Case No: CO/967/2011
Neutral Citation Number: [2011] EWHC 2515 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/10/2011

Before :

BELINDA BUCKNALL QC 
(Sitting as a Deputy High Court Judge)
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Between :

	THE QUEEN on the application of MASHUD KOBIR	Claimant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant	

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Miss Patricia Glass (instructed by KC Law Chambers) for the Claimant
Mr Tom Poole (instructed by The Treasury Solicitors) for the Defendant

Hearing dates: 21 September 2011
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Judgment
BELINDA BUCKNALL QC: 
1.	On 15th May HH Judge Anthony Thornton QC gave permission for judicial review of the Defendant’s decision of 3rd November 2010 refusing to grant the Claimant leave to remain as a Tier 4 (General Student) Migrant and made certain other orders.
2.	The background facts are as follows.  On 9th January 2002, the Claimant applied in Bangladesh for a visa to enter the UK, was granted it and arrived in the UK via Heathrow.  On 14th January 2002, he applied for leave to remain as a student.  The application was successful.  On 1st March 2005, 20th April 2006, 1st April 2007 and 25th April 2008 he was granted further leave to remain.  In 2006 he was lawfully joined by his wife.  On 15th August 2007 his son was born and on 14th September 2008 his daughter was born.   By the Spring of 2009 the Claimant had successfully completed a three year degree course in Computer Science and wanted to take an 18 month, post graduate Diploma in Business Management at the London School of Technical Education in Ilford, which lasted from 20th April 2009 to 10th September 2010.   He paid the full tuition fee of £2,500 and started the course on the due date.  His current leave to remain expired on 31st May 2009.   
3.	Up to this point, therefore, the Claimant’s immigration history was impeccable and as far as the evidence goes he was leading a law-abiding life with his wife and children, peaceably carrying on with his studies in pursuit of the academic qualifications he wanted to acquire before returning to his home country to follow his intended career path.  It is apparent that he received financial assistance from relatives in Bangladesh and he also worked limited hours, as permitted to full time students with leave to remain, having sought and obtained permission from the Defendant to do so.
4.	The First Failed Application
By an application made on 28th May and received on 29th May 2009, and thus before his current leave had expired, the Claimant applied for further leave to remain.  He did so using the 55 page form for the Tier 4 (General) Points Based System.  This had only come into force that year.  It was thus the first time that the Claimant had had to work his way through the documents relating to an application under that system.  At the same time he also applied for leave to remain on behalf of his wife and two children, using the Tier 4 form for dependants.  The student’s application form is accompanied by a 50 page document entitled “Tier 4 of the Points Based System – Policy Guidance”.  The dependant’s application form is accompanied by a 21 page Policy Guidance.  Each form states on its front page that the applicant will need the separate guidance notes, namely the Policy Guidance applicable to the form, and the applicant is requested to read the guidance notes before making his application.  The fee payable for the Claimant’s application was £357.  The fee payable for each of his dependants was £50.  
5.	The Claimant made a mistake.  He sent the money for his own fee and that of his wife, totalling £407, but failed to appreciate that he needed to pay £50 for each of his two young children.   The total was, therefore, short by £100.  All other aspects of the application were correct.  Of particular relevance to what happened next is the fact that he complied with the requirement to provide documentary proof that he had the necessary maintenance funds for 2 months in the total sum of £1,200, as required for a student whose primary site of study was outside London.  This was met by submitting a bank statement which showed that he had that sum in his account for the requisite period of 28 days and the last entry of which was dated  22nd May, thus satisfying  by a wide margin the instruction that the end date should be no more than one month before the date of his application.  
