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

Where a sponsor’s licence is revoked during an in-time application to vary leave, fairness may require the Secretary of State to allow the applicant a reasonable opportunity to identify a new sponsor. That principle depends on the applicant having extant leave, including leave extended under section 3C of the Immigration Act 1971. It does not extend to an out-of-time application made when the applicant has no extant leave and cannot satisfy the relevant immigration rules. In such circumstances, the Secretary of State may refuse the application because the sponsor’s licence has been revoked without giving the applicant a further opportunity to submit a revised application.

The claimant sought judicial review of the refusal of his application for further leave to remain as a Tier 4 General Student. His first application was rejected as invalid because the required fee was not paid. After his leave had expired, he made a fresh application supported by a certificate of acceptance of studies from a college whose sponsor licence was later revoked.

The Secretary of State refused the fresh application because the college was no longer on the Tier 4 Sponsors Register and the certificate was invalid. Permission was granted on the question whether procedural fairness required an opportunity to identify a replacement institution, applying the principles in Patel, Revocation of Sponsor Licence - Fairness India, [2011] UKUT 00211 (IAC).

1. The claim was dismissed.
2. Per Mr Justice Jay, the ratio of Patel, Revocation of Sponsor Licence - Fairness India, [2011] UKUT 00211 (IAC), applies where a sponsor’s licence is revoked during the currency of an application for variation of leave, the applicant is unaware of the revocation and is not responsible for the reasons for it. Basic fairness then requires a reasonable opportunity to identify a new sponsor before the application is determined.
3. The principle presupposes an in-time application. Under section 3C of the Immigration Act 1971, an in-time application extends the applicant’s existing leave until at least determination of the application.
4. The claimant’s fresh application was made after his leave had expired. Section 3C therefore did not extend his leave. He could not satisfy the relevant immigration rules and was reliant on the Secretary of State’s discretion to consider the application.
5. In those circumstances, the Secretary of State was entitled to refuse the application on the straightforward ground that the sponsoring college’s licence had been revoked. She was not required to provide a further opportunity to identify another institution or submit a revised application.
6. The claimant’s remaining course was to submit a properly constituted, out-of-time application, with the appropriate fee, in relation to a bona fide licensed institution.

Permission to apply for judicial review was refused by two judges of the Administrative Court. Court of Appeal: Lord Justice Jackson granted permission on 14 April 2014 on a single procedural-fairness ground. High Court (Administrative Court): the claim was dismissed.