Hasan, R (on the application of) v The Secretary of State for the Home Department

Receipt for an administrative review is not confined to physical possession of the decision. Under the Immigration Rules, it includes receipt at the applicant’s correspondence address, including deemed postal receipt, subject to the discretion to waive the deadline where refusal would be unjust. The Secretary of State must consider that discretion when asked and address the material relied upon.

For the five-year limit, the relevant period is the overlap between leave as a Tier 4 (General) Migrant or Student and the duration stated for a degree-level course on the CAS. Pre- and post-course leave is excluded. The calculation does not depend on actual attendance or whether individual modules are below degree level, provided the course itself leads to the required qualification.

The appellant challenged the refusal of further leave to remain as a Tier 4 (General) Student. The application was refused because the proposed MBA would take his degree-level study beyond the five-year limit. His administrative review application was also rejected as out of time.

He sought judicial review of both decisions. Upper Tribunal Judge Frances refused permission on the papers, addressing only the later refusal. At oral renewal, Upper Tribunal Judge Craig refused permission, holding that receipt at the correspondence address triggered the time limit and that the proposed administrative review would in any event have failed on the five-year issue. The appeal concerned the meaning of receipt, the duty to consider an out-of-time review, and the calculation of the five-year cap.

The appeal was dismissed. Lord Justice Floyd gave the judgment and Lady Justice Nicola Davies agreed.

1. The Court applied the approach to interpreting the Immigration Rules stated in Mahad v Entry Clearance Officer [20019] UKSC 16 and Odeola v Secretary of State for the Home Dept [2009] UKHL 25. The Rules are construed sensibly according to their natural and ordinary meaning, read against the Rules as a whole and the administrative function they serve.
2. Under paragraph 34R, receipt by the applicant includes receipt at the correspondence address, not merely actual physical possession. The deemed-receipt provision therefore applied. Whether the deemed date or the appellant’s admitted date was used, the administrative review was out of time.
3. The Secretary of State had to consider the discretion to waive the time limit when expressly asked to do so. Applying R (Behary and Ullah) v Secretary of State for the Home Department [2016] EWCA Civ 702, the response adequately addressed the material relied upon. Sending the decision to the correspondence address supplied by the appellant meant that refusal to waive the deadline was not arguably unlawful.
4. The challenge to the February decision had not been treated as a direct judicial review challenge and was out of time. Under rule 28(2) of the Upper Tribunal (Procedure) Rules 2008, it was not appropriate to treat it as such for the first time on appeal. The Court nevertheless considered the five-year issue as an alternative.
5. For paragraph 245ZX(ha), the relevant period is the overlap between leave as a Tier 4 (General) Migrant or Student and the stated duration of a degree-level course identified on the CAS. Pre- and post-course leave under rule 245ZY(b) is excluded. The calculation does not require an inquiry into actual study, vacations or withdrawal from the course. Islam [2013] UKUT 608 (IAC) was applied and explained accordingly.
6. A course qualifies if it leads to a qualification at the required level. Individual modules below degree level do not alter that conclusion. Mirza [2013] UKUT 41 (IAC) was distinguishable because it concerned a different paragraph of the Rules. The corrected calculation still exceeded five years, so the administrative review could not have produced a different result.

1. Court of Appeal (Civil Division) — On 12 March 2019, dismissed the appeal. The first ground was rejected, and the second ground was considered only as an alternative.
2. Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Craig refused permission to apply for judicial review at oral renewal on 26 January 2016.
3. Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Frances refused permission on the papers on 24 September 2015, addressing only the refusal of administrative review.