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

Immigration Rules imposing points-based requirements must be complied with strictly. A near miss does not justify leave where the rule creates a bright-line requirement, including lawful immigration status during study. A court may construe a decision letter sensibly where an obvious transcription or calculation error is non-substantive and the intended reasoning is clear. Judicial review must not reopen issues already considered, or which could have been pursued through available appeals and applications for permission. Completion of education does not create a free-standing Article 8 right to remain for post-study work.

The claimant challenged refusals of applications for leave to remain as a Tier 4 student and subsequently as a Tier 1 (Post-Study Work) Migrant. His first application was refused in 2011 and his appeal to the First-tier Tribunal was dismissed. Permission to appeal was refused, including an out-of-time application to the Upper Tribunal.

A later post-study work application was refused in 2012, with errors in the allocation of points. The Secretary of State reconsidered the matter and issued a 2013 decision awarding 55 of the required 75 points because the claimant lacked leave during part of his course. The central issues were the effect of the errors, the relevance of the 2013 decision, whether earlier matters could be reopened, and whether Article 8 was engaged.

1. The claim was dismissed. The claimant could not rely on the erroneous entry awarding 20 points for immigration status. The reasons plainly stated that he had no valid leave during part of the course and was not entitled to points under that heading. A reasonable and informed reader would understand that the entry of 20 was a typographical error and should have read 0.
2. The immigration-status requirement was a bright-line requirement. The course formally ended after the claimant’s leave expired. The court rejected reliance on practical completion of coursework or examinations at an earlier date. The Immigration Rules required strict compliance and contained no near-miss principle. This was consistent with SSHD v Raju [2013] EWCA Civ 754, Miah v SSHD [2012] EWHC Civ 261 and Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719.
3. A court may read a decision letter in the round and ignore an obvious, non-substantive transcription or calculation error where the intended reasoning is clear. The Secretary of State’s 2013 decision reconsidered and replaced the defective 2012 decision. It was not challenged and awarded the claimant 55 rather than the required 75 points.
4. The claimant could not reopen the 2011 refusal or tribunal decisions. His repeated procedural choices meant that reopening the proposed challenge would undermine statutory appellate procedures and finality, and would be disproportionate and an abuse of process. The reasoning in R (on the application of Cart) v Upper Tribunal [2011] UKSC 28 and Kamil Erdogan v SSHD [2004] EWCA Civ 1087 supported that conclusion.
5. The discrimination and exceptional-circumstances argument was not arguable. Other students had benefited from erroneous tribunal decisions, but that did not require the Secretary of State to repeat the error. The court relied on Malik Sohail Kamran & Samina Gul v SSHD [2014] EWHC Civ 196.
6. Article 8 did not provide a free-standing right to remain after completion of education in order to undertake post-study work. The court applied Patel and Others v Secretary of State for the Home Department [2013] UKSC 72 and Nasim & Others (Article 8: Pakistan) [2014] UKUT 25 (IAC).

This was a first-instance judicial review in the Administrative Court. The judgment records earlier decisions of the First-tier Tribunal and Upper Tribunal, but the challenge to those decisions was not before the court on the merits.