Khajuria, R (On the Application Of) v Secretary of State for the Home Department

The Points Based System may produce harsh outcomes without being unlawful. A claimant cannot establish invalidity merely by showing that an evidential requirement is impossible for a self-defined class of applicants to satisfy. Detailed documentary requirements may form part of the policy’s substance, not merely its practical machinery, where they promote predictability, administrative simplicity and certainty. The absence of flexibility is not, without more, irrational or unreasonable. An applicant who cannot satisfy a mandatory evidential requirement has no entitlement to discretionary relaxation of that requirement within the rules. A separate application for leave outside the rules may be available, but the Secretary of State is not required to consider that discretion unless it is properly invoked.

The claimant challenged the Secretary of State’s refusal of further leave to remain as a Tier 1 (Entrepreneur) Migrant and the refusal of administrative review. The refusal followed her failure to provide Real Time Information printouts required by paragraph 46-SD(h)(i) of Appendix A to the Immigration Rules to establish qualifying job creation.

She argued that the evidential requirement was unreasonable because her business did not operate a PAYE system requiring RTI submissions, and that the Secretary of State should have exercised, or considered exercising, residual discretion. The central issues were whether the requirement was unlawful and whether discretion existed to dispense with it within the Points Based System.

1. Claim dismissed. The requirement in paragraph 46-SD(h)(i) of Appendix A to provide RTI evidence was not invalid merely because a person in the claimant’s position could not comply with it. The claimant could not define herself as a class unable to provide RTI and then rely on impossibility.
2. The evidential requirements formed part of the policy’s principle, rather than being merely practical machinery. The Points Based System is designed to secure predictability, administrative simplicity and certainty at the expense of discretion. Hard outcomes in individual cases do not establish unreasonableness. The RTI requirement had a rational and legitimate objective: it supplied cogent evidence, readily verifiable from HMRC, that the claimed jobs existed and complied with relevant requirements.
3. Even assuming that the claimant was unable through no fault of her own to satisfy the rule, that did not establish unlawfulness. The strict operation of the system was intended to avoid inconsistent treatment and partiality, and the responsibility lay on applicants to comply with the rules and guidance precisely.
4. There was no discretion within the rules to dispense with the RTI evidential requirement. The claimant had not made a separate application for leave outside the rules. The Secretary of State was therefore entitled not to consider such discretion in the present application.
5. The judge added that the claimant’s circumstances appeared arguable and that a future application outside the rules should be considered sympathetically. That observation did not alter the dismissal of the judicial review claim.

First-instance judicial review. The judgment records earlier refusals and administrative reviews, but no prior court decision.