6.	Four weeks later, the Defendant returned all the applications under cover of a letter dated Friday 26th June 2009 as invalid because the fees paid were insufficient.  The letter is in standard form for applications which are invalid for reasons relating to the fees payable and/or failures to comply with the Biometric Regulations.  Out of the various options in the standard form, the writer selected the box relating to underpayment of fees and in the standard text, adjusted for the Claimant’s particular case, stated what the individual and total fees were.  The letter envisages that an invalid application may be made again.  I mention in passing that it contains no “red hand” warning, as it could so easily do, that if an invalid application is resubmitted, even by return (as the Claimant’s effectively was, allowing for the intervening weekend and the post) it is treated as a new application and the applicant should ensure that all supporting documentation is still in date.  The Claimant claims in his original Application Notice that he believed that the letter dated 26th June 2009 did not require him to submit a fresh application but merely to return the documents with the correct fee.  I find that claim to be wholly credible.
7.	The second failed application
On Friday 3rd July 2009, and thus after his previous leave to remain had expired, the Claimant sent the four applications back again, accompanied by the total correct fee under cover of a letter which states the following,
“As requested I have enclosed the correct fees with this application.  It was difficult for me to understand the Home Office UKBA new application form and Guidelines for my application.  Because I was acting in person.  I have not had any legal adviser to understand certain issues.  It was a lot of pages which I had to go through for the application with the guidelines.  From the application form and the guidelines itself what I understand and honestly believed to be correct put it in the application form and paid the fees accordingly.  As you are a professional Home Office UKBA caseworker your advice would be correct which I should follow.
Therefore I would appreciate if you please consider my Leave to Remain Application with the requested specified fee.
Thank you for your assistance and cooperation.
Please do not hesitate to contact me if you have any further queries regarding my application.”
8.	That the Claimant had made a genuine mistake about the fees is eminently credible, given the amount of documentation he had gone through in order to complete the forms and that it was the first time he had had to grapple with them.  The Defendant does not contend to the contrary.  

9.	The Defendant stamped this application as received on 9th July 2009.  She has, however, consistently treated the application as made on 8th July and I will adopt the same approach.     For effectively an entire year, the Defendant did not respond to this prompt and courteous explanatory letter nor did she notify her decision to the Claimant.  The consequences of that lapse of time for the Claimant were serious.  His previous leave to remain had expired and he did not know what his or his family’s immigration status was.  Without proof that he had valid leave to remain he could not, I was told, continue with the post graduate course for which he had paid and had started on 20th May, and in consequence lost the value of the tuition fee.  In addition he had, as required, enclosed the family passports with the application, thus depriving all four members of the family of their primary means of establishing their identity should the need arise, a situation which continues to this day.  Furthermore he lost the opportunity of correcting the error promptly by making a third application accompanied by a compliant bank statement.  Had the Defendant responded to this application in about four weeks, say by about 5th August, the Claimant could, and in all probability would, have submitted a further application within a week or so, supported by an up to date bank statement, and in any event prior to 20th August, accompanied by the explanation made on his behalf by his solicitors in the Application for Judicial Review.   The significance of this lost opportunity is set out below.
10.	The reason for the long delay was not that the Defendant’s case workers were overwhelmed with work.  It was due to a deliberate decision not to process the Claimant’s application for some eleven months because the academic establishment at which he was enrolled was either under investigation or suspended.  The first suspension, however, did not occur until 23rd September 2009, more than 10 weeks after the application was received.   That suspension was lifted on 11th January 2010.  A second suspension was imposed on 19th January which was lifted on 15th June 2010.  As far as the evidence goes this was the last suspension and at no time in the relevant period was the establishment disqualified.     It is common ground that the Claimant had no knowledge of these suspensions and reinstatements.  
11.	The Defendant has provided no explanation why the mere fact of investigation in the period between 8th July and 23rd September led to the decision not to process the Claimant’s claim in that period, and to do so without telling him.   The Defendant relies in a passage in section 6 of the Tier 4 Policy Guidelines to establish the reasonableness of her actions.  The relevant text says, 
“If you are already in the United Kingdom and studying with your approved education provider, we will not tell you if we suspend their [sic] licence.  However, if the result of the suspension is that your approved education provider loses their [sic] licence, we will tell you and your permission to stay will be limited.  You can still apply to extend your permission to stay if it runs out when your approved education provider’s licence is suspended, as long as you already have your visa letter.  However, we will hold your application until the suspension is resolved.”
