HS (India) v Secretary of State for the Home Department

An immigration decision-maker may insist on compliance with an applicable language requirement in the Immigration Rules, even if an earlier grant of leave appears to have been made without requiring the prescribed certificate. A past error does not, without more, create a waiver or prevent later reliance on the Rules. A party seeking to raise a discrimination point for the first time on an appeal on a point of law must show that the point was so obvious that the tribunal was bound to notice it. Permission to appeal does not itself authorise a new issue to be argued on its merits.

The appellant, an Indian citizen, entered the United Kingdom with entry clearance for employment with the Sikh Missionary Society. He later obtained leave in different religious-work categories and applied for a further extension as a minister of religion. The Secretary of State refused the application because he did not satisfy the applicable Immigration Rules, including the requirement for an IELTS certificate.

An Immigration Judge allowed his appeal, but Senior Immigration Judge Waumsley, on reconsideration, dismissed it. The appellant appealed to the Court of Appeal, arguing that the language requirement had been waived or that insisting upon it was an abuse of power. He also sought to raise discrimination arguments under Articles 9 and 14 of the European Convention on Human Rights and a challenge to Home Office guidance.

1. Appeal dismissed. The Senior Immigration Judge was correct that the appellant could not satisfy the requirements for an extension as a minister of religion under either Rule 173 or Rule 174A because he had never obtained the required IELTS certificate.
2. The discrimination argument under Articles 9 and 14 of the European Convention on Human Rights could not be raised for the first time in the Court of Appeal. The appeal was on a point of law, and the tribunals could not be said to have erred by failing to address an issue never raised before them unless it was so obvious that they were bound to notice and determine it. That was the effect of R v SSHD ex parte Robinson [1998] QB 929; the present issue did not meet that standard and lacked the necessary evidential foundation.
3. Permission to appeal granted on paper did not preclude the court from refusing to hear the discrimination argument on its merits. Nor did it authorise a separate challenge to the Immigration Directorate Instructions where that point had not been taken below.
4. The earlier grant of leave without an IELTS certificate did not establish a waiver or abuse of power. The appellant did not rely on it to his later prejudice or detriment, and he did not advance a viable legitimate-expectation case. In any event, the Immigration Rules contemplated that a language certificate could be required on every application, even if it had not previously been required or produced. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): Appeal from the decision of Senior Immigration Judge Waumsley on reconsideration, promulgated on 15 January 2008; appeal dismissed.
• Asylum & Immigration Tribunal: Immigration Judge Pacey allowed the appellant’s appeal on 11 September 2007. Senior Immigration Judge Waumsley subsequently dismissed the appeal on reconsideration.
• Secretary of State: Application for further leave to remain as a minister of religion refused by letter dated 10 July 2007.