24 Oct 2016, 31 mins ago

The case of R (on the application of Punam Naresh Binaura) v SSHD [2016] EWHC 1578 illustrates the importance of ensuring that the 28 day “buffer” period extended to migrants is borne in mind at all times.

The case involved an Indian national (C) who arrived in the UK in 2009 as the spouse of a Tier 4 (General) Student with leave valid until 28 February 2010. Her leave was subsequently extended in the same category until November 2013. Her most recent period of leave expired in April 2014. She made a fresh application within 28 days of cessation of her leave as a Tier 4 dependant spouse. The application was refused with no right of appeal. She thereafter made a further application 183 days out of time for leave to remain as her husband’s dependant spouse. The application was refused by the Secretary of State (SSHD) with no appeal rights. She sought Administrative Review but the SSHD upheld her decision to refuse the application. C sought judicial review. Sir Stephen Silber granted permission to apply for judicial Review on a non-specific ground that the threshold for arguability was low.

C argued that:

I.The SSHD should have exercised her inherent discretion under Paragraph 319C(j) of the Immigration Rule in C;’s favour. It was argued on her behalf, that the Rule contained discretion notwithstanding the fact C was an overtayer in beach of immigration laws for more than 28 days;

II.The SSHD failed to follow her published policy by refusing C’s application. The policy guidance states that “applications…will fall for refusal if you have overstayed for more than 28 days on the date of application unless there were exceptional circumstances which prevented you from applying within the 28 day period…if there were exceptional circumstances which prevented you from applying in time you must submit evidence of the exceptional circumstances with your application…”.See PBS (Dep) Guidance Version 11/2015 Para 37.

III.The refusal of the application was unfair.

IV.The Rule is incompatible with Article 8 and C’s Article 4 rights.

Nicholas Padfield QC (sitting as a Deputy High Court Judge) dismissed the claim concluding that:

I.With respect to Ground 1 of the claim, the assumption that the SSHD has a discretion to exercise in the application of the Rule is a false one. Paragraph 319 C (j) is mandatory. If the requirements of the Rule are not met the application will be refused. The terms of the Rule confirm the position (the applicant must meet the requirements). The SSHD therefore had no discretion under the Rule to relax the mandatory requirements, which it imposed. She was described as being bound by the Rule. C was an overtayer for more than 28 days and therefore could not meet the requirements. {Para 24 of the judgment} there is no suggestion in any judgment of the House of Lords or Supreme Court that an immigration Rule which is in mandatory terms is for that reason alone ultra vires (Reg. Sayaniya v Upper Tribunal [2016] EWCA Civ 85 followed). It was argued on C’s behalf that the mandatory nature of the Rule lead to the SHHD fettering her discretion. The judge reiterated that although the Rule is set out in mandatory terms, there was always a residual discretion outside the Rule(s), which to the relevant extent would not contravene the non-fettering principles. (Aafia Thebo [2013] EWHC 146 (Admin) followed.

II.The policy guidance was described by the judge as being clear and expressed in mandatory terms {32}. The SSHD’s discretion is under the Rule as it informs C that if there are exceptional circumstances, which prevented her from making an application within the 28 day period, those circumstances must be disclosed and would be considered by the SSHD. C’s submission that the guidance imposed a duty on the SSHD to consider the exceptional circumstances was only applicable in circumstances where the exceptional circumstances were disclosed with the application and evidence was supplied to substantiate those factors. Ms Binaura did not serve any evidence of exceptional circumstances. As such there was no basis for arguing that the SSHD failed to give effect to her guidance.

III.The fact that the rule was expressed in mandatory terms did not automatically make it unfair. C could have provided evidence of exceptional circumstances in line with the policy guidance, which would have been considered by the SSHD. Alternatively, she could have invoked the residual discretion of the SSHD outside the Immigration Rules {Para 42}. She did not. The judge concluded that there was no unfairness in the decision.

IV.The judge concluded, applying R (on the application of Bibi) v SSHD [2015] UKSC 68 [2015] 1 WLR 5055, a rule cannot be struck down or declared invalid if ” it will not be an unjustified interference with Article 8 rights in all cases and it is capable of being operated in a manner which is compatible with the Convention Rights (as per Baroness Hale {Para 45}. In this case, C had not made an application to the SSHD regarding an alleged violation of her rights under Article 8 of the ECHR. In any event there was little or no evidence suggesting that her rights under Article 8 had been engaged.

Judicial Review claim dismissed. Helpfully, applicants are reminded that within the Immigration Rules, there is provision for exceptional or compassionate circumstances to be considered by the SSHD in most applications even within the PBS. Outside the Immigration Rules, the SHHD always has a residual discretion to consider the individual circumstances of an applicant. Those factors must be clearly and thoroughly disclosed, and evidence supporting the facts must be provided to the SSHD.