Joshi & Anor, R (On the Application Of) v Secretary of State for the Home Department

Immigration correspondence is assessed by its substance and broad intent, rather than by an over-particular focus on form. A request for further leave which invokes article 8 private and family life may constitute a human rights claim for the purposes of section 94(1) of the Nationality, Immigration and Asylum Act 2002, even where its immediate purpose is to obtain time to find a new student sponsor. A lawful decision is not made a nullity by subsequent delay in notification, service irregularities, arrest or detention unless those matters establish an abuse of power affecting its validity. Leave extended under section 3C of the Immigration Act 1971 continues until written notification under section 4(1).

The appellants, an Indian husband and wife, challenged the refusal of the first appellant’s application for further leave to remain. Her Tier 4 sponsor’s licence had been revoked, and she sought time to find a new sponsor while relying on medical circumstances, continuing study and article 8 private and family life rights. The Secretary of State treated the application as a human rights claim, refused it and certified it as clearly unfounded. The decision was served during an enforcement visit after a period of delay.

The Administrative Court dismissed the judicial review claim: [2016] EWHC 216 (Admin). The appeal concerned whether the application was properly characterised as a human rights claim and whether the decision was void because of delayed notification, alleged abuse of power, arrest or detention.

The appeal was dismissed. Lord Justice Simon gave the judgment, with Lady Justice Macur agreeing.

1. Characterisation of the application. Communications to or from the Secretary of State should be read according to their substance and broad intent. They should not be treated as taxing statutes or detailed commercial contracts, particularly where written by an unrepresented applicant. The first appellant’s letter sought further time to secure a Tier 4 sponsor, but expressly relied on article 8 rights and was made when lawful removal could follow expiry of the relevant period. The Secretary of State was therefore entitled to treat it as a human rights claim.
2. Certification. The refusal letter considered private and family life, the medical circumstances and the wish to study. The conclusion that the claim was clearly unfounded and certifiable under section 94(1) of the Nationality, Immigration and Asylum Act 2002 was upheld. No separate challenge was advanced to the reasoning once the claim was properly characterised.
3. Validity of the decision. The matters relied on to establish nullity occurred after the decision dated 6 May 2015. The evidence did not show an abuse of power affecting the validity of that decision. The Court accepted that courts should remain alert to possible executive abuse, particularly where affected persons may lack legal assistance, referring to R (on the application of Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin). That general concern did not make the decision a nullity in this case.
4. Notification and detention. Under sections 3C(1) and 3C(2)(a) of the Immigration Act 1971, leave continued while the in-time application remained undecided. Section 4(1) required the relevant decision to be given by written notice, so the refusal took effect and leave expired on notification on 11 June. During the short period before notification, detention was protected by paragraph 16(2) of Schedule 2 because officials had reasonable grounds for suspecting that the appellants were overstayers. The Administrative Court’s conclusion, reached having considered R (Mohammed (Shahpoor)) v Secretary of State for the Home Department [2014] EWHC 4317, was not directly challenged.

1. Court of Appeal (Civil Division): dismissed the appeal against the Administrative Court’s decision.
2. Administrative Court: dismissed the judicial review claims concerning the characterisation, certification, notification and validity of the immigration decision: [2016] EWHC 216 (Admin).