Issues, Reasoning and Conclusions:
40. The applicant, Ms Prathipati, submitted that the respondent failed to consider the reasons for her overstaying, which occurred without her knowledge, was inadvertent and unintentional. She could not have known that her appeal rights were exhausted in March 2015 and, had she known, she would have taken steps to preserve her rights and not allowed the overstay to happen. 41. She pointed out that the letter withdrawing the appeal had been explained to the case worker at the appointment on 15 July 2015 and the case worker had said nothing about the earlier refusal of permission to appeal, for reasons that are unclear. She had only discovered the refusal of permission on receipt of the refusal letter of 21 August 2015. If Mr Duncan Wood, the case worker, had mentioned the point at the appointment on 15 July, she would have been able to present the evidence in support of her “exceptional circumstances” straight away. 42. She added that, on the administrative review, the respondent did not consider properly the evidence either in relation to the overstay and the exceptional circumstances in which it occurred, or in relation to her subsisting relationship with her partner, documented in the unconsidered second tranche of documents in addition to the first tranche of documents, said to be insufficient. The case made in the online application for administrative review was simply ignored. 43. The applicant pointed out that she had made enquiries of her former solicitors about the reason why her new address was not substituted for her old address on the FTT’s system. She had done everything she could to discover the status of appeal. It was not realistic or fair to say that she could have withdrawn her application for permission to appeal earlier; she had no reason to do so. If the appeal went against her, she would have up to 28 days in which to make a fresh application. 44. In the event, she did not wait for the outcome of the FTT proceedings, once she had tried and failed to discover the true position. The faxes that were sent by the solicitors had been sent to the “IAFT4”, “permission to appeal” department as indicated by the FTT and “if that’s not where we [were] supposed to send the fax they could have reverted with some sort of communication or at least they shouldn’t be accepting it”. 45. For the respondent, Mr Thomann did not dispute the applicant’s proposition that the second tranche of documents was overlooked. He accepted that this was a procedural flaw. He accepted also the applicant’s factual case that she had been unaware of the outcome of the FTT proceedings until she received the decision letter. He said that despite all that, the decision was not unlawful because there was no possibility of the applicant being able to establish the necessary “exceptional circumstances”. 46. He pointed out that, according to the mandatory guidance, to show exceptional circumstances, an applicant for leave to remain had to produce the supporting evidence at the same time as making the application for leave to remain. Without such evidence, there could be no exceptional circumstances that could, according to the guidance, confer a discretion to allow the application to succeed even if made outside the 28 day period of grace referred to in paragraph 319C(j) of the Immigration Rules. 47. Mr Thomann’s argument was that the mix up over fax numbers was the fault of the applicant’s solicitors and could not qualify as exceptional circumstances since it was a fault attributable to the applicant. Furthermore, as demonstrated by the Binaura case, the regime under paragraph 319C created “bright line” rules admitting of no discretion except as provided for in the mandatory guidance, which required to be done what was not done in this case: producing the evidence supporting special circumstances at the same time as making the application for leave to remain. 48. Mr Thomann submitted that where an application for leave to remain is made outside the 28 day period of grace, even if the applicant does not know that period has expired, and the application is made without any evidence to support a case of exceptional circumstances, the respondent is not required to consider exercising any discretion. It does not help the applicant that ignorance of the evidence supporting the special circumstances is what constitutes the special circumstances. 49. He went on to submit that at the administrative review stage, the review process is confined to remedying case working errors. At that stage, the reviewer is presented with a decision for review which was, at the time, made without evidence supporting special circumstances for going beyond the 28 day period. Accordingly, Mr Thomann argued, no case working error was made and the reviewer was justified in upholding the decision on the ground of overstay exceeding 28 days. 50. Therefore, Mr Thomann submitted, the reviewer’s adverse decision was correct even though he or she wrongly overlooked the second tranche of documents supporting the existence of the two year relationship. That defect did not matter because there was no prospect of the 28 day threshold being disregarded. That meant the applicant was without a remedy, but that was the fault of her solicitors, a fault attributable to the applicant herself. 51. As he put it in his skeleton argument: “regardless of the question whether the matters advanced by the Applicant amounted to exceptional circumstances, the Applicant simply did not submit any of this evidence … to the Secretary of State at the time of the impugned decision in August 2015; the failure to exercise discretion was not, it is clear, unlawful”. The regime is rigid, he said; the applicant’s remedy here is to make a fresh human rights based application. 