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

Where an immigration policy permits discretion in cases of exceptional circumstances, an applicant must identify reliance on that discretion and provide supporting evidence with the application. The threshold is high and concerns circumstances that are exceptional or unavoidable and beyond the applicant’s control. A late document, without evidence explaining the delay or the steps taken by the applicant, does not ordinarily establish an arguable case. Different provisions allowing a longer period in cases involving loss of sponsorship cannot be treated as a general extension of the applicable time limit.

The claimant challenged the refusal of further leave to remain as a Tier 4 student migrant. The original decision relied partly on alleged deception and partly on overstaying and applying more than 28 days after leave expired. The deception point was later withdrawn, but the refusal based on the late application remained.

The claimant sought to amend his judicial review grounds and argued that the Secretary of State had failed to apply her policy concerning exceptional circumstances. Permission had previously been granted on the original deception ground, but the present judge held that it did not extend to the amended grounds. The central issue was whether the proposed challenge was arguable.

1. Amendment and permission. The application to amend the judicial review grounds was refused, and permission to proceed on the proposed amended case was refused. The claim was dismissed.
2. The policy required an applicant who relied on exceptional circumstances to make that reliance clear and to submit evidence of those circumstances with the application. The policy set a high threshold. Its examples, including serious illness, travel or postal delays and inability to provide necessary documents, applied only where the circumstances were exceptional or unavoidable and beyond the applicant’s control.
3. The claimant had provided no evidence of exceptional circumstances. The date of the certificate of acceptance for studies and the Upper Tribunal decision did not, without more, make the proposed ground arguable. The claimant had received the decision on 19 October and had 46 days thereafter in which to apply, but there was no evidence of what he had done during that period or what steps he had taken.
4. The policy’s reference to a 60-day period in cases where sponsorship was lost through no fault of the applicant concerned a materially different situation. It did not create a general basis for extending the 28-day period or require equivalent treatment in the claimant’s case.
5. The claimant accepted that the application fell for refusal under the Rules. The Secretary of State was not required to consider exceptional circumstances in the absence of reliance on them and supporting evidence. The amended grounds therefore disclosed no arguable ground.
6. The claimant accepted that the claim could no longer proceed on the basis of the earlier permission. The claim was dismissed, and the defendant’s costs were summarily assessed at £4,468.

This was a first-instance judicial review. The claimant had initially challenged the refusal decision dated 26 February 2013. Permission had been granted on the original deception ground by Helen Mountfield QC, sitting as a Deputy High Court Judge, but that permission did not cover the amended grounds. The present court refused amendment and dismissed the claim.