Akter, R (On the Application Of) v The Secretary of State for the Home Department

Where an immigration authority indicates that defects in an application will be identified, the expectation may be fulfilled by returning the fee, identifying the defects and explaining what a fresh application must contain. The authority need not hold the defective application open if its correspondence gives proper assistance. A distinction between invalidity and refusal on evidential grounds will not necessarily make the communication misleading where its practical effect is clear. A permission application is ordinarily decided under the law as it stands. The court need not await a pending Supreme Court appeal, although it may take that possibility into account.

The applicant, a Bangladeshi Tier 4 student, applied for further leave to remain on the final day of her existing leave. The application was returned as invalid because it lacked required material, including a CAS. Her fresh application was refused because she had not produced evidence of the required maintenance funds.

She sought judicial review, relying on a lost letter said to promise that defects would be identified and an opportunity given to rectify them. The Upper Tribunal refused the application on 2 June 2014. Floyd LJ refused permission to appeal on paper, referring to [2014] EWCA Civ 2. On renewal, the central questions were whether the claim was arguable and whether the Court of Appeal should await the pending Supreme Court appeal.

Permission to appeal was refused. Lord Justice Jackson, sitting in a single judgment, held as follows:

1. The Court of Appeal ordinarily proceeds on the basis of the law as it stands. It is not normally practicable to adjourn or grant permission merely because another appellate decision is awaiting consideration by the Supreme Court. The possibility of a different outcome may be borne in mind, but does not prevent the court deciding the application.
2. The Upper Tribunal was entitled to conclude that the applicant’s legitimate expectation had been fulfilled. The communication relied upon was an attempt to summarise the UKBA flexibility policy. The Secretary of State’s letter of 26 September 2011 identified the shortcomings in the original application, returned the fee and explained what had to be done in a fresh application.
3. The distinction between an application being invalid and being refused for failure to provide evidence of means was too fine. The practical effect of the letter was sufficiently clear. In particular, it was sufficiently apparent that a fresh application by an overstayer would require evidence of substantial means, including the relevant course fees and maintenance funds.
4. There was no arguable error in the Upper Tribunal’s decision. If permission were granted, the appeal would ultimately fail and could expose the applicant to substantial costs. Permission was therefore refused.

• Court of Appeal (Civil Division): On 27 May 2015, Lord Justice Jackson refused the renewed oral application for permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): On 2 June 2014, Upper Tribunal Judge Jordan refused the application for judicial review.
• Court of Appeal permission stage: Floyd LJ refused permission on the papers, referring to [2014] EWCA Civ 2.