52. I come to my reasoning and conclusions. The main grounds of challenge are, first, that the manner in which the application was determined was unfair to the applicant; and second, that the respondent failed to exercise the discretion to recognise exceptional circumstances which would justify a disregard of an overstay lasting longer than 28 days. As will be seen, these two grounds of challenge are linked. 53. The essence of the applicant’s case was helpfully summarised as follows in the judgment of Singh LJ granting permission to appeal, at [29]: “The Secretary of State has, it is conceded, a discretion. That discretion must be exercised in accordance with her publicly pronounced policy …. . Further, it is submitted that there was an acknowledged failure even to consider exercising that discretion. For that reason it is straightforwardly submitted that the outcome of a reconsideration if there were a correct self direction as to the law, cannot be anticipated by the court or by the Upper Tribunal.” 54. It is noteworthy that the reference to a “discretion” in the respondent’s guidance is not found in the Immigration Rules themselves. The text of paragraph 319C contains no reference to any discretion to waive the maximum 28 day overstay disregard. But despite the mandatory language in which paragraph 319C is framed (as pointed out in the Binaura case), the guidance recognises that the inflexibly worded rules must be, to a degree, treated as including an element of flexibility in their application. 55. Thus, while the rules themselves say nothing about such “exceptional circumstances”, the guidance does. Examples are given in it of what might constitute such circumstances. They are stated to be examples, not an exhaustive list. The guidance does also state that evidence to support a case of exceptional circumstances must be presented at the time when the application is made. 56. In the present case, the time when the application was made was very shortly before 15 July 2015, the date on which the applicant and her partner went to see the case worker, Mr Duncan Wood. Among the documents presented to him that day, potentially supporting a case of exceptional circumstances, was the letter purporting to “withdraw” the application for permission to appeal. That letter was, on its face, inconsistent with the applicant being aware of having overstayed for more than 28 days. 57. Mr Duncan Wood did not provide a witness statement and nor did anyone else from the respondent. I am therefore left unaware of when and how he, or anyone within the organisational structure of the respondent, became aware of the outcome of the application for permission to appeal against the FTT’s decision. It is likely that someone within the Home Office had access to a record of the decision from shortly after 19 February 2015, when it was made. Just as it was sent to the applicant (at her old address), so it was presumably sent to the respondent. 58. At any rate, Mr Duncan Wood had become aware of it by 21 August 2015, if not earlier. At the oral hearing of this application, I asked Mr Thomann if he could shed light on how and when the respondent, as an organisation, became aware of the FTT’s decision. He was unable to do so, being without instructions on the point. In the absence of other evidence, I infer that the respondent as an organisation was probably on notice of the decision from February 2015. 59. But even if no one at the respondent had become actually aware of the decision by 15 July 2015, Mr Duncan Wood on that date had the letter purporting to withdraw the appeal, which was inconsistent with what he undoubtedly knew by 21 August, namely that the FTT had determined the matter back in February. Yet, the letter purporting to withdraw the appeal was not treated as evidence supporting a case of exceptional circumstances. 60. The second flaw in the decision making process is agreed: the second tranche of documents was overlooked, both in the first decision and on administrative review. Mr Thomann says that does not matter because there was no possible case on exceptional circumstances; the evidence supporting it was not produced at the time the application was made. So the question for me is whether Mr Thomann is correct and the decision must stand for that reason although the second tranche of documents was overlooked. 61. In my view, Mr Thomann’s submission is incorrect and the decision was unlawful and cannot stand. The categories of exceptional circumstances are not closed. In the guidance, examples are given of what could constitute such circumstances, but they are only examples and each case depends on its facts. In the present case, it was in principle a question of fact and degree whether a case of exceptional circumstances could be made out. 62. In my judgment, it is far from obvious that the substance of an exceptional circumstances argument would be doomed to fail. In this respect, I respectfully disagree with the learned judge of this tribunal who initially refused permission to proceed. He thought such a case was doomed to fail because of the fault of the applicant’s solicitors in failing to establish themselves on the record. 63. It is true that the solicitors appear to bear (though I emphasise that I have not heard their side of the story) responsibility for failing to send correspondence to the correct “General Correspondence” fax number, to which their attention was drawn. But they were not solely responsible for the breakdown in communications. The “IFT4” fax number denoting “permission to appeal” was, initially, a not unlikely candidate for the correct fax number since the applicant was applying for permission to appeal. 