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

Where an earlier application for leave to remain is alleged to have been received but lost by the Secretary of State, its existence and timing remain directly material to a later refusal if the earlier application would determine whether the applicant overstayed and whether the relevant qualification for the later application remained available. The evidence must be assessed cumulatively. The unexplained possession and retention of passports may be decisive evidence that an application was received. Procedural and technical objections cannot be used to create a no-win position where the difficulty arose from an error in the Secretary of State’s department. Where the original application cannot now realistically be determined, the court may quash the later decision and grant practical relief designed to place the applicant in the position he would have occupied had he not overstayed.

The appellant, a Nigerian national, had student leave which was curtailed to expire on 3 May 2013. He alleged that he sent an application for further Tier 4 leave on 17 April, with a certificate of acceptance for studies, but the Secretary of State had no record of receiving it. A later application was refused on the grounds of overstaying and the withdrawal of the certificate.

The Upper Tribunal dismissed the judicial review challenge, finding that the April application had not been proved. It also rejected arguments concerning further inquiries and a discretion outside the Immigration Rules. The Court of Appeal granted permission on the principal issue, considered the procedural objections, and determined whether the April application had been made and what effective relief should follow.

1. Appeal and preliminary objections. The Court of Appeal allowed the appeal, granted permission for judicial review and allowed the substantive challenge. The question whether the April application had been lodged was directly material to the later refusal: if it had been made in time, the appellant was not an overstayer and had a valid certificate of acceptance for studies. The issue was therefore neither academic nor defeated by his subsequent departure.
2. The suggested appeal route to the First-tier Tribunal did not bar judicial review. The point had not been raised below. In any event, the central complaint concerned an application which the Secretary of State said had never existed, rather than an immigration decision determining that application; the appellant had also been told that he had no right of appeal. [2015] UKUT 00353 (IAT) was not applied to require that route in these circumstances.
3. The disclaimer signed when the appellant recovered his passports did not prevent the claim. The parties accepted below that it had not withdrawn the judicial review proceedings. It could not prevent determination of whether the April application had been made, which was at the heart of the claim. Rule 34J of the Immigration Rules did not alter the result because the Secretary of State was not considering the alleged April application and did not accept that it existed.
4. On the balance of probabilities, the only proper inference was that the Secretary of State had received an application which was subsequently lost. The appellant’s preparations supported an inference of timely submission, but were insufficient alone. The unexplained possession and retention of his current and two former passports were critical. The Secretary of State had offered no satisfactory explanation for their presence in the passport bank or for failing to return them or notify him.
5. Sending the application to Croydon rather than Durham did not justify treating it as absent or invalid without notification. The Secretary of State should have informed the appellant of the defect or forwarded the application. The alternative grounds concerning further inquiries and an exceptional discretion outside the rules were not decided; they faced formidable difficulties and were unnecessary to effective relief.
6. The later decision of 27 August 2013 was quashed. The court had jurisdiction under section 68 of the Tribunals, Courts and Enforcement Act 2007 to decide the application for relief. It was unrealistic to require the Secretary of State now to determine the lost April application. The appropriate remedy was a declaration that the appellant was to be treated as not having overstayed, together with a direction permitting entry to the United Kingdom and normally 60 days to secure a course, obtain the appropriate certificate of acceptance for studies, and make a fresh application with the required fee and documents.
7. Vos LJ agreed with the first ground and the relief. He added that good government required sound judgment in defending litigation and that technical points should not be taken to place an applicant in a no-win position where the relevant difficulty resulted from departmental error.

• Court of Appeal (Civil Division): allowed the appeal from the Upper Tribunal’s refusal of permission, granted permission for judicial review, quashed the decision of 27 August 2013, and ordered practical relief.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Hanson refused permission to apply for judicial review on 4 September 2014.