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

Statutory immigration appeal rights arise from legislation and cannot be created by the Secretary of State. Fairness does not entitle a person who has allowed leave to expire to concessions or additional leave available under published policies to applicants who applied while their existing leave continued. The relevant 60-day arrangements operate within the statutory scheme of section 3C leave and therefore depend on an application made before existing leave expires. Fairness requires consideration of the claimant’s conduct and position, the Secretary of State’s conduct, the public interest, and the position of other applicants. A claim based only on the applicant’s desire to obtain a further opportunity, without support in the Rules or policy, does not establish unfairness.

The claimant, a Bangladeshi national, sought judicial review of the refusal of his application for further leave to remain as a Tier 4 (General) Student. His previous leave had expired before he applied, and his proposed sponsor subsequently lost its licence. He argued that he should have been given an in-country right of appeal and 60 days to find another sponsor. Walker J extended time and granted permission on an arguable unfairness ground. The substantive issues were whether an appeal right could be conferred administratively and whether fairness required the Secretary of State to extend concessions applying to applicants with existing leave.

1. The claim was dismissed. The Secretary of State’s decision was made in accordance with the applicable Rules, and no unfairness was established.

2. Rights of appeal arise from statute, not from a decision or grant by the Secretary of State. The court relied on Merriman-Johnson v SSHD [2010] EWHC 1598 (Admin). The claimant did not pursue this ground at the substantive hearing.

3. The application could not succeed under paragraph 245ZX(l) because the proposed course began 29 days after the expiry of the claimant’s leave, whereas the Rules allowed a maximum gap of 28 days. The application would therefore have failed even if the proposed sponsor had retained its licence.

4. The 60-day policy concerned applicants whose applications were made during existing leave and operated through section 3C leave under the Immigration Act 1971. Section 3C leave arises only where an application is made while existing leave remains in force. No equivalent statutory provision applied to an application made after leave had expired.

5. Fairness is assessed through the published Rules and policies and their consistent application. Relevant considerations include the claimant’s position and conduct, the Secretary of State’s position and conduct, the public interest, and the position of other actual and potential applicants. The claimant’s decision to remain without leave did not create an entitlement to a further 60-day period or to concessions unavailable under the Rules and policy.

First-instance judicial review proceedings. Walker J extended time and granted permission on 7 October 2013. The Administrative Court dismissed the claim on the merits.