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

Where the Immigration Rules prescribe mandatory requirements for an application, failure to comply makes the application invalid unless the Secretary of State exercises a residual discretion to treat it as valid. A general doctrine of substantial compliance cannot override unequivocal wording such as that in rules 34A and 34C. The discretion does not ordinarily require officials operating a mass, tick-box scheme to give an applicant a second opportunity to correct a complete omission. Its exercise may nevertheless be required where the circumstances disclose a compelling reason, including disproportionate consequences or an error of form rather than a complete failure to provide a mandatory item.

The claimant challenged the refusal to treat two applications for further leave to remain as a Tier 4 (General) Student Migrant as valid. The first application was rejected because it was not accompanied by the mandatory photographs required by the Immigration Rules. The second contained photographs but relied on bank statements dated six weeks before the application, rather than evidence demonstrating the required funds at the application date.

The court considered the effect of Pankina v the Secretary of State, the doctrine of substantial compliance, the residual discretion to accept non-compliant applications, and the relevance of Forrester v Secretary of State for the Home Department. The central issues were whether either application was valid, whether discretion should have been exercised, and whether the second decision could stand in light of the guidance issue identified in Pankina.

1. The first application was invalid. On the evidence, no photographs had accompanied the form. Rules 34A and 34C made photographs a mandatory requirement and provided that an application failing to comply was invalid and would not be considered. The decision letter was naturally understood as rejecting the application because no photographs had been supplied.

2. The Court of Appeal’s approach in R v Secretary of State for the Home Department ex parte Jeyeanthan required attention to the language of the instrument imposing the procedural requirement. Here that language was unequivocal. Any doctrine of substantial compliance could not displace rule 34C. The question whether to exercise the residual discretion was separate.

3. The Secretary of State was not required to give the claimant a second opportunity to provide photographs. The scheme was designed for routine operation by junior officials on a mass, tick-box basis. The claimant had made a complete omission, and there was no evidence or other ground requiring favourable discretion. The case was materially different from Forrester v Secretary of State for the Home Department, where the relevant facts and the engagement of Article 8 rights called for consideration of discretion. It was instead on all fours with Walker v Secretary of State for the Home Department.

4. The second application also failed on the evidence available to the Secretary of State. Under paragraph 245Z(e) and Appendix C, the claimant had to demonstrate the required funds at the date of application. His statements ended six weeks earlier and did not establish that he held the minimum £800 on 6 July 2009.

5. Read as a whole, the second refusal letter did not award the claimant ten points for maintenance despite the apparently contradictory box. The second decision was nevertheless quashed by concession because the Pankina issue required reconsideration. The court refused permission to appeal. The claimant was ordered to pay two-thirds of the Secretary of State’s costs.