CO/12751/2009 
Neutral Citation Number: [2010] EWHC 2922 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 1 November 2010
 
B e f o r e: 

MR JUSTICE MITTING
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Between: 
THE QUEEN ON THE APPLICATION OF PENGILIANG FU 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Mr S Juss (instructed by G Singh Solicitors) appeared on behalf of the Claimant 
Miss H Stout (instructed by Treasury Solicitors) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE MITTING:  In this claim the claimant challenges the Secretary of State's refusal to treat as valid an application submitted under paragraph 34 of the Immigration Rules for leave to remain as a Tier 4 (General) Student Migrant.  The claimant in fact submitted two applications.  His challenge is brought in respect of the refusal of both of them.  
2.	He was born in China on 16 September 1979 and entered the United Kingdom on 6 June 2000 with entry clearance valid until 11 November.  Thereafter he has studied in the United Kingdom and has done so with the benefit of leave to remain, renewed approximately annually.  The last period of leave to remain expired on 31 May 2009.  Two days before it did, on 29 May he made an application for further leave to remain.  His application was acknowledged on 9 June.  On 18 June the Secretary of State sent a largely pro‑forma letter to him rejecting his application as invalid.  The reason given was expressed against a box in which a cross had been marked: 
"The application or claim must be accompanied by the photographs as specified as mandatory in the application form and/or related guidance notes." 
3.	In the light of the decision of the Court of Appeal in Pankina v the Secretary of State [2010] EWCA Civ 719, it is common ground that there was at the date upon which the relevant Immigration Rules were laid before Parliament no guidance as to the format in which the photographs were to be provided.  Accordingly, the only mandatory requirement was that set out on the face of the form.
4.	The mandatory requirement was: 
"For your application to be valid, it is mandatory to provide the following photographs:
• Two recent identical passport‑sized photographs of yourself with your full name on the back of each one." 
5.	The consequences of failure to comply with mandatory requirements of the rules are set out in rules 34A and C.  34A sets out in relation to photographs what must be provided: 
"34A (vi) Where the application or claim is made by post or courier, or submitted in person: 
 (a) the application or claim must be accompanied by the photographs and documents specified as mandatory in the application form and/or related guidance notes ... 
34C  Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered." 
6.	It is however common ground that there remains a residual discretion in the Secretary of State to accept as valid an application which does not comply in all respects with the mandatory requirements.  One of the issues at the heart of this claim advanced by the claimant is that the Secretary of State should have exercised his discretion on the facts of this case.  There is an issue of fact which is not satisfactorily addressed by the documents filed by the claimant and only inferentially addressed by those filed by the Secretary of State.  In correspondence, the claimant's solicitors asserted that the Secretary of State had rejected the application because photographs of the wrong size had been provided.  No document that I have seen supports that assertion.  The decision letter of 18 June 2009, on which it appears that the claimant principally places reliance to demonstrate it, says no such thing.  As I have already stated, the relevance box ticked was one which asserted that the application had not been accompanied "by the photographs ... specified as mandatory in the application form".  That phrase is capable of indicating either that no photographs were provided, or that photographs were provided but they did not comply with the specification in the application form.  
7.	If the document stopped there, then the latter might be a reasonable interpretation of the response, but the next tick box on the letter against which no cross had been put said: 
"The photographs must be in the format specified as mandatory in the application form and/or related guidance notes." 
That is the box against which a cross would have been put if photographs had been supplied, but they did not comply with the mandatory requirements.  
8.	It is puzzling that the claimant, who must have completed nine or ten forms similar to that in issue here and would have supplied passport‑sized photographs when doing so, did not do so on this occasion.  But he has put in no evidence to claim that he did.  He had the only subsisting copy of the form which he supplied to the Home Office, who of course returned it to him and do not retain a copy.  He could have demonstrated, by producing a copy of that form or even by providing a witness statement in which he said what he had done, that he had indeed supplied photographs, but he has not done so.  Accordingly, the only material that I have upon which I can found a judgment as to whether or not photographs were provided is the decision letter itself.  Its natural, indeed only, meaning is that the application was rejected because no photographs had been provided, not no compliant photographs.  
9.	Accordingly, I approach the questions raised in the claim on the footing that, as a matter of fact, the application form was not accompanied by photographs, which both the rule and the form required to be provided as a mandatory requirement.
10.	A subsidiary point in Mr Juss's argument for the claimant is that the Secretary of State held out to him that, if he submitted photographs after 18 June 2009, at any rate within a short time thereafter, then his application would be treated as having been validly made.  That argument is untenable for the simple reason that it is clear from the documents that the claimant did not simply provide photographs in purported reliance on such an assertion, but actually completed a new application form.  That he did so is demonstrated by the date of the version of the form, which is June 2009, and by the date which it bears, which is 25 June 2009.  Plainly, it is a new and newly completed form.  
