The Secretary of State for the Home Department v Tamar Marghia

The common-law duty of fairness concerns procedural fairness. It does not impose a free-standing duty on an immigration decision-maker to reach a substantively fair result. A tribunal may interfere with a substantively unfair administrative decision only if it is Wednesbury unreasonable.

Where an applicant plainly fails to meet a clear requirement of the Immigration Rules, it is for the Secretary of State alone to decide whether to exercise any residual discretion outside the Rules. The tribunal must not substitute its own sympathetic view for that executive decision.

The Secretary of State appealed against a First-tier Tribunal decision allowing Miss Marghia’s appeal from the refusal of leave to remain as a Tier 4 student.

Her proposed course was rescheduled by the education provider. Its new start date fell more than 28 days after the expiry of her existing visa, so that she did not meet the relevant Immigration Rules requirement. The First-tier Tribunal held that refusal was unfair because the change was not her fault.

The central issue was whether that sympathy and substantive unfairness entitled the tribunal to allow the appeal despite the claimant’s failure to satisfy the Rules.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal had erred in law. Its determination was set aside and remade by dismissing the claimant’s appeal.

2. The tribunal had used the common-law duty of fairness in the wrong sense. That duty required procedural fairness in the making of a decision. It did not require a substantively fair outcome. A court or tribunal could interfere with substantive unfairness only where the decision was Wednesbury unreasonable. No such contention was advanced or available on these facts.

3. The relevant Immigration Rules requirement was clear and the claimant’s failure to meet it was manifest. The provider’s change of course date and the claimant’s lack of fault could explain why the result was unfortunate, but they did not establish procedural unfairness or invalidate the refusal.

4. Any residual discretion to grant leave outside the Rules belonged to the Secretary of State. The Tribunal could not exercise that discretion or impose its own view of substantive fairness. The Tribunal followed the principle stated in Abdi [1996] Imm AR 148.

5. Article 8 was not pleaded in the original appeal and was therefore not before the Upper Tribunal. The section 47 removal decision did not alter the result.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s determination, and remade the decision by dismissing the claimant’s appeal.
• First-tier Tribunal: Judge Chamberlain, in a decision dated and promulgated on 15 April 2014, allowed the claimant’s appeal on common-law fairness grounds.