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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaur v Secretary of State for the Home Department [2018] EWCA Civ 1303 (24 May 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1303.html Cite as: [2018] EWCA Civ 1303 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN
IA/41118/2014 and IA/41123/2014
IN THE MATTER OF AN APPLICATION FOR PERMISSION TO APPEAL
Strand, London, WC2A 2LL |
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B e f o r e :
Lord Justice Underhill
and
Lord Justice Lindblom
____________________
Charanjit Kaur |
Applicant |
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- and - |
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Secretary of State for the Home Department |
Respondent |
____________________
Mr Nicholas Chapman (instructed by the Government Legal Department)
for the Respondent
Hearing date: 27 March 2018
____________________
Crown Copyright ©
Lord Justice Lindblom:
Introduction
Paragraph 245ZX of the Immigration Rules
"245ZX. Requirements for leave to remain
To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant 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.
Requirements:
…
(d) The applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C.
… ."
Appendix C stated:
"1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must meet the requirements listed below:
(a) The applicant must have the funds specified in the relevant part of Appendix C at the date of the application;
…
(c) If the applicant is applying as a Tier 4 Migrant, the applicant must have the funds referred to in (a) above for a consecutive 28-day period of time;
…
(h) the end date of the … 28-day [period] referred to in … (c) above will be taken as the date of the closing balance on the most recent of the specified documents …, and must be no earlier than 31 days before the date of application.
…
1B. In all cases where Appendix C … states that an applicant is required to provide specified documents, the specified documents are:
(a) Personal bank or building society statements which satisfy the following requirements:
(i) The statements must cover:
…
(3) a consecutive 28-day period of time, if the applicant is applying as a Tier 4 Migrant …
…
…
Tier 4 (General) Students
10. A Tier 4 (General) Student must score 10 points for funds.
… ."
The Secretary of State's decision letter of 25 September 2014
"
- You are required to show living costs of £1,640.00 for yourself, £920.00 for your dependant(s) plus your outstanding course fees of £0.00 as stated on your CAS. You are therefore required to show that you are in possession of £2,560.00 for a consecutive 28 day period to meet the Tier 4 (General) Student maintenance requirements.
- The bank statements with account number ****2024 have not been accepted as evidence of funds because they only show funds between 4 August 2014 and 30 August 2014 and so do not cover the required consecutive 28 day period. While the statements run to 1 September 2014 we cannot take into consideration any funds held after the date of your application."
The decision of the First-tier Tribunal
"2. … The respondent found that the first appellant has to demonstrate she had access to £2,560 for a consecutive 28 days from the 3rd of August 2014 to the 30th of August 2014. The evidence submitted to the respondent, with the application, is that the first appellant had access to the said sum but only from the 4th of August 2014. She was short by one day. Given that the first appellant could not strictly meet the 28 days the respondent refused the applications under para 245ZX(d) of HC395. There are no other issues. It seems to me to refuse applications on the basis of a delay day [sic] is contrary to common sense. The man or woman on the 'Clapham omnibus' will hold such a decision with derision.
3. I remind myself of the judgment in [Forrester v Secretary of State for the Home Department] [2008] EWHC 2307 (Admin) where the High Court found that the respondent "is given a discretion, and she is given a discretion on the basis that it will be exercised with a modicum of intelligence, common sense and humanity. It might be asked, in these circumstances, what possible reason there could have been for not exercising the discretion in this claimant's favour". Equally, I am at a loss to identify the logic behind the respondent's refusal to exercise discretion in the first appellant's favour. I find the respondent's approach to the first appellant's case is 'tick box' decision making and not giving weight to the issues. In my view, a delay [sic] of one day should not have led to the applications being refused.
4. It is for the respondent to exercise discretion in the first instance. It is for this reason I remit the matters to the respondent. For my part I would have allowed the appeals in their entirety had the respondent … exercised discretion and exercised it differently. In these appeals common sense should prevail."
The Secretary of State's appeal to the Upper Tribunal
The decision of the Upper Tribunal
"4. Mr. Kandola [the Home Office Presenting Officer] relied on the grounds of appeal. He submitted that there was no lawful basis for remitting the appeal under paragraph 245XD. There was no discretion under paragraph 245AA regarding evidential flexibility as this was not the case of a missing document. There was no issue of common law fairness or unfair treatment and the appeal should have been dismissed."
"11. I found that the decision involved the making of an error on a point of law. The judge did not have discretion to remit the appeal for failure to meet the requirements of the immigration rules. It is clear from the decision, and it is accepted by the Appellants, that they did not meet the requirements of the immigration rules, as Mrs. Kaur had the funds in her account for 27, not 28 days. The judge remitted the appeals without reference either to Article 8 or having found that the decision was unlawful as being unfair at common law. It is not at all clear from the decision on what basis he remitted the appeals to the Respondent.
12. Article 8 was raised in the grounds of appeal before the First-tier Tribunal but the judge did not go on to consider Article 8. He gave no reasons for his failure to consider the appeals under Article 8, but the issue had been raised by the Appellants in the grounds of appeal before him.
13. I announced that I found the decision involved the making of an error of law. I proceeded to remake the decision."
"26. There is a significant public interest in refusing leave to remain to those who have not satisfied the requirements of the immigration rules. I find, taking into account all of the circumstances of the Appellants, that they have failed to show on the balance of probabilities that the decision is a breach of their rights to a private life under Article 8 or indeed any other rights protected by theHuman Rights Act 1998."
Should permission to appeal to this court be granted?
"(i) The UT was wrong to set-aside the decision; and/or
(ii) Having done so, the UT was wrong to go on to consider the Appeal in relation to the exercise of discretion."
"39. In my view there was no obligation upon the Home Office to consider the grant of leave to remain outside the Rules in Mr Ullah's case. There is an obligation to consider such a grant when expressly asked to do so and, if but briefly, deal with any material relied upon by an applicant in support. Outside cases where there has been a request there may exist, at least in theory, cases where the facts are so striking that it would be irrational in a public law sense not to consider the grant of leave outside the Rules or at least seek clarification from the applicant whether he was seeking such leave. Mr Ullah, who had the benefit of professional assistance, sought leave to remain as a Tier 4 (General) Student. He made no application for leave outside the rules. There is nothing about his circumstances that could engage a public law duty to consider the exercise of the discretion. Moreover, his argument seeks to resurrect the de minimis or near miss argument on which he failed at first instance and, in the face of the recent decision of this court in [KG (India)], which he abandoned in this appeal. The Home Office has expended much energy in recent years to resist attempts by applicants to persuade the courts that there exists a legal principle that a near miss in complying with the Rules in cases such as this should be overlooked. The de minimis argument is a variation upon that theme. Had the Home Office been asked expressly to exercise its discretion outside the Rules, it is to my mind inconceivable that the response would have been positive."
"The First-Tier Tribunal was in legal error in allowing the Appellants' appeal on the basis that [the] Respondent had unlawfully failed to consider the exercise of discretion to allow their applications, because (a) no such discretion existed under the Immigration Rules; and (b) the Applicants had not asked the Respondent to consider exercising her residual discretion outside the Immigration Rules and consequently she was under no legal obligation to do so."
Conclusion
Lord Justice Underhill
Lord Justice Patten