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

For an application under paragraph 245ZX of the Immigration Rules, an applicant must satisfy both timing conditions in sub-paragraphs (l) and (m). The Secretary of State need not consider an exceptional-circumstances case that the applicant did not put forward. An application may also fail independently where the proposed studies do not commence within the prescribed period.

In a human-rights application, inadequate evidence of a claimed relationship may justify finding no genuine and subsisting family life. That conclusion can support certification under section 94 where there is no arguable case and no real prospect that the First-tier Tribunal would reach the contrary conclusion. Private life formed while immigration status is precarious attracts little weight under section 117B(5). Both appeals were dismissed.

The appellant, a Nigerian national and overstayer, brought two judicial review challenges. The first concerned refusal of a Tier 4 student application under paragraph 245ZX of the Immigration Rules. He argued that delays in obtaining an ATAS certificate and a Confirmation of Acceptance for Studies amounted to exceptional circumstances.

The Upper Tribunal, through UT Judge Chalkley, refused permission to apply for judicial review. The second challenge concerned refusal of a human-rights application based on claimed family and private life with the appellant’s wife, together with certification under section 94 of the Nationality, Immigration and Asylum Act 2002. Silber J and Jeremy Baker J refused permission in the High Court. The central issues were whether the Secretary of State had lawfully assessed the evidence and whether certification was justified.

Both appeals were dismissed.

1. Tier 4 application. Paragraph 245ZX of the Immigration Rules required compliance with both sub-paragraphs (l) and (m). The appellant had not shown that he submitted any exceptional-circumstances representations in support of his application. The Secretary of State was therefore entitled to apply the 28-day grace period in sub-paragraph (m) without considering that issue.
2. The court considered the late-produced correspondence. On a strict approach, an application to adduce it as fresh evidence might have been refused under the overriding objective in CPR Part 1 and the guidance in Ladd v Marshall [1954] 1 WLR 1489. The Secretary of State did not object, so the court considered the material and found on the balance of probabilities that the representations had not been submitted in support of the application.
3. There was also an independent and sufficient reason for refusal. The proposed course was due to begin considerably more than 28 days after the appellant became an overstayer. He therefore failed the condition in paragraph 245ZX(l), regardless of sub-paragraph (m).
4. Human-rights application. The evidence did not substantiate a genuine and subsisting relationship with the appellant’s wife. The decision letter was not to be construed like a statute. Read in context, its reference to a lack of cohabitation evidence meant a lack of persuasive or satisfactory evidence of a current, long-term relationship.
5. The Secretary of State was entitled to conclude that there was no arguable case, and no real prospect that the First-tier Tribunal would find genuine family life with substance. Following the approach in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, certification under section 94 of the Nationality, Immigration and Asylum Act 2002 was lawful in relation to both the family-life and private-life claims.
6. Under section 117B(5) of the 2002 Act, little weight was to be given to private life formed while the appellant’s immigration status was precarious. On the evidence, the Secretary of State was entitled to regard removal as proportionate.

• Court of Appeal (Civil Division): Both appeals dismissed: [2017] EWCA Civ 1253.
• Upper Tribunal (Immigration and Asylum Chamber): UT Judge Chalkley refused permission to apply for judicial review of the Tier 4 refusal.
• High Court, Administrative Court: Silber J refused permission on the papers, and Jeremy Baker J refused permission after an oral hearing, in the challenge to the human-rights refusal and section 94 certificate.