12.	The first two sentences are not directed at students who are seeking to extend their leave to remain.  As far as the second and third sentences are concerned, they also are not applicable to the Claimant’s case for two reasons.  First his leave to remain had not run out when his approved education provider’s licence was suspended; when his previous leave to remain expired on 31st May his provider was not even under investigation.  Secondly, the sentences are only concerned with applications made when a provider’s licence is suspended; they say nothing about applications made when a provider is under investigation.  In consequence nothing in these words of guidance establishes the proposition for which they are cited.  On the contrary, the absence of a warning that applications will not be processed if made at a time when the approved education provider is being investigated gives rise, in my judgment, to the legitimate expectation that applications made during periods of investigation will be processed in the usual way, making the Defendant’s decision not to do so in this case, unreasonable.  Finally, nothing in the text warns an applicant for leave to remain that if the Defendant decides not to process the application because the education provider is under investigation, the Defendant will not tell him of that decision, but will instead leave him in limbo, not knowing whether his application has been lost or caught up in a backlog of other applications or whether there is a problem with his approved education provider.   
13.	By a letter dated 6th July 2010 the Defendant finally notified her decision in relation to the 8th July 2009 application.  This said that the Claimant’s application had failed.   The stated reason was that it was not possible to establish that the Claimant had the £1,200 maintenance fund.  In consequence, because the Claimant was applying under the Points Based System he failed to score the necessary 10 points for maintenance funds, with the further consequence that he failed to score the necessary 40 points in total.  Accordingly, the Defendant decided to refuse his application for leave to remain as a Tier 4 (General) Student Migrant because he did not meet the requirements of paragraph 245ZX(d) of the Immigration Rules. The letter ended by telling the Claimant that his application had been made after his previous leave to remain had expired, that he had no right of appeal, that he had no right to remain in the UK and that he was liable to be removed and should leave as soon as possible.  He was warned that if he did not leave voluntarily he might be prosecuted and was liable to be removed from the UK to Bangladesh.  That threat was reinforced by the advice that the papers had been forwarded to his local enforcement office and the further advice that he should telephone that office by 16th July 2010 at the latest to discuss his departure from the UK.    It may fairly be assumed that among the papers passed to the local enforcement office were the four family passports which had been out of his possession and in the Defendant’s hands since the second failed application was sent on 3rd July 2009.
14.	The problem arose in this way.  The required proof that an applicant has the necessary maintenance funds consists of various categories of documents including personal bank statements.  As set out in the application form, if a bank statement is relied on it must show that the applicant had the requisite funds in his or her account “for a 28 day period ending no more than one month before the date of the date of [the] application”.  In light of the change in formula from “28 days” to “one month” it is clear that what the Defendant intends by “month” is a calendar month.  As set out above, this requirement was met in the case of the application made on 29th May by the bank statement with the end date of 22nd May 2009.   By the time the application was resubmitted with the correct fees on 8th July, however, that bank statement no longer complied by the modest number of days between 22nd May and 8th June 2009.
15.	It is relevant at this point to consider what would have happened if the Claimant had complied with the direction that he and his family should leave as soon as possible.  The Defendant accepted during oral submissions that once the Claimant was back in his own country he would be entitled to make an application to enter the UK.  The Defendant declined to go beyond accepting that if such an application was made it could succeed.   The reality is, however, that the Claimant, whose long immigration record was unblemished save for the fact that in 2009 he had made one application within time, which by mistake was invalid for want of the fees for his children, and shortly thereafter a second one out of time which was invalid because he thought he was doing no more than returning the previous application with the correct fee and thus failed to provide a more recent bank statement,  would probably be granted leave to enter because there was no good reason to refuse it.  One therefore has to ask what would be the purpose of requiring him to suspend the final stages of his education and incur the considerable cost and disruption of taking himself and his family to Bangladesh and then back again to the UK once entry clearance was granted and whether it is reasonable and proportionate in all the circumstances for the Defendant to require him to do so.   