11.	At the heart of Mr Juss's submission is the proposition that the claimant has substantially complied with the relevant Immigration Rules, and so his application is capable of being valid and should have been treated as valid.  The foundation for this argument is R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354.  The issue in the case was whether or not an application for permission to appeal made by the Secretary of State but not made in the statutory form was nevertheless a valid application.  There was much debate about whether the requirement was directory or not, and in any event whether there had been substantial compliance with it.  
12.	The appellate Tribunal had held that there had been.  Sedley J quashed the decision and said that the application was a nullity.  The Court of Appeal reversed Sedley J.  The approach of Lord Woolf MR to the consequences of failing to comply with the procedural requirement was set out on page 362G: 
"Any consideration of the significance of not complying with a procedural requirement commences with the language of the instrument containing the requirement." 
13.	In this case, the language of the instrument containing the requirement is paragraphs 34A and 34C of the Immigration Rules (already cited).  The language is unequivocal.  An application which does not fulfil the mandatory requirements of rule 34A is invalid and will not be considered.  The doctrine of substantial compliance, if there is such a doctrine (and I share the doubts of Maurice Kay J expressed in paragraph 11 of his decision in Campbell v Secretary of State for the Home Department [2003] EWHC 2681 Admin), can have no bearing upon that issue.  Rule 34C admits of no other possibility than that failure to comply with a mandatory requirement renders the application invalid unless, in the exercise of discretion, the Secretary of State decides to treat it as valid.  That is a separate question and is not to be determined by the doctrine (if there is one) of substantial compliance.  
14.	Mr Juss puts the claim in an alternative way ‑‑ possibly his preferred way ‑‑ in reliance on a decision of Sullivan J in Forrester v Secretary of State for the Home Department [2008] EWHC 2307 Admin.  She was applying for leave to remain as the spouse of a person present and settled in the United Kingdom under paragraph 284 of the Immigration Rules.  Her application was made in time and accompanied by a cheque.  The cheque was returned unmet by her bank because there were insufficient funds in her account.  A few days later she submitted a second application with a cheque which was met.  There was a mandatory requirement contained in paragraph 34A(ii) of the Immigration Rules that an application be accompanied by the specified fee.  Tendering a cheque which was not met did not satisfy that requirement.  Consequently, the first application was rejected.  
15.	Her second application was rejected on a different ground.  It is a requirement of paragraph 284(1) of the Immigration Rules that when an application for leave to remain is made, the applicant has subsisting leave to remain.  When the claimant made her second application she did not have leave to remain.  Accordingly, her second application, though accompanied by a cheque which was met, was rejected under paragraph 284(1) of the Immigration Rules.  That had a highly significant and adverse consequence for her.  It meant that to make an application which the Secretary of State would be required to entertain under the Immigration Rules, she and her two children had to leave the United Kingdom, return to Jamaica and make an out‑of‑country application.  Consequently, her and her children's Article 8 rights were engaged.  
16.	Sullivan J, in allowing her challenge to the decision to refuse to grant leave to remain, observed: 
"This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity.  Such an approach diminishes, rather than encourages, respect for the policy in question." 
17.	Mr Juss submits that, just as the Secretary of State in Forrester had a discretion to exercise, so he did here.  
18.	Miss Stout, for the Secretary of State, draws my attention to guidance given to officials (Immigration Directorate Instructions) as to how a discretion should be exercised and in what circumstances it should be exercised.  I need not set it out because it is, I believe, common ground that the guidance does not wholly circumscribe the exercise of discretion.  I give a homely example: if in fact the rules effectively provided that passport‑sized photographs with particular characteristics, for example that the photograph must be taken while a spectacle wearer was not wearing spectacles, were valid, then it may well be that the submission of passport‑sized photographs by a spectacle wearer wearing spectacles would call for the favourable exercise of a discretion by the Secretary of State's officials, provided of course that appropriate photographs with the wearer not wearing spectacles were promptly supplied when the error had been pointed out.  But that is not the case here.  
19.	On facts that I have found, the claimant did not provide any photographs at all.  It was not incumbent on the Secretary of State or his officials to give the claimant a second chance to provide photographs.  The rule provided that the application had to be treated as invalid.  This is a tick box system intended to be operated on a mass scale by junior civil servants.  To require them to exercise discretion because of a failure by an applicant to fulfil clear mandatory requirements of the rules would be to undermine the basis upon which the system works.  It would tend to produce even more argument about individual circumstances than do the clear tick box rules.  
20.	Parliament has approved the manner in which the Secretary of State should exercise her ultimate discretion to grant or refuse leave to enter and remain in the United Kingdom by approving the Immigration Rules.  Those rules clearly provide for a tick box scheme.  In those circumstances it is only to be expected that the rules will be applied in the ordinary case automatically without the exercise of careful discretion based on individual facts.
