Samuel Okebaram Akudike, R (on the application of) v The Secretary of State for the Home Department

A decision allowing an immigration appeal because of procedural unfairness did not require the Secretary of State to grant Tier 4 leave. It required a fair opportunity to remedy the deficiency in the application.

Where Tier 4 leave depended on a valid Confirmation of Acceptance for Studies, a 60-day deferral of the outstanding application to enable the applicant to obtain and submit a new confirmation was, on the facts, a rational and reasonable implementation of that requirement. The Secretary of State was not responsible for a university’s misunderstanding of the chronological Tier 4 process, or for delay by the applicant’s solicitors.

The applicant sought judicial review of the Secretary of State’s alleged failure to implement a First-tier Tribunal decision, notified on 16 July 2013, which had allowed his appeal against the refusal of further Tier 4 student leave. The First-tier Tribunal had found procedural unfairness because the applicant had not been given a fair opportunity to provide a valid Confirmation of Acceptance for Studies (CAS).

The Secretary of State subsequently deferred determination of the outstanding application for 60 days so that the applicant could obtain a new sponsor and CAS. She later granted a further 60 days’ discretionary leave outside the Rules. The applicant contended that those periods were inadequate because universities would not admit him on the basis of his immigration status.

The central issue was whether those responses lawfully and rationally gave effect to the First-tier Tribunal’s determination.

1. The claim for judicial review was dismissed. The First-tier Tribunal’s determination did not require a grant of Tier 4 leave. It required the applicant to have a fair opportunity to obtain and submit a valid CAS.

2. The CAS used in the application for further leave had already supported an earlier successful application. It was therefore invalid under the Immigration Rules. The applicant could not obtain the required points without a valid CAS. A valid CAS, issued after acceptance on a course, is a prerequisite to a successful Tier 4 application; existing leave to study that course is not a prerequisite to seeking admission and a CAS.

3. The Secretary of State’s letter of 22 May 2014, deferring a decision for 60 days so that the applicant could find a sponsor and submit a valid CAS, was a rational and reasonable response to the binding First-tier Tribunal decision. The case was not within the evidential-flexibility provisions because a required valid CAS had not been supplied, rather than a supplied document being defective in form or content. The general law did not require an opportunity to remedy that deficiency: see Kaur v SSHD [2015] EWCA Civ 13. The Secretary of State nevertheless had to give effect to the unchallenged tribunal decision.

4. The evidence did not show that the 60-day period denied the applicant a reasonable opportunity to obtain a CAS. The applicant had notice of the Secretary of State’s position and made inquiries, but did not make a formal application to a university. The Secretary of State could not be held responsible for universities which misunderstood the proper sequence of application, CAS issuance and a Tier 4 application, nor for delay between service on the applicant’s solicitors and their passing documents to him.

5. The later 60-day discretionary grant of 18 August 2014 further supported, but was not necessary to, the conclusion that the Secretary of State had acted reasonably. Her responses of 22 May and 18 August 2014 were neither irrational nor unreasonable.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review claim dismissed. The Secretary of State’s responses to the First-tier Tribunal determination were held lawful.

• First-tier Tribunal: The applicant’s appeal against the refusal of Tier 4 leave was allowed on the basis that the decision was not in accordance with the law, because fairness required a fresh decision after an opportunity to provide a valid CAS.