R V Mashud Kobir - Asher and Tomar - London Best Solicitors and Law Firm

Does the UKBA have any discretion to consider an application under the Points Based System if the applicant failed to meet the strict requirements of the Agency’s “policy guidance”? If it does, when will it be appropriate for this discretion to be exercised? – See more at: http://www.gherson.com/news-articles/discretion-pbs-2782/#sthash.4wejnQN4.dpuf
Does the UKBA have any discretion to consider an application under the Points Based System if the applicant failed to meet the strict requirements of the Agency’s “policy guidance”? If it does, when will it be appropriate for this discretion to be exercised? – See more at: http://www.gherson.com/news-articles/discretion-pbs-2782/#sthash.4wejnQN4.dpuf
Does the UKBA have any discretion to consider an application under the Points Based System if the applicant failed to meet the strict requirements of the Agency’s “policy guidance”? If it does, when will it be appropriate for this discretion to be exercised? – See more at: http://www.gherson.com/news-articles/discretion-pbs-2782/#sthash.4wejnQN4.dpuf

These kinds of questions frequently arise in challenges by judicial review to the UKBA’s decisions to refuse applications for leave to remain where the person refused has no right of appeal to the First Tier Tribunal, or where the UKBA has rejected the application as “invalid”.

The facts considered by Justice Belinda Bucknall in R (on the application of Mashud Kobir) v Secretary of State for the Home Department [2011] EWHC 2515 (Admin) which are summarised below are not unusual.

The Claimant had had leave to remain in the UK as a student since 2002. He lived here with his wife, who had lawfully joined him in 2006, and with their two children, both of whom were born in the UK.

Before his and his family’s leave to remain ran out at the end of May 2009 he applied to the UKBA for further leave to remain, but mistakenly didn’t include enough money for the fee. In relation to this in her judgment the judge notes that the Tier 4 of the Points Based System Policy Guidance with which the Claimant himself had to comply in respect of his own application was 50 pages long, the Guidance relevant to his wife and children’s applications was 21 pages long.

Application fees are payable in respect of each application, and while the Claimant paid the necessary amounts for himself (£357) and for his wife (£50) he omitted the £50 payable for each of his children’s applications. As the judge also notes the Claimant had correctly worked out both how much money he had to show that he had to meet the Immigration Rules’ requirements for a family like his, and had provided the necessary bank statements to show that he had had this money for a period of 28 days which ended not more than one month before the date of his application.

The UKBA however returned his application stating that it was invalid due to the Claimant’s error in respect of the fees for his children’s applications.

The Claimant immediately resubmitted his application to the UKBA, accompanied by the full fees, but by now (July 2009) his leave to remain had expired. Unfortunately he didn’t supply further bank statements covering a period of 28 days which ended not more than one month before the new date of his application.

Because he had no leave to remain his college could not permit him to study with them, and so he lost the fees he had paid for his course.

The UKBA didn’t consider the Claimant’s second application for over a year. During this time the Agency was, unbeknown to the Claimant, investigating the college at which he wished to study. It began to investigate the college in July of 2009 and suspended its licence in September of 2009, before finally reinstating the licence in June of 2010. The timescale is significant, because as the judge also comments, while the Tier 4 Policy Guidance states that when the UKBA has suspended a college’s licence it won’t consider any outstanding applications for leave to remain until it has either reinstated or withdrawn that licence. That would explain the UKBA’s failure to determine the Claimant’s application from September of 2009, but wouldn’t provide any explanation for not having determined it at any point from July to September.

Finally the UKBA refused the Claimant and his family’s applications in July of 2010, because the bank statements he had given to prove the maintenance requirements of the relevant Immigration Rule didn’t cover a period of 28 days ending not more than one month before the date his application had been submitted. The UKBA pointed out that the Claimant and his family had had no leave to remain in the UK at the time of their application and so they had no right of appeal against the decision. The UKBA said that they should leave the UK without delay.

