Dharmeshkumar Bhupendrabhai Patel & Anor, R (on the application of) v The Secretary of State for the Home Department

Under the points-based scheme, a student applicant bears the risk that required documents are incomplete when the application is decided. Where a valid Confirmation of Acceptance for Studies is absent, the Secretary of State may normally refuse the application without investigating the withdrawal, notifying the applicant of the reasons, or allowing time to find a replacement sponsor.

Public-law fairness may require a period of grace only where the problem was caused by the Secretary of State’s own act or omission. Sponsor-reporting duties and general obligations to supervise sponsors do not create a duty to investigate every withdrawal or suspend or revoke a licence. Such duties would undermine the scheme’s predictability, administrative simplicity and certainty.

The applicants challenged the refusal of the First Applicant’s application for leave to remain as a Tier 4 (General) Student Migrant. His college had withdrawn the Confirmation of Acceptance for Studies relied upon in the application, without notifying him. The Second Applicant’s application was dependent on his.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal refused permission to appeal, and McGowan J refused permission to proceed with judicial review of that decision. The applicants sought permission to appeal to the Court of Appeal, arguing that the Secretary of State should have investigated the withdrawal, notified the Applicant and allowed 60 days to find a new sponsor. The central issue was whether that challenge was arguable under the Cart criteria.

Per Hickinbottom LJ, with Moylan LJ agreeing: the application for permission to appeal was refused.

1. The application concerned a proposed judicial review of a second refusal of permission to appeal. The Cart criteria, essentially the second-appeals criteria, therefore applied.
2. Under the Immigration Rules, the points-based scheme places the burden on the applicant to provide the specified documents and information. A valid Confirmation of Acceptance for Studies was a specified requirement. If it was absent when the application was considered, the Secretary of State was generally entitled to refuse the application without making further enquiries, notifying the applicant of the deficiency, or allowing an opportunity to rectify or comment.
3. A departure from that general rule may be required by public-law fairness where the problem jeopardising the application was caused by the Secretary of State’s own act or omission, such as revocation of a sponsor’s licence. It was insufficient that the Secretary of State could have made enquiries, or that the applicant was not personally at fault. Patel (revocation of sponsor licence – fairness) India, [2011] UKUT 211 (IAC), provided an example of the limited exception.
4. The ratio of EK (Ivory Coast), [2014] EWCA Civ 1517, was that the points-based scheme is robust and that the applicant generally bears the risk of incomplete information or administrative error by the college. The majority’s reasoning was based on the Secretary of State not being responsible for the withdrawal, rather than on the precise state of her knowledge. That authority was applicable and determinative.
5. The fact that a college was required to report a CAS withdrawal, or that the Secretary of State had broad duties to supervise sponsors, did not create an obligation to investigate whether every post-application withdrawal was lawful or to suspend or revoke the sponsor’s licence. Such a requirement would undermine predictability, administrative simplicity and certainty. The guidance could not be transformed into such a duty.
6. The new ground had not been included in the original notice of appeal or raised before the First-tier Tribunal. Under rule 19(4)(a) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, there was a strong argument that it had been raised too late. In any event, the substantive challenge was unarguable because the Secretary of State bore no responsibility for the college’s withdrawal.

• Court of Appeal (Civil Division): refused the application for permission to appeal.
• High Court, Queen’s Bench Division, Administrative Court: McGowan J refused permission to proceed with judicial review of the Upper Tribunal’s refusal of permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Judge McGeachy refused permission to appeal.
• First-tier Tribunal (Immigration and Asylum Chamber): Judge Fenoughty dismissed the appeal against refusal of leave to remain.