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

Permission to appeal should be refused where the proposed grounds have no real prospects of success. A point of general importance may justify permission if it is the sole or decisive issue, but it does not do so when the challenge is bound to fail on independent grounds. Under the Immigration Act 1971, conditions restricting study may be imposed on leave, including through an order. The Immigration (Leave to Enter and Remain) Order 2000 requires conditions on entry clearance to be endorsed; the Immigration Rules do not remove that requirement. The scope and communication of a no-switching condition may require fuller examination where it determines the outcome.

The appellant, a Pakistani citizen with Tier 4 leave sponsored by JFC College, moved to Walthamstow Business College after JFC’s sponsor licence was suspended, without seeking permission to change institution. His later extension application was refused because the study breached his conditions and the application was out of time, with no right of appeal. The Administrative Court dismissed his judicial review on 6 July 2014. Bean LJ refused permission on the papers. On renewal, the Court of Appeal considered whether there were real prospects of success, including whether the entry clearance imposed a no-switching condition without adequate endorsement.

The Court of Appeal refused the renewed application for permission to appeal.

1. Independent grounds. The challenge was bound to fail on three independent grounds. The extension application was out of time; there was no substance in the allegation of unfairness; and there was no factual basis for exercising discretion outside the Immigration Rules, given what the appellant ought to have known about the no-switching policy.
2. Timing. Leave expired on 10 May 2012. The application was received on 15 May. In the absence of evidence of posting or postal disruption, the Secretary of State was entitled to treat it as posted on 14 May and therefore out of time. The appellant consequently could not rely on the reduced financial requirement for an established student and had no right of appeal.
3. Fairness. The Secretary of State was not required to alert the appellant to breaches which arose on the information presented. The judge was right to reject the fairness challenge and the request for discretion outside the Rules.
4. Endorsement issue. The court accepted that section 3(1)(c)(ia) of the Immigration Act 1971 permitted conditions restricting study and that conditions could be imposed by order under section 4. Articles 3(2) and 5 of the Immigration (Leave to Enter and Remain) Order 2000 indicated that conditions had to be endorsed on entry clearance. The judge had rightly rejected the submission that the Rules alone imposed conditions without endorsement. However, the scope and effect of the sponsor reference endorsement remained open to fuller examination in a case where it was determinative.
5. Final order. Although the endorsement issue was of general interest and not free from doubt, it was not decisive because the other grounds independently defeated the proposed appeal. Having regard to CPR 52.36, there were no real prospects of success. The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division) — The renewed application for permission to appeal was refused: [2015] EWCA Civ 733.
• Court of Appeal (Civil Division) — Bean LJ refused permission on the papers.
• High Court of Justice, Queen’s Bench Division, Administrative Court — Robin Purchas QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim on 6 July 2014 and refused permission to appeal.