Haq, R (on the application of) v Secretary of State for the Home Department

An application for variation of immigration leave is invalid where the prescribed form requirements are not met and the safeguards in regulation 17(1) of the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007 are satisfied. The Secretary of State retains a residual discretion, but failure to exercise it is not unreasonable where the applicant was given a further opportunity to correct the application and failed to do so within the permitted period.

For section 10(1)(b) of the Immigration and Asylum Act 1999, deception used in an earlier application may suffice. The reviewing court asks whether evidence existed which could reasonably support the Secretary of State’s conclusion, rather than deciding the underlying allegation afresh.

The claimant sought judicial review of the Secretary of State’s decision to refuse his application for further leave as a student and to remove him to Pakistan under section 10(1)(b) of the Immigration and Asylum Act 1999.

He argued that his application had been made before expiry of his existing leave and therefore attracted statutory continuation under section 3C of the Immigration Act 1971. He also challenged the finding that his earlier leave had been obtained by deception, arguing that section 10(1)(b) required current deception and that the evidence did not support the historical finding.

The issues were whether the application was invalid under the 2007 Regulations and whether the Secretary of State acted reasonably in relying on the alleged earlier deception.

1. Invalid application. The claimant failed to provide documents required by the prescribed form, namely financial evidence covering the relevant period. Regulation 17(1) made the application invalid because the Secretary of State notified him within 28 days and he failed to comply within the further 28-day period. There was no general doctrine of substantial compliance. The reasoning in Campbell v Secretary of State for the Home Department [2003] EWHC 261 (Admin) supported that conclusion.
2. The Secretary of State accepted that she had a discretion to treat the application as valid. The claimant had, however, been given a second opportunity to correct the defects and did not respond within time. The circumstances were materially different from R v (on the application of Forrester) v The Secretary of State for the Home Department [2008] EWHC 2307 (Admin), where there had been no effective second chance. It was not unreasonable to refuse to exercise the discretion in the claimant’s favour. The court could not substitute its view for the Secretary of State’s as to whether less evidence, or evidence supplied out of time, should be accepted.
3. Historical deception. Section 10(1)(b) was not confined to deception in the current application. Its wording covered deception used in an earlier application, whether or not it successfully secured leave. If the Secretary of State reasonably found that the claimant had used deception in 2006, he fell within the provision.
4. Reasonableness of the deception finding. It was common ground that the evidence had to be clear and unambiguous and establish deception to a high degree of probability. The court’s task was narrower: whether the evidence was capable of enabling a reasonable decision-maker to reach the conclusion. Evidence that the college had no meaningful educational facilities, that extensive bogus records and certificates had been discovered, and that the operation appeared to involve widespread sham student status provided a sufficient basis for inferring deception in the earlier application.
5. The judicial review application was refused. The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment.

Permission to apply for judicial review was granted by Burnett J on 9 October 2008. The Administrative Court then refused the claim.