Ajayi, R (on the application of) v First Tier Tribunal & Anor

On judicial review, the court reviews legality, procedural fairness and rationality rather than rehearing the underlying merits. Immigration application requirements may validly incorporate external guidance where the guidance supplies evidence of compliance and does not determine an applicant’s status or entitlement. Once clearly incorporated, requirements such as photograph specifications may be mandatory. A residual discretion to treat a non-compliant application as valid does not require routine individual balancing or an invitation to make representations. A mass, tick-box application system may be operated by officials applying clear mandatory requirements, provided the policy is not applied unlawfully rigidly. An unanswered mandatory question cannot ordinarily be completed by inference from other answers, and substantial compliance has no general place in such a system.

The claimant had applied for further leave to remain as a Tier 4 student migrant shortly before her existing leave expired. The Secretary of State rejected the application as invalid because a mandatory form question was unanswered and the photographs did not comply with incorporated format requirements. A later application was rejected, and the First-tier Tribunal refused to accept an appeal on the basis that no appealable decision had been made.

The claimant sought judicial review of the Secretary of State’s original decision, arguing that the photograph guidance was not mandatory, that discretion should have been exercised in her favour, and that the unanswered question could be answered by inference.

1. Judicial review standard. The court’s task was to review legality, procedural impropriety and irrationality. It was not entitled to substitute its own view for the Secretary of State’s decision or to re-exercise the administrative discretion.
2. Photograph requirements. Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719 prevented Immigration Rules from being supplemented by an external rule affecting an individual’s status or entitlement. It did not prevent external guidance from supplying evidence of compliance with a rule. The guidance on photograph format did not determine status or entitlement. The application form clearly incorporated the guidance and stated that the specified format was mandatory. The incorporation was therefore valid.
3. Discretion. A residual discretion existed to treat an application as valid despite non-compliance. However, applying Fu v Secretary of State for the Home Department [2010] EWHC 2922 (Admin), requiring junior officials routinely to exercise that discretion in response to clear mandatory requirements would undermine the tick-box system. There was no obligation to conduct a general balancing exercise based on the claimant’s personal circumstances, nor to notify every applicant of the discretion and invite representations.
4. Unanswered question. The question concerning residence in Northern Ireland was mandatory. Its relevance could not be challenged through review of the individual rejection decision. The answer could not safely be inferred from completion of another part of the form, particularly where other answers disclosed inconsistencies. The court adopted the rejection in Fu of substantial-compliance reasoning.
5. The judicial review claim was dismissed. The claimant was ordered to pay the interested party’s substantive costs. The claimant received the costs of the disclosure application, while £440 in wasted costs was payable by her solicitors and/or legal representative.

• First-tier Tribunal: The immigration judge refused to accept the notice of appeal, considering that no relevant appealable decision had been made because the claimant’s leave had expired before the later application.
• High Court (Administrative Court): The claimant was permitted to amend the judicial review grounds. The claim challenging the Secretary of State’s original invalidity decision was dismissed.