However the Claimant was determined to complete his studies in the UK and made a third application in September of 2010, having enrolled at a different college. But in November of 2010 the UKBA refused this application, pointing out that the Immigration Rule covering applications of this kind required that the applicant was not going to be studying on a course which commenced more than one month after his or her leave to remain expired. For the Claimant, this would have meant that his course had to commence no later than the end of June 2009.

The Claimant sought judicial review. The first consequence of this was that the UKBA withdrew its decision of November 2010, and then re-refused it on the basis that the Claimant had not shown that he had sufficient funds to support his family because he didn’t have an “established presence” in the UK. Tier 4 General Students have an established presence in the UK if they have been studying for at least 6 months before their applications for leave to remain. Those who don’t have an established presence have to show that they have far more money than those who do have an established presence.

Amending his judicial review application the Claimant pointed out that if the UKBA had decided his second application promptly he would in all probability have been able to show that he had been studying in the UK for more than 6 months at the time of his third application.

It’s clear from this sad tale that it is not an easy thing at all to get an application under the points based system right and it’s perhaps worth remembering at this stage that difficulties like those facing the Claimant have been recognised by the senior courts. In AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 Lord Justice Longmore noted that:

“I am left perplexed and concerned how any individual whom the Rules affect (especially perhaps a student, like Mr A, who is seeking a variation of his leave to remain in the United Kingdom) can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance, funded by the taxpayer, that justice can be done.”

Judge Bucknall noted that all of the UKBA’s decisions had been lawful, but quashed the decision on the basis that the agency had failed properly to exercise its discretion. His case was different from others, like R on the application of Walker v. SSHD [2010] EWCH 2473 (in which the Claimant had not submitted a photograph with her application, which had therefore been rejected) because, most importantly, there had been no explanation for the UKBA’s not having considered the Claimant’s application between when it was submitted (in July of 2009) and when the agency suspended the Claimant’s college’s Tier 4 licence (in September of 2009). If the agency had considered the application at this time they would have refused it because of the bank statements but the Claimant would have been able to correct this promptly.

Secondly, the Claimant’s immigration history was impeccable, and he had simply made an understandable mistake.

The Judge’s recognition that the UKBA continues to have a discretion is important. The perceived absence of discretion within the points based system regime has become one of its trademark features – and this is a welcome reminder that the Secretary of State always retains a discretion. The Judge recalled Mr Justice Sullivan’s (now Lord Justice Sullivan) remarks in R. on the application of Teisha Forrester v. Secretary of State for the Home Department [2008] EWHC 2307, in which he said that the Secretary of State’s discretion must be exercised with a little common sense and humanity.

Interestingly, it may actually be the case that the Secretary of State’s decision in this case was unlawful as well due to its not being taken in accordance with UKBA policy. The existence of an undisclosed policy of “evidential flexibility” operated by the UKBA since August of 2009 has recently come to light.

The policy was referred to in a report prepared by the National Audit Office entitled “Immigration – the Points Based System – Work Routes”, which came out in March of 2011. It described the policy as follows:

“In 2009-10, the Agency rejected some 8 per cent (8,500) of in-country applications 2.13 and refused some 12 per cent (23,800) of all applications. From our review of cases, the commonest reason for refusal, affecting 22 of the 43 refusals in our sample, was the applicant’s failure to provide sufficient information or supporting evidence. The volume of errors and omissions by applicants led the Agency, in August 2009, to introduce a policy of ‘evidential flexibility’ which allows caseworkers to go back to applicants for missing documentation or to correct minor errors. The Agency has not, however, evaluated whether the policy is effective or being applied fairly. In response to the Chief Inspector’s findings of a lack of consistency in the implementation of evidential flexibility overseas, the Agency formalised its guidance to overseas posts in February 2011. We also found inconsistency of approach in Sheffield however. In addition, the Agency allows only three working days for applicants to submit extra documents. Caseworkers told us that documentation is frequently received after the application has been refused but the Agency was unable to quantify this.”