16.	 It is apparent from the documents, and as is to be expected given the purpose of the applications, that the Defendant usually deals with Tier 4 (General) Student applications within a few weeks.  The decision of the Defendant deliberately to shelve the Claimant’s application without explanation for an indefinite period of time which ultimately lasted a year, instead of dealing with it within the usual time frame meant that the Claimant lost the opportunity of resubmitting his application promptly, supported by an up to date bank statement and a letter explaining that he thought he was merely sending back the 8th July application with the correct fees.  
17.	The Third Failed Application
The Claimant was determined to complete his studies if he could.  He instructed solicitors.  He enrolled in a second  post graduate diploma course in Business Management at the Holborn College of London in Cambridge Heath Road, E2, starting on 20th September 2010 and ending on 20th March 2012 and paid the tuition fees of £4,999.  The solicitors helped him to make a further application on behalf of himself and each of his dependants.   The new application was signed on 7th September 2010, sent on 25th September under cover of a letter from his solicitors and stamped by the Defendant as received on 27th September.  His application gave the information about his new course and an up to date bank statement to prove that he had the necessary maintenance funds of £1,600.  The increase from the previous maintenance fund of £1,200 reflected the fact that he now had to meet the more onerous requirements for someone whose primary place of study was Inner London.  The absence of his passport from the application was explained by ticking the box stating that it was “Elsewhere in the UK Border Agency”.  The letter from the Claimant’s solicitors ends by saying,
“It is hoped that you will appreciate that Mr. Kobir is a law abiding resident who has invested many years and [a] considerable amount of money to better himself with education.  He seeks to extend his leave with a view to completing his Post Graduate Diploma in Business Management.  He has no intention to live in the UK in defiance of the law.  We trust you will now grant our client further leave to remain in the UK allowing him to complete his studies.”
By a letter dated 3rd November 2010 the Defendant refused the applications on the ground that there was more than one month between the date of expiry of the Claimant’s last leave to remain, namely 31st May 2009, and the date of his new course with the result that he failed to comply with Regulation 245ZX(1) of the Immigration Rules.  All other aspects of the application were noted to be correct including his proof of maintenance funds and he was awarded the requisite total 40 points.  The Claimant was provided with the same advice and warnings as he had received in the 6th July 2010 letter.  He was told that he must contact his local enforcement office by telephone by 17th November 2010 at the latest to discuss his departure from the UK. 
18.	On 2nd February 2011 the Claimant filed his application seeking judicial review of the decision of 3rd November 2010.  On 25th February 2011 the Defendant withdrew that decision letter and stated that she would reconsider the Claimant’s application.  Having done so, on 3rd March the Defendant issued a further decision letter, again refusing the application.  This stated that the application made on 25th September 2010 had been considered again and the decision taken that the Claimant did not meet the immigration rules because, 
“The documents you have provided do not show that you held the required level of funds for a period of 28 days with closing balance of one month prior to date of application.”
The basis of that decision was not that the bank statement was out of date.  As set out above, it was compliant as to date and had been accepted by the Defendant as such, as had the amount evidenced by it. The Defendant now took a different stance.  This was that the Claimant did not meet the requirements to be assessed as having an established presence in the United Kingdom.  In consequence he had to meet the very much more onerous maintenance fund requirement of £21,591, instead of £1,600 and his bank statement did not show that he had that much money.  
19.	If the Defendant had processed the Claimant’s 8th July application within a reasonable period of time instead of deliberately shelving it for a year and if the Claimant, on being told that his bank statement was out of date, had promptly made a further application supported by a compliant bank statement it seems probable that he could not, in relation to that application, which would have been made notionally in the first half of August 2009, have been treated as a person who did not have an established presence in the United Kingdom.   That is because he may well have been able to satisfy the requirements in paragraph 14 of Appendix C of the Immigration Rules.  These provide that,
“An applicant will have an established presence studying in the United Kingdom if the applicant has completed a course that was at least six months long within their [sic] period of leave as a Tier 4 ... student ... and this course finished within the last four months ...”.