21.	Further, in this case there really was no ground upon which the official who rejected the original application could have exercised a discretion.  The facts are very much on all fours with Walker v Secretary of State for the Home Department [2010] EWHC 2473 Admin, in which the claimant also failed to provide photographs of herself in support of her application for further leave to remain.  As Beatson J observed in the course of his judgment: 
"In this case the application form makes it clear that the photographs are mandatory.  The covering letter states they are provided.  The resubmitted application gives no reason for an exercise of discretion.  Insofar as Mr de Mello's submissions rely on discretion, this is not a case like Forrester's case where the grounds for exercising discretion were before the defendant but the defendant did not exercise it." 
22.	Nor, on the facts of this case, is any Convention Article engaged, as it clearly was in Forrester's case.  All that has happened is that the Secretary of State's officials have performed the duty imposed upon them by rules approved by Parliament, and rejected a non‑compliant application.  To hold on those facts that they were not entitled to do that would, in my judgment, significantly undermine what is intended to be a simple scheme leaving little room for the exercise of discretion when mandatory requirements are not fulfilled.
23.	Accordingly, I reject the principal ground upon which the claimant challenges the Secretary of State's decisions, and hold that the rejection of the first application was lawful and unchallengeable on ordinary judicial review grounds.  
24.	The claimant made a second application on 6 July 2009.  This time the form was accompanied by compliant photographs.  Every requirement but one of the rules was fulfilled.  Unhappily for the claimant, he did not update the bank statements which had accompanied the original application.  They were for the period 20 April to 27 May 2009.  They showed that the claimant had in his account at the date of the original application a sum significantly in excess of the minimum £800 requirement, but by the time that his second application came to be submitted, they were of course out of date.  
25.	Following Pankina, the only operative requirement of the rules as to maintenance were set out in paragraph 245Z(e) of the Immigration Rules, "The applicant must have a minimum of 10 points under ... Appendix C", and under the opening condition of Appendix C, which provides: 
"1.  An applicant applying for entry clearance or leave to remain as a Tier 1 Migrant ... must score 10 points for fines.  
2.  10 points will only be awarded if an applicant ... 
 (b) applying for leave to remain, has the level of funds shown in the table below and provides the specified documents... "
The level of funds is £800.   
"3.  The applicant must have the funds specified in paragraph 2 above at the date of the application ..." 
26.	The remaining qualification "and must also have had those funds for a period of time set out in the guidance specifying the specified documents for the purposes of paragraph 2 above" is inapplicable because there was no such guidance at the time the rules were laid before Parliament.  
27.	Applying all that remains of the requirement to the simple facts of this case, it is obvious that the claimant could not demonstrate to the Secretary of State that he had £800 or more in his bank account "at the date of the application" because the last entry on his bank statement was six weeks before the application was made.  
28.	The Secretary of State would accordingly have been entitled to conclude that the second application was also invalid because the claimant was not able to demonstrate that he satisfied the maintenance (funds) requirement of   Appendix C.  
29.	This tale would not, however, be complete without a twist at the end.  The letter which rejected the application was dated 11 August 2009.  Its second paragraph read: 
"In view of the fact that you have claimed 10 points for funds under Appendix C of the Immigration Rules, but the documents you have provided do not meet the required standard, therefore the Secretary of State is not satisfied that you have achieved 10 points under Appendix C of the Immigration Rules and it has therefore been decided that you have not met the rules to be granted Leave To Remain under Tier 4 (General Student)." 
30.	In the explanatory passage of the letter which sets out what points were claimed and what were awarded, the following appears: "Maintenance (Funds).  Points claimed 10.  Points awarded 10".  Read literally, it looks as though the Secretary of State has decided that, notwithstanding that the bank statements were out of date, ten points would nonetheless be awarded.  Given that the claimant has only to establish under paragraph 245Z that he "must have a minimum of 10 points under Appendix C", the simple answer appears to be that he has, because how else could he get the points other than by way of an award in a letter sent to him by the Secretary of State?  The box in which that award was made, however, goes on to state: 
"The bank statements you have submitted do not meet the requirements because: 
1.  The Lloyds TSB statements you have provided dated 27 May 2009 are dated more than one month prior to the submission of your application." 
31.	Read as a whole, the letter does not award ten points.  Accordingly, tempting though it is in an area of the Immigration Rules governed by box ticking to treat the box as having been ticked when it has been mistakenly ticked, it is not in fact possible to construe this letter as having awarded to the claimant the minimum ten points.
32.	Accordingly, on a point which I raised (Mr Juss adopted it, but the blame for doing so is entirely mine, not his), the claim also fails.  
