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

Common law fairness may require the Secretary of State to allow a Tier 4 student time to obtain a new sponsor where she withdraws the existing sponsor’s authorisation while a valid application to vary extant leave is pending. The requirement is fact-sensitive. It does not extend on the same basis to an applicant whose leave has already expired and who makes a fresh application as an overstayer.

An invalid application does not extend leave under section 3C(2)(a) of the Immigration Act 1971. Nor is there a general duty to notify an applicant of a perceived deficiency in a confirmation of acceptance for studies before refusing an application, although particular circumstances involving responsibility on the Secretary of State’s part may require procedural protection.

The appellant entered as a Tier 4 student and applied to extend his leave one day before it expired. That application was rejected as invalid. He later made a fresh application supported by a confirmation of acceptance for studies, but by then he was an overstayer. His sponsor subsequently surrendered its licence, the confirmation was cancelled and the Secretary of State refused the application.

A Deputy High Court Judge refused permission to apply for judicial review: [2013] EWHC 4401 (Admin). Permission to appeal was ultimately granted on the limited ground that the court had failed to apply the fairness principle in Patel. The central questions were whether that principle benefited an applicant who was already an overstayer and whether Patel remained good law.

1. The appeal was dismissed unanimously. The fairness principle in Patel did not assist the appellant because his leave had expired before his fresh application. His invalid earlier application had not extended his leave under section 3C(2)(a) of the Immigration Act 1971. He was therefore already an overstayer when he made the application under consideration.

2. There was a material distinction between an applicant seeking to vary extant leave and an overstayer making a fresh application. In the former case, refusal without an opportunity to obtain a replacement sponsor may transform a lawful resident into an unlawful overstayer. In the latter case, refusal leaves the applicant’s existing status unchanged. Fairness did not require the Secretary of State to give this appellant a further 60-day opportunity to find another sponsor.

3. The applicable Tier 4 policy guidance did not assist the appellant. Its categories concerning permission which remained in force, expired while an application was awaiting decision, or would expire within 60 days did not cover his fresh application made after his permission had already expired.

4. The application fell to be decided under the Immigration Rules in force before the October 2012 amendments because it had been made before the transitional cut-off. Under the earlier rules, overstaying alone did not determine the application adversely. The later rules, however, introduced a 28-day limit for overstayers, subject to identified safeguards and exceptional circumstances. That subsequent disadvantage did not remove the material distinction from Patel.

5. Patel had neither been expressly nor impliedly overruled. Later authorities confirmed that fairness under the points-based system is fact- and context-specific. They distinguished cases where the Secretary of State caused and knew of the relevant change from cases involving errors or actions of a college for which she was not responsible. The general absence of a duty to give notice of a deficiency in a confirmation of acceptance for studies did not exclude exceptional cases in which fairness required further inquiry or an opportunity to respond.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The fairness principle in Patel remained good law on its own facts but did not apply to an applicant who was already an overstayer: [2016] EWCA Civ 36.
2. High Court, Administrative Court: A Deputy High Court Judge refused permission to apply for judicial review following an oral hearing: [2013] EWHC 4401 (Admin).
3. High Court: HH Judge Pelling QC had previously refused permission on the papers.
4. Court of Appeal permission proceedings: Elias LJ refused permission on the papers. Longmore LJ later granted permission after an oral hearing, limited to the ground concerning the principle in Patel.