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

Compliance with the Immigration Rules does not exhaust the Secretary of State’s discretion in an application for further leave to remain. The discretion must be exercised with intelligence, common sense and humanity, having regard to the full circumstances. A refusal may be disproportionate where requiring departure from the United Kingdom serves no substantial immigration purpose and entry clearance would probably follow. Unexplained delay in processing an application may be conspicuously unfair and unlawful where it deprives the applicant of a realistic opportunity to correct a defect. Article 8 consideration may be required before a formal removal decision where the terms of the decision letter show a firm intention to remove the applicant and family shortly.

The claimant had lived lawfully in the United Kingdom since 2002 and applied for further leave as a Tier 4 student, together with applications for his wife and children. His first application was returned as invalid because the children’s fees were not paid. He promptly resubmitted it with the correct fees, but the defendant delayed processing it while the education provider was investigated and suspended.

The defendant later refused applications on maintenance-fund and Immigration Rules grounds. The claimant sought judicial review of the refusal dated 3 November 2010. That decision was withdrawn and replaced by decisions dated 3 March 2011 and 6 July 2010. The issues included whether the defendant had unlawfully failed to exercise her discretion outside the Rules, whether refusal and requiring departure were disproportionate, whether delay was conspicuously unfair, and when Article 8 had to be considered.

1. Discretion outside the Rules. The defendant’s decisions complied with the Immigration Rules, but that did not end the matter. The defendant retained a discretion which had to be exercised with a modicum of intelligence, common sense and humanity, as explained in R (Forrester) v Secretary of State for the Home Department [2008] EWHC 2307. The prompt explanatory letter accompanying the second application supplied ample material for that discretion to be considered. R (Walker) v Secretary of State for the Home Department [2010] EWCH 2473 was materially different because there was no explanation on which discretion could operate.
2. Proportionality. Given the claimant’s long and trouble-free immigration history, the modest and understandable fee error, the prompt explanation, and the probability that entry clearance would be granted if he returned to Bangladesh, refusing leave and requiring removal was wholly disproportionate to the legitimate aim of maintaining a fair and firm immigration system.
3. Delay and legitimate expectation. The policy guidance did not warn that an application made while an education provider was under investigation would be shelved without notice. Its terms gave rise to a legitimate expectation that such applications would be processed in the usual way. The unexplained delay left the claimant in limbo and deprived him of the opportunity to submit an updated bank statement and explanation, potentially as a person with an established presence in the United Kingdom. The delay was therefore conspicuously unfair and unlawful.
4. Article 8. Whether the duty to consider Article 8 arises depends on the individual circumstances, the application and the decision letter. Applying R (Nough) v Secretary of State for the Home Department [2010] EWHC 2218, the court held that the emphatic directions to leave and contact the enforcement office indicated a firm intention to remove the claimant and his family. The defendant should therefore have considered their Article 8 rights; the failure to do so was irrational.
5. The decisions dated 6 July 2010, 3 November 2010 and 3 March 2011 were quashed and the case was remitted for reconsideration. The claimant’s application for mandamus requiring the grant of leave was refused because the discretion remained that of the defendant. It was unnecessary to determine the defendant’s alternative arguments on the scope or breach of Convention rights arising from study.

High Court (Administrative Court): HH Judge Anthony Thornton QC granted permission for judicial review on 15 May 2011. The Administrative Court quashed the relevant decisions and remitted the case to the Secretary of State for reconsideration.