64. Some responsibility lies with the administration of the FTT for not responding even when sent correspondence later that was plainly inconsistent with the applicant being aware of the FTT’s decision; and for providing a bewildering mix of email and fax numbers which a person attempting to communicate has to navigate, not an easy task. Some responsibility lies with the respondent for failing to impart to the applicant the FTT’s decision which the respondent, but not the applicant, possessed. 65. In my judgment, the fault of the applicant’s solicitors was a factor to be considered in considering whether the case was one of exceptional circumstances, but was not a necessarily fatal blow to the applicant’s case that the circumstances were indeed exceptional. Furthermore, it was procedurally unfair of the respondent, as an organisation, not to alert the applicant to the FTT’s decision at any time before 21 August 2015, when Mr Duncan Wood certainly knew about it. 66. If the applicant could be fixed with constructive knowledge of the FTT’s decision without actual knowledge of it, then so could the respondent unless a double standard is to be applied. Furthermore, when the respondent became actually aware of it (whenever that was), and when (at some point on or before 21 August 2015) Mr Duncan Wood personally became aware of it, the respondent and he kept their counsel and did not alert the applicant to the decision and give her the opportunity to comment on the position. 67. Instead, the applicant was “ambushed” with the FTT’s decision in the letter of 21 August 2015. That was not consistent with ordinary standards of plain dealing and procedural fairness required under our administrative law. Mr Duncan Wood made his decision based on factual material of which the applicant was ignorant, and of which he either knew or should (based at least on the letter purporting to withdraw the appeal) have known she was ignorant. 68. It is true that, in a literal sense, the evidence supporting exceptional circumstances was not produced by the applicant at the same time as her application for leave to remain was made, as the guidance states must be done. The application for leave to remain was made a few days before the appointment with Mr Duncan Wood, at which the letter purporting to withdraw the appeal was produced. But the temporal requirement must, to avoid unfairness and absurdity, be read as subject to the caveat that it cannot rigidly be applied if ignorance of what constitutes the exceptional circumstances makes it impossible to comply with. 69. The guidance is indeed expressed in mandatory terms and was described as mandatory in the Binaura case; but it is, nonetheless, guidance not statute. It must be interpreted and applied in a manner that does not destroy the respondent’s ordinary obligation to observe procedural fairness. Unless the caveat just mentioned is read into the guidance, its operation may be oppressive and procedurally unfair. 70. In the present case, if the applicant had been capable of complying with the temporal requirement in the guidance, it is likely that the circumstances would not have been exceptional; she would have been aware of the FTT’s decision and would probably not have needed an extension of time beyond the 28 day period of grace. 71. I conclude that it was incumbent on the respondent to consider the question of exceptional circumstances and to exercise its discretion; and that it failed to do so. The Binaura case is not authority to the contrary. In that case, there was no ignorance of what made the circumstances arguably exceptional. 72. It is no answer to say that the applicant has another remedy because she can make a fresh application for leave to remain, on human rights grounds. The right to make such an application says nothing about the lawfulness of the manner in which her 2015 application was determined. 73. It is necessary, finally, to consider also the administrative review decision. Mr Thomann, sensibly, accepted that the applicant’s judicial review challenge, expressed as a challenge to the first decision made on 21 August 2015, also embraced, by implication, a challenge to the administrative review part of the process and the maintaining of the decision on review. 74. As Singh LJ pointed out when granting permission to proceed in this case, the remedy of administrative review is clearly designed, among other things, to create a swift and economic alternative remedy which may avoid the need for protracted and expensive judicial review proceedings. It is a remedy which would, other than in exceptional cases, need to be invoked as an alternative remedy before embarking on judicial review. 75. However, the efficacy of administrative review as an alternative remedy depends on the ability of reviewers to detect and reverse decisions flawed by error at the initial stage. The more narrowly the remedy is circumscribed, the greater the risk that it may, as in this case, fail to do so. Here, the reviewer was presented with a clear and cogent explanation of what had gone wrong but, instead of correcting the errors, compounded them. 76. For those reasons, the decision to refuse leave to remain, made on 21 August 2015 and maintained on administrative review on 17 September 2015, must be quashed. The application for leave to remain will be remitted to the respondent for reconsideration. I will deal with any consequential matters arising from this judgment on the basis of brief written submissions, which must be copied to the other party. I am grateful to the applicant Ms Prathipati, and Mr Thomann, for their helpful contributions.