Ajila, R (on the Application of) v Secretary of State for the Home Department

Changes to immigration rules ordinarily apply to pending applications from the date specified in the change, unless the change provides otherwise. Whether a presumption against retrospectivity applies is a question of fairness. Clear transitional provisions are not rendered unfair merely because applicants have different periods in which to apply under the former rules. Applicants are responsible for complying with immigration requirements as they change. A discretion to admit applications made after a 28-day overstaying period is exceptional. The absence of required documents will not ordinarily qualify where the applicant could not satisfy the substantive requirements of the relevant route at the material time.

The claimant, a Nigerian student, challenged the Secretary of State’s refusal of her application for leave to remain as a Tier 4 (General) Student. Her earlier application had been refused because her sponsor withdrew her Confirmation of Acceptance for Studies, and her appeal rights were exhausted on 14 May 2012. She later obtained a university offer and a valid CAS, but applied on 27 September 2012, after the transitional arrangements for overstayers had changed.

The claim alleged that the transitional provisions were unfair and that the Secretary of State had acted unlawfully or unfairly by refusing to exercise discretion outside the Immigration Rules.

1. Application dismissed. The transitional arrangements in HC 194 were sufficiently clear. Applications made on or before 8 July 2012 were determined under the former rules. Applications made on or after 9 July 2012 were determined under the rules in force when determined, so that the new 28-day overstaying requirement applied if determination occurred on or after 1 October 2012.
2. The court was bound by Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230. Immigration rules are not formally secondary legislation, but are rules made by the Secretary of State under the Immigration Act 1971. Unless stated otherwise, a change takes effect as specified and applies to pending as well as future applications.
3. Although fairness may justify a presumption against retrospectivity, the claimant suffered no conspicuous unfairness. There was no obligation to create transitional provisions, and the difference between the periods available to applicants did not make the arrangements unlawful. The claimant could have applied before 9 July 2012 if she had met the substantive requirements, or could have left the United Kingdom and applied from abroad once she had a valid CAS.
4. The Secretary of State retained a discretion to consider exceptional circumstances preventing a timely application. The threshold was high. The claimant’s inability to provide a CAS before 9 July 2012 resulted from her failure to meet the substantive requirements of the student route, rather than from an exceptional circumstance preventing submission of the necessary documents. It was therefore lawful and fair to refuse discretion outside the rules.
5. The claimant’s young age and her guardian’s failure to tell her of the earlier refusal did not disclose an error of law and, in any event, had not been raised as exceptional circumstances when the original decision was made.

This was a first-instance judicial review. Permission was initially refused on the papers, then granted at a renewed oral hearing on 17 January 2014. The defendant reconsidered the refusal after permission was granted and maintained it on 25 February 2014.