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

A judicial review court should not determine a challenge to an allegedly invalid immigration application where an adequate statutory appeal is available. A fee was essential to validity, and an application submitted without the correct fee did not extend leave under section 3C of the Immigration Act 1971.

Immigration Rules introduced after an application was made could be taken into account where the decision occurred outside the transitional period identified by the Court of Appeal. A decision to refuse leave because an unspent conviction made residence undesirable was lawful where it was rationally open to the Secretary of State on the evidence. The application was dismissed.

The claimant, a Thai national married to a British citizen, sought judicial review of the refusal of further leave to remain based on her marriage. Her earlier application had been rejected as invalid because it lacked the correct fee. Her later valid application was made after her existing leave had expired.

The claimant challenged the validity of the first application, the application of paragraph 284 of the Immigration Rules, the refusal to exercise discretion in her favour, reliance on Appendix FM and paragraph 276ADE, and the use of her unspent conviction under paragraph 322(5). A supplementary letter maintained the original refusal rather than replacing it.

1. First application and alternative remedy. The first application was invalid because the correct fee had not accompanied it, as required by regulation 7 of the Immigration and Nationality (Fees) Regulations 2012. The court assumed, without deciding, that the Secretary of State bore the burden of proving invalidity and held that the evidence discharged it. Any challenge to the validity of that application either belonged in a statutory appeal following an immigration decision or should have been brought promptly by judicial review.
2. Paragraph 284. The claimant’s valid application was made when she had no leave and was in breach of the Immigration Rules. Paragraph 284 therefore required refusal. The later letter maintained the original decision and did not create a new decision. The 28-day disregard introduced after the February 2013 decision could not be used to impugn that decision.
3. Discretion. R (Forrester) v SSHD [2008] EWHC 2307 (Admin) was distinguishable. The Secretary of State had considered several matters, including the conviction, family life, private life and the absence of insurmountable obstacles to family life in Thailand. The refusal to overlook non-compliance with paragraph 284(i) was not perverse or irrational.
4. Appendix FM and paragraph 276ADE. Applying Singh v SSHD; Khalid v SSHD [2015] EWCA Civ 74, the Secretary of State was entitled to take the new Rules into account because the decision was outside the two-month transitional window. The claimant had not shown that she would otherwise satisfy the requirements of Appendix FM.
5. Conviction and paragraph 322(5). The refusal based on undesirability was rationally open to the Secretary of State. The offence was serious and violent, and the claimant had provided no detailed evidence explaining why she should nevertheless remain. A late challenge based on policy guidance could not succeed without proper prior notice, and non-compliance could not be inferred from the decision alone.
6. The judicial review application failed and was dismissed.

First-instance judicial review. Permission was granted by Swift J on 26 November 2013. The Administrative Court dismissed the claim.