Onyebuenyi v Secretary of State for the Home Department

An application for Tier 4 leave to remain must satisfy the applicable requirements of the Immigration Rules. Where the applicant’s current or last leave does not fall within the permitted categories, the application fails independently of any evidential issue. A provision disregarding limited overstaying does not create a statutory right of appeal or alter substantive eligibility. A general direction to submit the correct form of application does not ordinarily amount to an assurance, admission, legitimate expectation or promise that discretion will be exercised outside the Rules.

The claimant sought permission to apply for judicial review of the refusal of his application for leave to remain as a Tier 4 (general) student migrant. His previous leave had been as a Tier 1 (general) migrant and had expired shortly before the application.

Permission had been refused on the papers by HHJ Jarman QC. The claimant renewed the application, arguing that the Secretary of State’s officers had previously frustrated his educational plans, that a response directing him to make a Tier 4 application amounted to an assurance or admission, and that his outstanding Financial Ombudsman complaint and possible civil claim engaged his rights. The central issue was whether any arguable ground existed for challenging the refusal.

1. Application refused. The refusal was not arguably unlawful, and there was no order as to costs.
2. Paragraph 245ZX of the Immigration Rules required the applicant to satisfy each specified requirement. Under requirement (b), the applicant had to have, or have last been granted, one of the specified categories of entry clearance or leave. The claimant’s last leave was as a Tier 1 (general) migrant, which was not an eligible category except for the distinct Tier 1 post-study work category. The application was therefore doomed to fail on that ground alone.
3. The application also failed because no valid confirmation of acceptance for studies had been provided. This meant that the requirements for the necessary points under Appendix A and Appendix C were not met. The judge did not need to decide whether the flexible evidential policy applied. Although Secretary of State for the Home Department v Raju & Others [2013] EWCA Civ 754 was relied on, the judge was not immediately persuaded that it applied to these facts.
4. The provision concerning overstaying of no more than 28 days did not create a right of appeal. It merely prevented refusal on the ground that the application was out of time; that was not the ground on which this application had been refused.
5. The claimant’s Financial Ombudsman complaint and prospective civil claim could not make an otherwise ineligible Tier 4 application grantable. Any relevance they might have had was to possible removal directions, where the Enforcement Instructions and Guidance required consideration of relevant civil proceedings, rather than to the substantive Tier 4 application.
6. The response directing the claimant to submit a Tier 4 application was a procedural statement about the proper form of application. It was not an admission of wrongdoing, an authorisation, an assurance, or a legitimate expectation that discretion would be exercised outside the Rules. No arguable public law ground arose from it.

HHJ Jarman QC, sitting as a judge of the High Court, refused permission on the papers on 4 November 2013. The claimant renewed the application, which was refused by the Administrative Court.