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

Where an online immigration application is submitted before a change to the Immigration Rules, the transitional provisions apply by reference to the date of submission, even if the application is later rejected as invalid. Mandatory supporting documents must therefore be provided within the applicable time limit. Possession of a document after that deadline does not cure the failure.

A residual discretion to act outside clear mandatory rules remains available in exceptional cases, but it is not triggered merely because an applicant requests more time without explaining the need. A rejection of an application as invalid is not an eligible decision for administrative review where the relevant rules restrict review to decisions on the merits.

The claimant, an Indian national with leave to remain as a Tier 4 student, submitted an online application for further leave on 22 October 2014. He failed to provide his passport within the required 15 working days. The passport came into the defendant’s possession after the deadline when the claimant was arrested, but the application was rejected as invalid on 19 November 2014.

The judicial review challenged that rejection on the grounds that the later Immigration Rules and Guidance applied, that the defendant had failed to exercise or consider a discretion to allow further time, and that the rejection was an eligible decision for administrative review. The central issues were which transitional rules applied, whether the decision was unlawful on public law grounds, and whether an invalidity rejection fell within the administrative review scheme.

1. Applicable rules. The transitional provisions in HC693 provided that the new provisions took effect on 6 November 2014, except where an application for leave had been made before that date. The online application was made on 22 October 2014. The word application included one later rejected as invalid. Rules A34 and 34C themselves contemplated an application which was not yet valid, while paragraph 34G identified the date of an online application as the date of submission. The old Rules and Guidance therefore applied.
2. Failure to provide the passport. The rejection letter, read as a whole, relied on failure to provide the passport within the specified period, not on failure ever to provide it. The claimant had missed that deadline. The defendant’s later possession of the passport was immaterial. The time limit was important because only an in-time application enabled the claimant to remain in the United Kingdom pending determination; otherwise a rudimentary application could improperly trigger the statutory extension of leave.
3. Further time and residual discretion. The old paragraph 34C and Guidance did not provide an additional opportunity to remedy omissions. The application cover sheet did not establish a policy or legitimate expectation that further time would be granted. A residual discretion to act outside the Immigration Rules remained available in exceptional cases. Clear mandatory rules did not fetter it, as explained in R (Fu) v SSHD [2010] EWHC 2922 (Admin). Nothing in the claimant’s unexplained request for more time triggered consideration of that discretion, and its exercise would not have assisted him.
4. Administrative review. Under AR2.1, AR3.2 and AR3.4, administrative review concerned eligible decisions involving caseworking error, principally refusals or grants of leave on the merits. A rejection as invalid was not an eligible decision. Ground 9 therefore failed.
5. The judicial review claim was dismissed. Costs applications were reserved for written submissions if not agreed.