Immigration law and procedural fairness
Associate, Veale Wasbrough Vizards
The question of what is procedurally fair was assessed in the recent case of Marghia by the Upper Tribunal.
This was an appeal by the Secretary of State for the Home Department (SSHD) against a First Tier Tribunal decision to allow the appeal of the Claimant after the SSHD refused her further leave to remain in the UK as a Tier 4 (General) Student.
The Claimant came to the UK as a Tier 4 (General) Student. Her visa expired on 4 December 2013. Before her visa expired, she applied for and was accepted on another course due to begin on 16 December 2013. The provider of that course subsequently changed the course start date to 13 January 2014, stating the Christmas period as the reason. The provider then issued a certificate of acceptance for studies to the Claimant.
Had the Claimant been able to start the new course on 16 December 2013, she would have fallen within the requirement for a new course to begin no more than 28 days after the expiry of her previous visa. The change in start date meant that she no longer qualified and as a result was required to leave the country.
The Claimant took her case to the First Tier Tribunal. There it was held that the SSHD was under a common law duty to act with fairness and it had fallen foul of that duty by refusing the Claimant's application to remain in the UK. It reasoned that it was not the fault of the Claimant that she had found herself in this predicament.
The SSHD appealed. The Upper Tribunal concluded that the First Tier Tribunal had erred in its construction of the duty to act with fairness. The common law duty to act with fairness imposes a duty to make decisions in a fair manner - in other words, a duty to act with procedural fairness. The duty does not go so far as to require that decisions are substantively fair. The courts will only interfere in the latter sense if the decision was one that no reasonable decision-maker could have made.
Seen in this context, the decision of the SSHD could not be seen as unfair. The Immigration Rules were clear and the SSHD had enforced them correctly. As such the SSHD's appeal was allowed.
This case reinforces the importance of following the Immigration Rules carefully when making an immigration application. Whilst there may be circumstances in which the SSHD will be prepared to exercise its discretion in relation to applications which fall outside of the Rules, this is inherently uncertain and, as this decision shows, very difficult to challenge.
Although a court or tribunal may sympathise with an applicant whose application has been rejected, unless the decision is 'procedurally' unfair (or so unreasonable that no reasonable decision-maker could have made it), that court or tribunal will not be able interfere with it.
For more information, please contact Judith Hockin on 0117 314 5302.
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