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

An unsigned immigration application was invalid under the Immigration Rules. The Secretary of State was nevertheless required to consider whether exceptional circumstances justified granting leave outside the Rules. The question was whether the discretion should have been considered, not whether the court would have exercised it in the claimant’s favour. Relevant factors included the application having initially been made in time, administrative delay in identifying the defect, the claimant’s prompt correction, the likelihood that the application would otherwise have succeeded, the consequences of invalidity, and the claimant’s immigration history and conduct. Failure to consider the discretion rendered the refusal unlawful.

The claimant, an Indian student, applied in time for further leave to remain but submitted an unsigned form. The Secretary of State treated it as invalid and later refused the signed version as an out-of-time application because the claimant had become an overstayer. The claimant sought judicial review, challenging the validity of the decision under the Immigration Rules, alleging procedural unfairness, and arguing that the Secretary of State had failed to consider a residual discretion to grant leave outside the Rules.

Permission was initially refused but was later granted on renewal. The central issues were whether the original application had lawfully been treated as invalid, whether the acknowledgement letter created procedural unfairness, and whether the residual discretion should have been considered.

1. The claim succeeded in part. The refusal decision was quashed and remitted to the Secretary of State for reconsideration solely on whether the residual discretion to grant leave outside the Immigration Rules should be exercised.

2. The original application was lawfully treated as invalid. Rule 34(a)(6)(b) required the form to be signed, and rule 34(c) stated that a non-compliant application would be invalid and would not be considered. The decision letter did not need to identify the precise subparagraph relied upon because the absence of the signature itself supplied the relevant reason. The challenge based on section 3(2) of the Immigration Act 1971 therefore failed.

3. The acknowledgement letter did not properly promise an opportunity to correct an invalid application. It could have been clearer that a fresh application was required, but whether the application was fresh or resubmitted, it would have been out of time. The procedural unfairness ground therefore failed.

4. The Secretary of State accepted that a residual discretion theoretically existed to grant leave outside the Rules. The relevant question was whether that discretion should have been considered. The court could not decide how it should be exercised. The decision-maker had to direct herself lawfully, take relevant matters into account, disregard irrelevant matters, and reach a decision within the range reasonably open to her.

5. On the particular facts, consideration of the discretion was required. The application had been made in time; the defect could have been identified promptly, allowing correction before expiry; there had been a 39-day delay in rejecting it; the signed application was resubmitted promptly; it appeared likely that the application would otherwise have succeeded; invalidity had serious consequences; and the claimant had no poor immigration history, had acknowledged and apologised for the error, and had committed no further invalidating error. These matters raised a substantial question of proportionality in requiring departure from the United Kingdom and an application from abroad.

The judgment was a first-instance judicial review decision. The application for permission was initially refused by a Deputy High Court Judge, but permission was granted on oral renewal. The claim was then upheld on the limited ground that the residual discretion should have been considered.