Michael Mosinimu Mark Akande, R (on the application of) v The Secretary of State for the Home Department

An application completed online but required to be printed and brought to a premium-service appointment is not thereby submitted online. Under Immigration Rules, the application is made when it is accepted in person. A refusal of an out-of-time application is therefore not an appealable refusal to vary existing leave under the statutory appeal provisions.

Where maintenance funds are said to be those of a legal guardian, the specified documentary proof of legal guardianship is mandatory. Bank statements and consent alone do not suffice. Disruption to studies does not, without compelling circumstances, establish a right to remain under Article 8.

The applicant sought judicial review of removal directions. The parties agreed that the substantive challenge concerned the Secretary of State’s refusal of further leave as a Tier 4 student.

His previous leave expired on 19 April 2013. He completed a form online, paid the fee and booked a premium-service appointment that day, but attended the UKBA office on 22 April 2013. The Secretary of State treated the application as out of time, refused it for failure to meet the maintenance requirements, and said that no statutory appeal lay.

The applicant contended that the application had been made online on 19 April; that his uncle’s funds should have been accepted as those of his legal guardian; and that his Article 8 claim had not been considered. The central issue was when, in the premium-service process, the application was made.

1. The judicial-review claim was dismissed. On the evidence, the applicant completed an online “print and send” form and paid the fee on 19 April 2013, but did not submit an online application. At that time a Tier 4 premium-service application could only be made in person. The application was submitted and accepted at the Sheffield appointment on 22 April 2013.
2. Under paragraph 34G(ii) of the Immigration Rules, an application submitted in person is made on the date on which the public enquiry office accepts it. The applicant’s leave had expired before 22 April. The refusal of further leave was accordingly not an appealable refusal to vary existing leave under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002.
3. The maintenance ground also failed. Paragraph 13B of Appendix C required specified evidence where funds from a legal guardian were relied upon. The applicant supplied neither an adoption certificate identifying his uncle as legal guardian nor a court document naming him as such. The Secretary of State was therefore required to disregard the uncle’s financial sponsorship.
4. The later decision of 18 November 2013 considered the applicant’s family and private life under Article 8. His circumstances were materially different from those in OA (Nigeria) v SSHD [2008] EWCA Civ 82. The inability to complete a course of study, without more, was not a right protected by Article 8. The Secretary of State’s conclusion that removal was proportionate was rational and lawful.
5. The judge further observed that certification of the human-rights claim did not affect a hypothetical appeal against a refusal to vary leave under section 82(2)(d). In any event, the Article 8 claim was properly certifiable as clearly unfounded because it was bound to fail.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted on 23 April 2014. An application to set aside or review that permission decision was dismissed on 16 June 2014. The substantive judicial-review claim was dismissed.