Bhandari & Anor v Secretary of State for the Home Department

Procedural fairness may require a student whose sponsor’s licence has been revoked to have a reasonable opportunity to obtain a replacement Confirmation of Acceptance for Studies. The applicant must establish that the Secretary of State created the obstacle, identify the further step fairness required, and show that it could have made a material difference. Substantive fairness and equal treatment are not freestanding grounds of judicial review. The appeal failed because the evidence did not establish that decision-making delay caused the inability to obtain a replacement certificate.

The first appellant, a Nepalese national, held Tier 4 leave while successive educational sponsors lost their licences. After a further sponsor’s licence was revoked, the Secretary of State gave her 60 days to obtain a replacement Confirmation of Acceptance for Studies. The application was refused when she failed to do so.

The First-tier Tribunal dismissed her appeal, finding that the decision complied with the Immigration Rules and that removal would not breach Article 8. The Upper Tribunal dismissed the onward appeal, finding no material error of law. The issue before the Court of Appeal was whether delay in deciding the application, and the absence of an explanation for that delay in the 60-day letter, made the refusal procedurally unfair.

The appeal was dismissed. Hamblen LJ gave the leading judgment, with which Asplin LJ and Nugee J agreed.

1. The appellant argued that delay by the Secretary of State had prevented her obtaining a replacement Confirmation of Acceptance for Studies and that procedural fairness required an explanation of the delay and further accommodation.
2. The court distinguished procedural fairness from substantive fairness. In Pathan and Islam v Secretary of State for the Home Department [2018] EWCA Civ 2103, the reference to common-law fairness in Patel (Revocation of Sponsor Licence: Fairness: India), Re [2011] UKUT 211 (IAC) was treated as referring to procedural fairness. R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25, [2018] 2 WLR 1583 indicated that substantive fairness and equal treatment are not freestanding grounds of judicial review. The legal foundation of the wider reliance on Patel was therefore considered doubtful.
3. The decisive difficulty was factual. The First-tier Tribunal had found that the appellant had not satisfactorily explained why she did not resume her ACCA studies elsewhere. The Upper Tribunal also noted the absence of evidence from colleges or universities supporting her account. Her own statement indicated that an A-rated sponsor was available but that she chose not to risk further money. Her chequered educational history was itself capable of explaining a refusal of sponsorship.
4. The appellant therefore failed to establish that the Secretary of State’s delay caused her inability to obtain a replacement certificate. Without that causal foundation, the proposed duty to explain or ameliorate the position could not arise. The further argument based on Tier 4 guidance had not been relied on below and was unsupported by findings. No material error of law or perversity was shown.

• Court of Appeal (Civil Division) — dismissed the appeal against the Upper Tribunal’s decision: [2019] EWCA Civ 129.
• Upper Tribunal (Immigration and Asylum Chamber) — dismissed the appeal from the First-tier Tribunal on 25 May 2016, finding no material error of law.
• First-tier Tribunal — dismissed the appeal from the Secretary of State’s refusal of further leave to remain on 8 October 2015.