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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ali, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 4393 (Admin) (05 December 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4393.html Cite as: [2014] EWHC 4393 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5 December 2014

MR JUSTICE JAY:

1. This is an application for judicial review of the defendant's decision given on 16 October 2012 to refuse the claimant's application for leave to remain in the United Kingdom as a Tier 4 General Student, permission having been granted by Lord Justice Jackson on 14 April 2014 on a single ground.
2. The essential factual background to this application may be very briefly outlined. The claimant is a 25-year old citizen of Pakistan. He came to the United Kingdom on 21 September 2010 with an entry clearance as a Tier 4 General Student valid until 15 September 2011. On that very day the claimant made an application for further leave to remain as a Tier 4 General Student to study at the London School of Business and Finance. It is slightly unfortunate that the claimant should have chosen to wait until clearly the very last moment before making such an application.
3. I have been given further information as to what happened in relation to his application and in relation to the claimant's dealings with this college. Mr Ali, in his very clear and courteous oral presentation to me, explained he paid the sum of £6,150 to this institution. Indeed, I knew about that since it was referred to in the judgment of the deputy judge. It appears that this sum - even now - has not been repaid to him. In my view that is a sad and unfortunate state of affairs but it cannot form the subject matter of this application for judicial review. More pertinently, as the Secretary of State has pointed out, the application for a variation of leave to remain as a student in September 2011 attracted a fee of £386. This is referred to in the Secretary of State's subsequent decision letter.
4. On 12 October 2011 the defendant rejected the application as invalid and returned it to him because it was not accompanied by the requisite application fee. It appears from the claimant's own grounds of appeal that there had been earlier mistakes with the application form but, in my view, nothing turns on that. What happened, according to the Secretary of State, is set out in her decision letter dated 12 October 2011 (and in particular that part of it at page 59 of the bundle). The Secretary of State recognised that debit card details had been provided but stated that the issuing bank rejected payment. Having looked at Mr Ali's grounds of appeal against the decision of the deputy judge initially refusing permission to apply for judicial review, it was not put in issue that there were insufficient funds in his account although that is a point which he now seeks to take before me. In my judgment however he cannot be heard to say that on the basis of the information I have. In any event, it makes no difference since that issue has become superseded by events.
5. On 11 May 2012, at which point the claimant's leave to remain in the United Kingdom had long since expired, he made another application for leave to remain as a Tier 4 General Student, this time to study at the London International College of Management. The tuition fees were £2,500. That application was supported by Confirmation of Acceptance of Studies, bearing the acronym CAS, which in effect is a certificate issued by the college. It is a condition precedent really to the issuing of such a certificate that the college is one approved by the Secretary of State. Given that the claimant was making a fresh application - admittedly out of time on 11 May 2012 - and was not seeking to resurrect the earlier application, I should emphasise that what happened in relation to the earlier application is no longer really relevant.
6. Unfortunately for the claimant, on 28 June 2012, the Tier 4 sponsor licence of this college was revoked. Mr Ali told me that he was unaware that that had taken place, and I am quite prepared to proceed on the basis that he is entirely right. Indeed, there is no evidence that he was told. On 16 October 2012 the defendant refused the application on the simple basis that the college was not on the Tier 4 Sponsors Register and the CAS was invalid.
7. The claimant has remained in the United Kingdom since that date. It appears he is still trying to sort out, if I can put it in those terms, a proper educational institution which can supply him with the requisite CAS. In the meantime he has not been repaid the sum of £2,500 which has been pocketed by this particular college. It is not really appropriate for me to say anything about the £6,150 since I can see that possible issues may arise in relation to that. Frankly, I can see no proper basis on which the second institution (the London International College of Management) could properly be withholding repayment of the £2,500, and in my view it should be doing so forthwith.
8. Two judges of this Division have refused permission to apply for judicial review in this case. Lord Justice Jackson granted permission on the sole ground that it was arguable that the defendant's refusal decision was procedurally unfair because the claimant was not given an opportunity to find another educational institution and submit a revised application, in line with the principles explained by the Upper Tribunal Immigration and Asylum Chambers in Patel, Revocation of Sponsor Licence - Fairness India [2011] UKUT 00211 (IAC).