The Claimant indisputably met the first requirement and it appears that he would have met the second requirement when making a further application in the first half of August 2009 because although various dates are given in the documents for the end date of his previous course, the best evidence is that it finished immediately before the start of his post graduation course on 20th May 2009.  If so, a further application made on any date prior to 20th August would have met the second requirement.  
20.	Application out of time
The Defendant contends that the Claimant’s challenge is to the decisions made on 26th June 2010 and 6th July 2009 and as such the challenge is out of time.  The point was not advanced in oral argument beyond saying that the contention was maintained.  The grounds make clear that the challenged decision is the decision of 3rd November 2010 and that reference to the earlier decisions is made, merely in order to set the scene for the impugned decision.  Accordingly, I reject this contention.
21.	The lawfulness of the Defendant’s various decisions
The Defendant’s case is that all the decisions accorded with the relevant rules and were thus lawful.  The Claimant does not dispute that proposition.  His case is that (1) the Defendant should have exercised her discretion when considering the applications of 8th July 2009 and 25th September 2010 in light of all the circumstances as at the relevant date and granted leave to remain (2) it was disproportionate to require the Claimant to return to Bangladesh (3) the Defendant’s delay in determining the Claimant’s application of 8th July 2009 was so unfair as to be unlawful.  The Claimant relied upon the case of R. on the application of Teisha Forrester v. SSHD [2008] EWHC 2307 in support of the first two contentions.  The Defendant contended that R. on the application of Walker v. SSHD [2010] EWCH 2473 was more akin to the facts of the present case.
22.	In the Forrester case the Claimant had been lawfully in the UK since 13th June 2002 with valid leave to remain until 30th November 2007.  She had a child.  She met and married a man who had lived in the UK for some 38 years and who had indefinite leave to remain.  Before her leave expired, the Claimant applied for further leave to remain as the spouse of a person who was present and settled in the country.  She also made an application on behalf of the child.  The application was rejected on the sole ground that the cheque for the application fee had been returned due to insufficient funds.  Reasonably promptly given the intervention of the Christmas period she resubmitted her application with a new cheque which was met.  Her application was, however, refused this time because it had been made after her leave to remain had expired.  It was common ground that if the Claimant returned to her own country she could apply for entry clearance on the same grounds as her in-country application and that it was likely to be successful.  In consequence, the refusal served no better purpose than to force the Claimant to incur the expense of travelling with her child to her own country and then travelling back again. 
23.	In quashing that decision and sending the matter back to the SSHD for reconsideration with the hope that a little common sense and humanity would prevail, Sullivan J did not dispute the SSHD’s contention that the decisions accorded with the rules but pointed out that that was not the end of the matter because the SSHD had a discretion which had to be exercised with a modicum of intelligence, common sense and humanity. 
24.	In the case of R. on the application of Walker v. SSHD [2010] EWCH 2473 (a rolled up hearing) the Claimant failed to provide the photograph without which her application, made before her leave to remain expired, was invalid and failed, when resubmitting it after her leave to remain had expired, to provide any explanation for her failure.  The SSHD in that case, therefore, had no material upon which to exercise her discretion and although permission was given the claim was refused.  That case, therefore, is very different from the present one where there was ample material in the shape of the Claimant’s explanatory letter upon which the Defendant could exercise her discretion.
25.	In addition, the probability that the Claimant would be granted entry clearance if he took his family back to Bangladesh enables me to say without hesitation that the decision to refuse leave in response to each application was wholly disproportionate to the Defendant’s legitimate need to maintain a fair and firm immigration system. 
