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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Afzaal, R (on the application of) v Secretary of State for the Home Department  EWHC 2215 (Admin) (09 July 2014)
Cite as:  EWHC 2215 (Admin),  WLR(D) 313
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the High Court)
| THE QUEEN
on the application of
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ben Lask (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 1st May 2014
Crown Copyright ©
Mr Robin Purchas QC:
a) that there was no valid condition imposed on the original leave to enter and so no breach (ground 1);
b) that the evidence provided of available funds was sufficient because the Claimant had an established presence in this country (ground 2);
c) that the Secretary of State acted unfairly in refusing the application (ground 3); and
d) that the Secretary of State failed to exercise her discretion (ground 4).
a) that there was no valid condition imposed on the original entry clearance because no condition had been specifically imposed to prevent study at another institution so that there was no relevant breach; and
b) that in fact the Claimant had posted the application on the 10 May 2012 and therefore it was deemed to have been made on that date; in consequence the Claimant had an established presence in this country and the maintenance requirement was for funds of £5,000 to be shown to be available, which the Claimant had done.
Ground 1 - No study condition
Legal framework and guidance
"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen ... (b) he may be given leave to enter the United Kingdom (or when already there leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely:
a. a condition restricting his employment or occupation in the United Kingdom;
(ia) a condition restricting his studies in the United Kingdom;
b. a condition requiring him to maintain and accommodate himself and any dependants of his without recourse to public funds;
c. a condition requiring him to register with the police;
d. a condition requiring him to report to an immigration officer or the Secretary of State; and
e. a condition about residence.
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom for persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances ...."
"Entry clearance will be granted subject to the following conditions:
a. no recourse to public funds;
b. registration with the police if this is required by paragraph 326 of these rules;
c. no employment (subject to specified exceptions);
d. no study except (certain specified exceptions including supplementary study)".
"Subject to article 6(3), an entry clearance which complies with the requirements of article 3 shall have effect as leave to enter the United Kingdom to the extent specified in article 4 but subject to the conditions referred to in article 5."
"(1) Subject to paragraph 4 an entry clearance shall only have effect as leave to enter if it complies with the requirements of this article.
(2) The entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom.
(3) The entry clearance must be endorsed with:
(a) the conditions to which it is subject; or
(b) a statement that it is to have effect as indefinite leave to enter the United Kingdom.
"An entry clearance shall have effect as leave to enter subject to any conditions, being conditions of a kind that may be imposed on leave to enter given under section 3 of the Act, to which the entry clearance is subject and which are endorsed on it."
"Conditions: If your visa allows you to work it will say so here. If you are sponsored to work or study in the UK, your sponsor number will be included here. If your visa says 'No recourse to public funds' you are not allowed to claim benefits or apply for government funded accommodation. You should check whether you are allowed to access NHS healthcare, as other than in an emergency, many visitors are not."
"Write a supplementary or official comment or instruction on (a document), esp. on the back, often to extend or limit its provisions; spec. sign (a bill of exchange) on the back to accept responsibility for paying it; sign (a cheque) on the back make it payable to someone other than the stated payee. Also, write (a comment etc) on a document; inscribe (a document) with (a comment etc]; make (a bill etc) payable to another person by a signature on the back."
Ground 2 - Inadequate funding
"The date of application is … the date of posting for postal applications ... you must accept the Postmaster's evidence of the date of posting. If the envelope in which the application was posted was missing or if the postmark is illegible, you must take the date of posting to be at least one day before it was received. You must take the date of processing on the payment contractors' stream sheet as the date that the application was received. In the above situation, there is also accompanying correspondence with the application that matches the likely date of posting, when that date is earlier than the postage date calculated using the above method, you must take this earlier date as the application date. If you are unsure, you must accept the date that is most favourable to the applicant."
Ground 3 - Unfairness
a) The Secretary of State determined the application on the basis of a breach of condition in circumstances where she should have brought the question of breach to the Claimant's attention and sought his response before concluding that it would justify refusal. If she had done so, the Claimant would have explained that he was not aware that he was acting in breach of any condition and that he had been advised by the subsequent sponsor that he did not need to make a new application and that it would notify the Secretary of State. In any event, the Secretary of State was notified that the Claimant had ceased to study at JFC during the currency of the clearance but had done nothing about it. In all the circumstances she had acted unfairly.
b) Mr Nasim also submits that in respect of the date of posting the application for further leave the Secretary of State should have raised the question when the application was made with the Claimant before making her decision. It was clear on the face of the application that the application was on the basis that it was made during the currency of the clearance, that is on the 10 May 2012, and that as a result the Claimant had an established presence in the UK. The date on which it was made was crucial to the success of the application, having regard to the level of funding required, and therefore in the absence of any specific date from the post mark, the fair course to have taken was to raise the matter with the Claimant including whether there was evidence of posting on the 10 May 2012. The failure to do so, while drawing an inference against the Claimant leading to the refusal of leave, was unfair. On the evidence now before the court, the court can conclude confidently that, had that enquiry been made, the Secretary of State would have been given evidence of posting on the 10 May 2012 and it cannot be ruled out accordingly that her overall decision would have been different, whatever conclusion is reached on the breach of condition.
Ground 4 - Discretion