33.	I would not however wish to leave this case, which has not succeeded, without this observation.  This claimant has plainly satisfied the requirements of the Immigration Rules throughout his stay up until the moment that he made a mistake when submitting his application on 29 May 2009.  The error which he made was a simple mistake.  I do not know how it occurred or why it occurred, but the Secretary of State might, when reconsidering or considering any application made by him in future, take into account that but for a mistake, and nothing more than that, the claimant would unquestionably have been entitled to have been granted, and would have been granted, leave to remain to pursue his course of studies.  
34.	Miss Stout, for the Secretary of State, has made an express concession on instructions that the decision about the second 6 July application should be quashed because the Pankina issue is raised in respect of it, and the Secretary of State will reconsider her decision in consequence.  I hope that that is not merely a narrow reconsideration based just on precise compliance with the Immigration Rules.  
35.	I hope that the claimant will provide to the Secretary of State up‑to‑date evidence of his continuing to satisfy the maintenance (funds) requirement of Appendix C, and that, if he does so, either the original application of 6 July 2009 or a new one (if the Secretary of State requires him to make one) will be properly and favourably considered.
36.	MR JUSS:  My Lord, I am instructed to make an application for leave to appeal to the Court of Appeal.
37.	MR JUSTICE MITTING:  On what ground? 
38.	MR JUSS:  On the basis that, given your Lordship's finding that the error he made was a simple mistake, discretion clearly should have been exercised in his favour on the Forrester principles.
39.	MR JUSTICE MITTING:  I do not, I am afraid, think it raises a question of law, nor do I think it is one which is likely to succeed.  I do not grant your application.
40.	MISS STOUT:  My Lord, I am instructed to make an application for costs.  I make it on this basis: the Secretary of State has been successful today on the matters that were advanced before your Lordship.  The concession made by the Secretary of State was in relation to only part of the case, and it was not, as your Lordship has heard, on the basis that it is thought the claimant's claim would have succeeded.  In my submission, it would not have succeeded.  So the fact that the concession was made should not be held against the Secretary of State in relation to the usual rule that the Secretary of State should have her costs, having successfully defended the claim for judicial review.  
41.	Moreover, the claimant's representatives did press on today with this hearing and, as your Lordship may know, of course those who attend on behalf of the Secretary of State for this sort of hearing are not on a brief fee.  The costs are not fully incurred at the start of the hearing.  We have had at least a couple of hours of wasted time on behalf of the Secretary of State for which the claimant might properly reimburse the Secretary of State.  
42.	I would also make this point: essentially the outcome of these proceedings has been precisely what the claimant could have done at any point since starting the claim, which is that, in effect, he needs to make a new application which will be considered by the Secretary of State.  The claimant could have done that at any point and short‑circuited these proceedings in their entirety.  Instead, he has pressed on with what your Lordship has found to be a wrong claim, an unsuccessful claim, and on that basis I think the Secretary of State should be entitled to her costs in the usual way.  
43.	MR JUSTICE MITTING:  Mr Juss? 
44.	MR JUSS:  My Lord, having lost in a substantive hearing, I would not normally say that I could resist that, but I do on this occasion say that I do and should, simply because the only reason we have lost, my Lord, is because we were unable to provide evidence that the application was lodged with the two photographs, and that is a brand new point that only arose this morning.  In our heart of hearts I think we all think that the application must have been accompanied by those two photographs because all previous eight ones were, and he is not a person who is entirely naive as to that fact.  The plain fact is we were not able to produce that, and it was a new point raised today.  Had it been raised earlier, we might have been in a different position.  
45.	As to the concession, my Lord, there has been no concession as such; it simply states that the matter will be looked at again because Pankina has required that all such matters be looked at again.  
46.	Finally, my Lord, there was a reason to proceed given that he has lost the ten‑year lawful stay period which would have accrued to him, and he has lost his right of appeal which he would have had had we won on the first point.
47.	MR JUSTICE MITTING:  Anything in reply? 
48.	MISS STOUT:  My Lord, just in relation to the question about when we raised this issue about the photographs, we raised it in the letter of 18 June.  That has always been the Secretary of State's position.  In any event, it was clearly stated in my skeleton argument, if nowhere else.  In my submission, that is not a reason for saying that we should not be entitled to our costs.  
49.	The other points, my Lord, do not, in my submission, address the general principle, which is that we have been successful today and we should have our costs.
50.	MR JUSTICE MITTING:  A second decision has by concession been quashed, so you have not been wholly successful, but you have been substantially successful.  Is there any reason why I should not make a proportionate order?
51.	MISS STOUT:  My Lord, if you do not accept my full submission, I would be quite content with that one.
52.	MR JUSTICE MITTING:  Right.  
53.	The claimant must pay two thirds of the Secretary of State's costs, to be the subject of a detailed assessment if not agreed.