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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 OCT 2014

Afzaal v Secretary of State for the Home Department [2014] EWHC 2215 (Admin); (2014) PLLR 087

Afzaal v Secretary of State for the Home Department [2014] EWHC 2215 (Admin); (2014) PLLR 087
Queen’s Bench Division, Administrative Court, Robin Purchas QC
9 July 2014

Summary

The Tier 4 visa condition that a person must give notice and seek permission to change educational conditions does not require further administrative act to become effective.

Detail

(1) The claimant, a Pakistani national, applied for judicial review of the defendant’s decision to refuse his further leave to remain as a Tier 4 general student.

(2) The claimant entered the UK in 2010 on a Tier 4 visa to undertake a 2-year course, but was not satisfied with the educational standards at the institution where he was studying. He applied and was accepted to a second educational institution without notifying the UKBA, completing a 1-year course there. The second institution advised him that he did not need to make a formal application for a change in course.

(3) The fact that he had left the first institution came to the attention of the UKBA in May 2011, and the matter was considered in December 2011. At that time, the UKBA decided that, as the claimant had less than six months left on his initial leave, it would not take enforcement action against him.

(4) The claimant gained acceptance to a third educational institution and sought further leave to remain after the expiry of his initial visa on 10 May 2012. The application for further leave to remain was received on 15 May 2012, and was denied due to his breach of the conditions his initial Tier 4 visa, and his having inadequate maintenance funds.

(5) The claimant filed suit on four grounds:

(1) there was no valid condition imposed on the original leave to enter and so no breach;

(2) the evidence provided of available funds was sufficient because the claimant had an established presence in this country;

(3) that the defendant acted unfairly in refusing the application; and

(4) the defendant failed to exercise her discretion.

(6) HELD: The claimant lost on all grounds.

(7) On ground (1), the claimant argued that the defendant’s powers under section 3(1) of the Immigration Act 1971 are discretionary, and that for a condition to be imposed, a further administrative act is required to apply the condition. The court held it would not be a natural reading of Article 5 under the Immigration Rules that the conditions required further administrative action to be effective. The limitation to a particular sponsor was clear on the face of the vignette on conditions, which constituted endorsement of the condition.

(8) On ground (2), the claimant’s submission of a further leave to remain after the expiry of his original leave to remain prevented him from qualifying for a reduced maintenance level on the basis of an established presence in the UK. The defendant was entitled to conclude based on the available evidence that the application had been submitted on 14 May 2012, 4 days after the end of the claimant’s initial entry clearance.

(9) On ground (3), the court did not find that the defendant acted unfairly, as the requirements of the visa rules were both clearly set out and broken in this matter. Additionally, the defendant is not required to go back to an applicant who failed to provide sufficient evidence to support an application to enquire whether the applicant wishes to submit further evidence.

(10) On Ground (4), the court found there was nothing to suggest that discretion was not considered.

Claim failed.

Key Paragraphs

[40] – Mandatory and discretionary conditions
[43] – Conditions on leave to enter
[47] – Limitation on entry clearance
[48]- Conditions on leave to enter
[64] – Post delivery
[65] – Timing of further leave to remain application
[70] – Unfairness
[72] – Further inquiries on applications
[73] - Unfairness
[75] – Discretion considered
[76] – Conclusion
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