylum Chamber) of the FTT, notifying the change of address but without the signed authority to act. On 2 February 2015, IAC emailed back saying that the request to log the change of address could not be processed without a signed written notification of authority to act as legal representative. The email also gave an address and a different fax number, ending 895, designated as for “General Correspondence”.
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On 3 February 2015, the solicitors repeated their request, enclosing the signed written authority to act but sending it to the “Permission to Appeal” fax number, ending 987. They did not, as they should have done, fax that letter and the signed written authority to the “General Correspondence” fax number, ending 895. So the change of address was not registered with the FTT.
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Then, on or before 19 February 2015, the FTT refused the application for permission to appeal. Notification of the decision was sent by post to the applicant’s old address at [ ], together with reasons for the decision which I have not seen. The applicant did not receive the notification letter, having moved to [ ]. The letter also mentioned the right to apply to the Upper Tribunal for permission to appeal.
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The FTT’s decision has been assumed by everyone in this case to have been validly promulgated and effective and binding on the applicant from 19 February 2015, even though the applicant knew nothing about it until months later. The decision was, indeed, sent to the address at [ ] which was the only address accepted by the FTT as an address of record for the applicant.
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On that assumption, on expiry of the time limit for making a further application to the Upper Tribunal for permission to appeal, the applicant became “appeal rights exhausted”. The time limit expired on 6 March 2015. The consequence of that was she was, and is, regarded by the respondent as having become an “overstayer” from that date. She did not know this at the time and nor did her solicitors.
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On 18 June 2015, having heard nothing, the solicitors emailed the IAC customer services email address referring back to the previous correspondence, expressing concern that “you may have sent correspondence to our client’s previous address” and asking what was the status of “our client’s appeal (IAFT-4) and when we can expect to receive a decision on same”. That email was not copied to the respondent. The FTT did not reply to it.
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The applicant, not knowing she would be regarded as an overstayer, decided her best strategy was to withdraw her application for permission to appeal and instead to make a fresh application for leave to remain as the unmarried partner of a Tier 2 Migrant. On 14 July 2015, her solicitors wrote to the FTT, again to the fax number ending 987, saying they had “instructions to withdraw her appeal with immediate effect”. This must be taken to refer to the application for permission to appeal that had already been refused.
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There is no evidence that the FTT ever responded to this request, which from its perspective would be academic since the application had already been refused, though it was evident from the request to withdraw that the solicitors were unaware of that. The applicant, under the same misapprehension, applied on or about 12 July 2015 for leave to remain as the unmarried partner of a Tier 2 Migrant. She made an appointment to attend personally, paying a fee for the “premium service”.
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On 15 July 2015, she attended the appointment with her partner. She met the respondent’s case worker, Mr Christopher Duncan Wood. She produced documents to show a subsisting relationship with her partner of at least two years’ duration. These are the documents in the first exhibit to her witness statement. The documents were a tenancy agreement, bank statements, joint account bank statements, utility bills, photographs, letters, appeal letters and the solicitors’ letter seeking to withdraw her appeal.
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The case worker went through the documents and asked the applicant to provide further documents, to show a genuine and subsisting relationship covering the period from February to August 2013. He said nothing about the applicant being an overstayer. I infer that he may not have known about the FTT’s decision and may not have checked the position at the time. But the respondent...
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