26.	Delay
Whether or not delay by the Defendant amounts to conspicuous unfairness amounting to an abuse of power has to be decided in light of the particular circumstances.  There are a number of factors which lead to the conclusion that in this case the delay was conspicuously unfair.  First, applications for leave to remain by a student to continue an existing educational course need to be processed relatively quickly.  That is all the more so when three other applications by family members are parasitic upon the student’s application.  Secondly, while I accept that part of the overall period of delay, namely the two periods when the Claimant’s education provider was suspended, is excusable the same is not so for the period between 8th July and 23rd September 2009.  As far as that period is concerned, the Defendant gives no general warning by means of the Policy Guidance that applications for leave will, without notice to the applicant, be shelved pending the outcome of an investigation, the terms of the relevant text are such as to give rise to a legitimate expectation that this is not what will happen and no ad hoc warning or explanation was given to the Claimant, with the result that he was left in limbo, uncertain of his immigration status and dispossessed of his family passports.  Thirdly, the Defendant’s decision not to process the application between 8th July and 23rd September deprived the Claimant of the chance to deal with the defect in his bank statement evidence by making a prompt new application, explaining why he had resubmitted the original bank statement instead of replacing it with an up-to-date one, and providing the up-to-date one.  Had he done so, he might well have been dealt with as a person with an established presence in the United Kingdom and that new application would, like the 8th July application, have called for consideration in light of the Defendant’s discretion.  
27.	Taking into account (1) the Claimant’s long and trouble-free immigration history between 2002 and mid-2009 (2) the modest and understandable nature of the error in making the first application (3) the prompt and full explanation which accompanied the second application (4) the absence of proportionality in requiring the Claimant to incur the cost and disruption of removing his family to Bangladesh although he would be entitled once there to  make an application for entry clearance which would probably succeed, (5) the period of inexcusable delay on the part of the Defendant before processing the  second application, as a result of which the Claimant lost the opportunity promptly to explain and make a compliant third application, probably in the capacity of a person with an established presence in the United Kingdom, all lead inexorably to the conclusion that when each of the decisions was made, and all the more so when deciding to replace the decision made on 3rd November 2010 with the decision made on 3rd March 2011, it was manifestly unfair and unreasonable for the Defendant not to have looked very carefully indeed at the full history with a view to exercising her discretion outside the rules rather than simply refusing it within the rules.  
28.	Accordingly the decision of 3rd November 2010 is quashed, together with the replacement decision of 3rd March 2011 and the decision of 6th July 2010 and the case is remitted for further consideration by the Defendant.  The discretion is that of the Defendant.  Accordingly, the Claimant’s application for an order of mandamus requiring her to grant leave to remain is refused.
29.	Article 8 of the ECHR
The Claimant further contends that the Defendant should have given consideration to the Claimant’s Article 8 rights.  The Defendant’s case is that the time has not yet arisen at which she needs to consider Article 8, since there has as yet been no decision to remove the Claimant.  The time at which the Defendant may be said to have been under a duty to consider Article 8 rights depends upon the individual circumstances, including the known circumstances of the Claimant, the nature of the application for leave to remain and the terms of any relevant decision letter.   See R (Nough) v. SSHD [2010] EWHC 2218 in which case it was decided that the time for consideration of the Claimant’s Article 8 rights had not yet arisen, he being an unmarried ex serviceman who had only been told that enforcement action might be taken (“If it is decided to take enforcement action ...”).  In the present case the Defendant knew that the Claimant had been in the UK since 2002, knew that his wife was living with him as a dependant, knew that he had two young children who had been born in the UK, knew that the reason why he was in the UK was to obtain qualifications of repute and knew that the reason why he wanted further leave to remain was to obtain his post graduate diploma.  The letters of 6th July and 3rd November 2010 and of  3rd March 2011 do not state expressly that the Claimant and his family will be removed. However they state emphatically that the Claimant must leave as soon as possible and direct him to contact his local enforcement office to discuss his departure, within a stated number of days at the latest.  This indicates a very firm intention on the part of the Defendant to remove the Claimant and his family within a short space of time.  That being so, she should in my judgement have given consideration to the Claimant’s Article 8 rights and those of his family at that time and the decision not to do so was irrational.  Whether it becomes necessary to consider this in the future will, however, depend on how she chooses to act on reconsideration of the Claimant’s case. 
30.	That being so, it is unnecessary to address the Defendant’s contention that the Claimant has no Convention rights arising out of his wish to study in the UK especially at tertiary level and in the alternative, no rights that have been breached.
31.	Damages
The Claimant claims damages.  No evidence has been served in support of such a claim and if it is to be pursued, the merits will have to be investigated on another occasion unless the parties can come to terms.