Hulkory, R (On the Application Of) v The Secretary of State for the Home Department

An application made after the expiry of existing student leave cannot succeed under the Immigration Rules. The Secretary of State is not generally required to investigate, without prompting, whether an otherwise defective application should be granted outside the Rules. The decision-maker must consider relevant facts and submissions placed before her, and exceptional circumstances may require further consideration where the material raises such a possibility. Silence about the discretionary power is lawful where the application raises no matter capable of suggesting that discretion should be exercised.

The claimant, a Mauritian national, sought judicial review of the Secretary of State’s refusal on 2 February 2006 of his application for further leave to remain as a student. His existing leave expired on 30 November 2005, but the application was sent by his college on 1 December 2005. It was accepted that the application was out of time and could not succeed under the Immigration Rules.

The claimant argued that the Secretary of State should have considered whether to grant leave outside the Rules in the exercise of her discretion, despite the absence of an express request or supporting explanation. The issue was whether the material before the Secretary of State required her to investigate or address that discretion.

1. The claim was dismissed. The application was made after the claimant’s leave had expired and therefore could not succeed under the Immigration Rules.
2. R v Secretary of State for the Home Department, ex parte Tarrant [1985] QB 251 established that a decision-maker acts unlawfully when making a potentially favourable discretionary decision without appreciating that the discretion exists. It did not assist the claimant because there was no reason to infer that the Secretary of State was unaware of her discretion.
3. Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 confirmed that a decision-maker exercising a discretion must take account of the relevant facts. The case did not impose a general obligation on a decision-maker, responding to an application, to make her own enquiries beyond the material submitted.
4. British Oxygen Co Ltd v Minister of Technology [1971] AC 610 established that the Secretary of State must listen to and consider submissions and matters placed before her. It did not establish a general duty to search for circumstances which might support an applicant but had not been raised.
5. The Secretary of State was entitled to respond to the application as made. The progress report, dated one day before expiry, and the application form, dated on the expiry date, contained no explanation for the late submission and raised no exceptional reason capable of requiring consideration outside the Rules. The Secretary of State was therefore entitled to give no separate reasons addressing the discretionary power.
6. The court recognised that there might be cases in which the material required the Secretary of State to consider whether an otherwise out-of-time application should be granted outside the Rules. This was not such a case. Costs were ordered against the claimant, subject to detailed assessment if not agreed within 14 days.