9. The claimant appears in person today and has advanced a number of clear points. He has said that he has fulfilled all the requirements at all material times and that what has happened is not his fault in any way. It is the college's fault. They have retained his money. All of this has caused him mental and physical distress. For present purposes, I am prepared to accept most of what the claimant has said, save for this one important finding. He says that he has fulfilled all the requirements. The difficulty is that the application he made to the second institution in 2012 was at a time when he did not have extended leave to remain in the United Kingdom. It is also unfortunately the case that the college in relation to which his second application was made has lost its credentials vis-à-vis the Secretary of State. Therefore, in that respect he has not fulfilled all the requirements.
10. The issue which arises is whether the claimant may put himself within the Patel principle, because Lord Justice Jackson felt that it was arguable that he could. The issue which arises on Patel is quite a technical one and it requires some legal experience and training to understand. It was not really a point which the claimant, with respect to him, was able to develop in any way. Fortunately, however, this court has the benefit of the presence and submissions of Mr Zane Malik of counsel. With his help, I was able to get to the bottom of the issues.
11. My pre-reading of the case led me to the firm provisional conclusion that this case was distinguishable from Patel for the reasons which I will now explain. The ratio of Patel is that where a sponsor's licence has been revoked by the Secretary of State during the currency of an application for variation of leave, and the applicant for variation is both unaware of the revocation and not party to any reason why the licence has been revoked, basic standards of fairness require the Secretary of State to afford such an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined. It is quite true that in the present case this claimant was unaware of the revocation and he was not party to any reason why the licence had been revoked. It is also fair to point out that he was not in fact given a reasonable opportunity to vary his application by identifying a new sponsor. So the issue starkly arises as to whether the principles explained by the Upper Tribunal in Patel apply by parity of reasoning to the present case.
12. Unfortunately for the claimant, the limits of the Patel decision do need properly to be understood. The starting point is Section 3C of the Immigration Act 1971 which was inserted in that Act in 2002. The effect of Section 3C is as follows: that in any case where an in-time application is made for variation of leave the applicant's extant leave is extended by virtue of the statutory provision until, at the very least, the Secretary of State has determined the application. Subsidiary issues arise in relation to refusal by the Secretary of State of such an application and any subsequent appeal. Those issues are academic for present purposes.
13. The key point is that one has to make an in-time application. It is in that context that paragraphs 20 and 21 of Patel are relevant. I need not set those out for the purposes of this judgment but I have them well in mind.
14. It is quite clear to me that the whole premise of Patel is that in that case the applicant had made an in-time application. In those circumstances it was unfair for the Secretary of State in all the circumstances - particularly those pertaining where the applicant had no idea that the licence had been revoked - not to give Mr Patel an opportunity to have a second bite of the cherry before his extant leave expired. This is because, as the Upper Tribunal explained, a refusal of leave to remain is a very serious step for applicants.
15. All those considerations do not apply, in my judgment, in a case where the claimant does not have an extant leave at the time he makes the relevant application. Those of course are the circumstances of the present case. He could not rely on Section 3C of the Immigration Act 1971. He had no extension of his leave by force of that statutory provision. Instead, he was making an application at a time when he did not have leave, where he could not satisfy the strict terms of the relevant immigration rule, and where he was really reliant on the grace or mercy of the Secretary of State to consider his application notwithstanding all those difficulties.
16. The Secretary of State in the instant case could have refused the application on any basis. In fact, she chose to do so on the straightforward basis that the institution's licence had been revoked. That, she was quite entitled to do. Moreover, she was quite entitled to do it without giving this claimant a second bite of the cherry to which I have referred. It follows that the Patel principles do not apply to the present case. As I have explained, it is a paradigm case for an out-of-time application where the claimant really had to take his chances with the Secretary of State. But in the clear circumstances which arise, the Secretary of State was wholly entitled to follow the course which she did.
17. The only remedy (if that be the right term) left to this claimant is to put in a properly constituted, admittedly out-of-time, application to the Secretary of State with the appropriate fee and in relation to a college which is a bona fide institution and which has a proper licence. The Secretary of State may well say it is far too late now but that is the claimant's only hope, in my judgment.
18. For all those reasons this application for judicial review must be dismissed.