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

Under the Immigration Rules, a requirement concerning an overstayer’s current leave cannot govern an application made when the applicant has no current leave. More generally, a substantive or material change to eligibility criteria must be made through amended Rules laid before Parliament. Guidance may prescribe the means of proving eligibility. A requirement that an educational institution list the evidence used to assess a student’s academic ability was evidential and administrative. It did not materially alter the substantive criteria for leave to remain, despite the potentially serious consequences of non-compliance.

The claimant, a Philippine national, sought judicial review of the refusal of her application for further leave to remain as a Tier 4 student. The Secretary of State relied on Paragraph 245ZX(l) of the Immigration Rules because there was a gap between the expiry of her leave and the proposed course start date. The claimant was, however, an overstayer when she applied, and the Secretary of State conceded that Paragraph 245ZX(l) did not apply.

The claimant’s visa letter also failed to list the evidence used by her educational institution to assess her academic ability, as required by Appendix A Paragraph 116(e) and the relevant policy guidance. The central issue was whether that guidance unlawfully introduced a substantive eligibility requirement without parliamentary scrutiny.

1. Paragraph 245ZX(l). The Secretary of State’s concession correctly reflected the language of the Rule. The reference to the applicant’s current entry clearance or leave to remain had no application to a person who was an overstayer when the application was made. The challenge on this issue therefore succeeded.
2. Parliamentary scrutiny. The authorities, including Pankina v Secretary of State for the Home Department [2011] QB 376, established a distinction between substantive eligibility criteria and the means of proving eligibility. A substantive or material change affecting an applicant’s status or entitlement must be included in amended Immigration Rules laid before Parliament. The Rules may instead refer to guidance dealing with evidential or administrative requirements.
3. The visa-letter requirement. The requirement to list the evidence used by the sponsoring institution to assess the student’s academic ability did not change a substantive criterion for leave to remain. The institution would already have assessed the applicant’s ability to complete the course. The new requirement merely required the evidence used in that assessment to be identified in the visa letter, evidently to reduce fraud. It was therefore a minor alteration to administrative practice with an indirect effect on entitlement, and was validly imposed through Appendix A Paragraph 116(e).
4. The visa letter did not contain the mandatory information. The claimant therefore failed to satisfy the requirements for leave to remain as a Tier 4 student. Since success on the Paragraph 245ZX(l) issue alone could not justify quashing the refusal, the judicial review claim was dismissed.
5. The Secretary of State was awarded costs, but only one third of the costs incurred before 12 January 2011, when the concession concerning Paragraph 245ZX(l) was made. The period for seeking permission to appeal was extended to 21 days from judgment or seven days after receipt of the perfected transcript, whichever was longer.

First-instance judicial review. No prior decision of another court is stated as determining this claim.