EK (Ivory Coast) v The Secretary of State for the Home Department

The common-law duty of fairness applies to decisions under the points-based immigration system, but its content depends on the statutory and administrative context. The system's objective criteria, certainty and efficient administration ordinarily mean that the Secretary of State need only determine whether a valid Confirmation of Acceptance for Studies exists when the decision is made.

Where a sponsoring college withdraws a certificate after a valid application has been filed, fairness does not ordinarily require notice, delay or inquiry merely because the Secretary of State cannot know why it was withdrawn. The applicant bears the risk of a sponsoring college's administrative error. Earlier fairness cases must be read contextually, particularly where the Secretary of State caused, or materially contributed to, the relevant change or error.

The appellant, a Tier 4 student, applied in time for leave to remain supported by a valid Confirmation of Acceptance for Studies issued by an approved college. Before the Secretary of State decided the application, the college withdrew the confirmation by administrative error without informing the appellant. The application was refused because the confirmation was no longer valid.

The First-tier Tribunal dismissed her appeal. The Upper Tribunal also dismissed it, holding that the circumstances did not engage common-law fairness. The appellant appealed on the ground that the Secretary of State should have notified her of the withdrawal and deferred the decision so that she could investigate or rectify the position.

The central issue was whether fairness under the points-based system imposed such a duty where a certificate was withdrawn after the application was made.

1. Appeal dismissed by a majority. Sales LJ, with whom Briggs LJ substantially agreed, held that the decisions of the Secretary of State, the First-tier Tribunal and the Upper Tribunal were lawful. Floyd LJ dissented.

2. The Immigration Rules HC 395 did not exclude the Secretary of State's general common-law duty to act fairly. However, fairness is context-sensitive. The statutory scheme, the nature of the decision and the public interest in its administration determine whether additional procedural safeguards are required. The court applied the contextual approach in R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531.

3. The points-based system is designed to process many applications by clear, objective criteria. It places responsibility on applicants to provide and maintain the evidence required for leave. A simple check that a valid Confirmation of Acceptance for Studies exists when the decision is made is consistent with that scheme. Requiring the Secretary of State to delay and investigate every withdrawal would materially undermine the scheme's speed, predictability and efficient operation.

4. The unfair outcome arose from the college's mistake and its failure to notify the appellant, not from any unfair conduct by the Secretary of State. The Secretary of State could not know whether the withdrawal resulted from an innocent administrative error or from circumstances properly adverse to the student. The appellant therefore bore the risk of the college's error.

5. The majority distinguished cases in which fairness required an opportunity to respond because the Secretary of State had caused the relevant change or had materially contributed to the error. It rejected an unqualified reading of Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC), since such a formulation overlooked the contextual balance required by the points-based system.

6. Dissenting, Floyd LJ would have allowed the appeal. In his view, where the Secretary of State knows of a material post-application change that requires refusal, fairness requires an opportunity to address it unless the applicant knew of it, caused it, or the defect was plainly irremediable.

1. Court of Appeal (Civil Division) — dismissed the appellant's appeal by a majority: [2014] EWCA Civ 1517.
2. Upper Tribunal (Immigration and Asylum Chamber) — dismissed the appeal from the First-tier Tribunal; decision promulgated on 8 October 2013.
3. First-tier Tribunal (Immigration and Asylum Chamber) — dismissed the appeal against the Secretary of State's refusal of leave to remain; decision promulgated on 30 July 2013.