Anwar v Secretary of State for the Home Department

A statutory power to impose a condition restricting a migrant’s studies includes a condition restricting study to a named educational institution. However, an Immigration Rule stating that leave will be subject to such a condition does not itself impose it on an individual.

Under Immigration Act 1971, section 4(1), the Secretary of State must exercise the power by giving the affected person clear written notice. General publication of the Rules, a BRP displaying a CAS number, or an informational leaflet will not suffice unless the restriction is unmistakably communicated. This requirement is particularly important where breach may have penal or removal consequences.

The appellant, a Pakistani national granted leave to remain as a Tier 4 (General) Student to study at Grafton Management College, also studied at DVC College. The Secretary of State refused his subsequent application for further leave, relying in part on an alleged breach of a condition restricting his studies.

The First-tier Tribunal dismissed his appeal on that issue. The Upper Tribunal upheld the finding of breach, following Bhimani (Student: Switching Institution: Requirements) [2014] UKUT 00516 (IAC), although it allowed the appeal on another issue and remitted the matter to the Secretary of State.

The appeal concerned whether the statutory power extended to a restriction on the institution of study and, if so, whether the Immigration Rules automatically imposed that restriction without individual written notice.

1. Appeal allowed on the second ground. Singh LJ, with whom Peter Jackson LJ agreed, held that section 3(1)(c)(ia) of the Immigration Act 1971 is broad enough to authorise a condition restricting a student to a particular educational institution. The first ground therefore failed. The earlier decision in Obed concerned the Act before Parliament introduced a specific power to restrict studies and did not assist the appellant.

2. A valid condition restricting the place of study must nevertheless be imposed on the individual. Paragraph 245ZY(c)(iv) of the Immigration Rules states that leave will be granted subject to the stated conditions. It does not itself exercise the statutory power or automatically attach the condition to every grant of leave.

3. Section 4(1) requires that power to be exercised by written notice to the person affected. This requires an individual administrative act and clear communication. The Secretary of State retains a discretion to grant leave outside the Rules, and a condition with potentially criminal and removal consequences must be made unmistakably known to the person subject to it.

4. The BRP did not state that the appellant could study only at Grafton Management College. The accompanying leaflet was expressly informational and addressed changing sponsor institutions. It did not clearly prohibit additional study at another college. The intended restriction was consequently never attached to the appellant’s leave, and he was not in breach of it.

5. The Court held that Bhimani [2014] UKUT 00516 (IAC) and R (Afzaal) [2014] EWHC 2215 (Admin) were wrong insofar as they treated the Rules as sufficient, without more, to impose the condition. Neither should be followed.

• Court of Appeal (Civil Division): Allowed the appeal on the second ground in [2017] EWCA Civ 2134. It held that no valid written notice had imposed the alleged study restriction.

• Upper Tribunal (Immigration and Asylum Chamber): Decision promulgated on 2 March 2015. It upheld the finding that the appellant had breached an immigration condition, but allowed his appeal on another issue because the Secretary of State had not appreciated and exercised her discretion. The case was remitted to the Secretary of State.

• First-tier Tribunal: Dismissed the appellant’s appeal on 23 October 2014, finding that his additional course of study breached an immigration condition.