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

Immigration decision-making must be fair and proportionate in all the circumstances, but fairness does not generally require the Secretary of State to invite an applicant to remedy evidence that is insufficient under clear Immigration Rules. A Tier 4 student’s no-study condition may be imposed by the Immigration Rules without a further administrative act. However, under the Immigration (Leave to Enter and Remain) Order 2000, the condition must be endorsed on the entry clearance. A sponsor reference, read with the description of the clearance as a Tier 4 General Student clearance, was sufficient endorsement. The Secretary of State was entitled to infer that a postal application received on 15 May had been posted after leave expired on 10 May, despite the application form being dated 10 May. The judicial review claim was refused.

The claimant sought judicial review of the Secretary of State’s refusal of further leave to remain as a Tier 4 General Student. The refusal relied on breach of the condition restricting study to the sponsoring institution and failure to show the higher maintenance funds required where the application was made after expiry of the claimant’s existing leave.

The claimant contended that the no-study condition had not been validly endorsed, that the application had been posted on 10 May 2012 and therefore attracted the lower funding requirement, that the decision was unfair, and that the Secretary of State had failed to exercise discretion. Two additional grounds were raised shortly before the hearing.

1. No-study condition. Section 3(2) of the Immigration Act 1971 permitted the Immigration Rules to prescribe conditions to be attached to leave. Rule 245ZW(c) therefore imposed the Tier 4 no-study condition without further administrative action, subject to the requirements of the Immigration (Leave to Enter and Remain) Order 2000.
2. Articles 3 and 5 of the 2000 Order required conditions to be endorsed on the entry clearance. That requirement applied to mandatory conditions under the Immigration Rules as well as discretionary conditions under section 3(1) of the 1971 Act. The entry clearance described the claimant as a Tier 4 General Student and identified the sponsor by reference number. In context, that was a sufficient endorsement of the limitation to study with that sponsor. The claimant had breached the valid condition.
3. Funding and date of application. The Secretary of State was entitled to infer from receipt by first-class post on 15 May, the absence of a certificate of posting, and the surrounding evidence that the application had been posted on 14 May or, in any event, after expiry of leave on 10 May. The date on the application form and CAS did not establish the date of posting.
4. Fairness and discretion. Fairness under the immigration legislation is fact- and context-specific. It did not require the Secretary of State to seek further evidence of posting or means where the application was validly made but did not satisfy clear requirements of the Rules. The claimant had also been able to seek reconsideration after the decision. There was no evidence that the Secretary of State had failed to consider discretion, despite the absence of express reference to it in the refusal letter.
5. The judicial review application was refused.

Not stated in the judgment.