Sneha Sudha Prathipati v The Secretary of State for the Home Department

Where published immigration guidance permits discretion for exceptional circumstances, it must be applied consistently with procedural fairness. A requirement that evidence of exceptional circumstances accompany an application cannot be applied rigidly where the applicant’s ignorance of the facts constituting those circumstances made compliance impossible.

The Secretary of State must consider whether exceptional circumstances justify disregarding an overstay in such a case. Administrative review is an effective alternative remedy only if reviewers can identify and correct errors in the original decision.

The applicant sought leave to remain as the unmarried partner of a Tier 2 Migrant. Her earlier immigration appeal process had ended without her knowledge because notification of the refusal of permission to appeal was sent to her former address. She consequently became an overstayer without actual knowledge of that fact.

Her later application was refused under paragraph 319C of the Immigration Rules. The Secretary of State also failed to consider a second tranche of relationship evidence. Administrative review maintained the refusal without engaging with those errors. After the Court of Appeal granted permission and remitted the claim, the Upper Tribunal determined whether the refusal and review were unlawful.

1. The judicial review claim succeeded. The refusal of leave to remain dated 21 August 2015 and the administrative-review decision dated 17 September 2015 were quashed. The application was remitted to the Secretary of State for reconsideration.

2. Paragraph 319C(j) of the Immigration Rules ordinarily disregarded only 28 days’ overstaying. However, the published guidance recognised a discretion to allow an application made after that period where exceptional circumstances were evidenced. The categories of exceptional circumstances were not closed and depended on fact and degree.

3. The requirement in the guidance that evidence be supplied with the application could not be applied rigidly where the applicant did not know the facts that made the circumstances potentially exceptional. Such an application of the requirement would produce unfair and absurd results. The respondent was therefore required to consider exceptional circumstances and exercise the discretion.

4. The applicant’s solicitors’ errors were relevant but not necessarily fatal. The respondent’s failure to alert the applicant to the tribunal decision, despite knowing or having reason to know that she was unaware of it, was procedurally unfair. It was also material that the respondent had overlooked relationship evidence both initially and on review.

5. Administrative review was intended to provide a swift and economical alternative to judicial review. Its effectiveness depended on reviewers being able to detect and reverse initial errors. Here the reviewer was given a clear explanation but compounded the errors, so the review could not preserve the refusal.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the judicial review claim, quashed the refusal and administrative-review decisions, and remitted the leave application for reconsideration.

• Court of Appeal: Granted permission on 17 May 2018 and remitted the claim to the Upper Tribunal for substantive determination.

• Administrative review: The Secretary of State maintained on 17 September 2015 the refusal dated 21 August 2015.