Kaur & Anor v Secretary of State for the Home Department

A tribunal may examine passport retention when it may have caused a later refusal of leave to remain. Under Rule 322(9) of the Immigration Rules, refusal for failure to produce documents is prima facie unlawful if the failure resulted from an act or omission by the Secretary of State. The applicant must establish a causal connection. Passport retention remains discretionary, and exceptional circumstances may justify a challenge, but ordinary difficulty in finding sponsorship is insufficient. Fact-specific decisions should be cited only where they contain a relevant legal principle not found in reported authority. A decision involving materially different facts does not assist.

The first appellant, a Tier 4 student migrant, and her dependant spouse challenged refusal of further leave after their educational sponsor surrendered its licence. The Secretary of State retained the appellant’s original passport but supplied an attested copy and an explanatory leaflet, then allowed 60 days to obtain fresh sponsorship or a new Confirmation of Acceptance for Studies.

The First-tier Tribunal dismissed the appeal on 9 December 2016, and the Upper Tribunal rejected the onward appeal on 15 September 2017. The second appeal concerned jurisdiction, reliance on Nanette Marcellana v SSHD UT 1A/01888/2013, and whether exceptional circumstances required return of the passport under section 17 of the Asylum and Immigration Act (Treatment of Claims) 2004. The central issue was whether passport retention caused or materially contributed to the refusal.

1. Appeal dismissed. The Court of Appeal unanimously dismissed the second appeal.
2. The First-tier Tribunal and Upper Tribunal had jurisdiction to consider passport retention because it could be relevant to whether the refusal of leave was lawful. Under Rule 322(9) of the Immigration Rules, a refusal based on failure to produce documents would be prima facie unlawful if the failure resulted from an act or omission by the Secretary of State. The applicant nevertheless had to establish a causal connection between retention and refusal.
3. The unchallenged findings showed that the appellant had an attested passport copy and an explanatory leaflet, and that no evidence supported her assertion that colleges required the original passport. The retention therefore did not cause or materially contribute to her failure to obtain sponsorship or a new CAS. The appeal accordingly failed on its merits, not for want of jurisdiction.
4. Marcellana did not assist. Citation of such an authority was permissible only if it contained a relevant legal principle not found in reported authority. The decision contained a fact-specific finding and involved materially stronger facts, so ground 1 failed.
5. Section 17 of the Asylum and Immigration Act (Treatment of Claims) 2004 conferred a discretionary power to retain documents where the statutory conditions were met. Exceptional circumstances might make retention unfair or unlawful, but none existed here. Ground 2 therefore failed.
6. Coulson LJ’s further observations were unnecessary to the result. He considered that section 17 did not necessarily require prior curtailment of leave, and that leave continued under section 3C of the Immigration Act 1971 could still support reasonable suspicion of liability to removal. He also considered the reasoning in R (on the application of SW) v SSHD [2018] EWHC 2684 (Admin) analogous. Floyd LJ added that fact-specific authorities generally provide little assistance when applied to different facts.

• Court of Appeal (Civil Division): On 1 July 2019, the second appeal was dismissed unanimously.
• Upper Tribunal (Immigration and Asylum Chamber): On 15 September 2017, the appeal from the First-tier Tribunal was rejected as without merit.
• First-tier Tribunal: On 9 December 2016, the appeal against the refusal of further leave was dismissed. The tribunal found that the attested passport copy and explanatory leaflet gave the appellant an adequate opportunity to obtain fresh sponsorship.
• Secretary of State: On 22 October 2015, the application for further leave was refused after the 60-day period expired without a valid CAS or sponsorship.