Law and Policy Framework:
26. At the relevant time and so far as material here, paragraph 319C of the Immigration Rules provided that for a person to qualify for entry clearance or leave to remain as the unmarried partner of a “Relevant Points Based System Migrant”: “… an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance or leave to remain will be granted. If the applicant does not …. the application will be refused… . …. (c) An applicant who is the unmarried …. partner of a Relevant Points Based System Migrant must also meet the following requirements: … (iii) the applicant and the Relevant Points Based System Migrant must have been living together in a relationship similar to marriage … for a period of at least 2 years. … (j) The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days will be disregarded.” 27. I was shown relevant policy guidance dating from November 2015 which, I was assured, was not materially different in July to September 2015 when the applicant’s case was considered. On the topic of applications made “after expiry of last period of leave”, paragraph 37 stated, so far as material: “Applications for leave to remain under the Points Based System 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. The 28 day period of overstaying is calculated from the latest of: • …. • the end of any extension of leave under sections 3C or 3D of the Immigration Act 1971, or • …. . If there are exceptional circumstances which prevented you from applying in time you must submit evidence of the exceptional circumstances with your application. The threshold for what constitutes ‘exceptional circumstances’ is high and will depend on the individual circumstances of the case, but for example may include delays resulting from unexpected or unforeseeable circumstances such as the following: • serious illness …. • travel or postal delays … • inability to provide necessary documents. This would only apply to exceptional or unavoidable circumstances beyond your control, such as the Home Office being at fault in the loss of, or delay in returning, travel documents, or delay in obtaining replacement documents following a loss as a result of theft, fire or flood (where supported by evidence of the date of loss and the date replacement documents were sought).” 28. The wording of the provision has since changed so as to substitute a requirement to show “good reasons” rather than “exceptional circumstances”, but at the relevant times in 2015 the wording was as set out above. 29. Paragraph 319C of the Immigration Rules was considered by Nicholas Padfield QC, sitting as a deputy judge of the High Court, in R (Binaura) v. Secretary of State for the Home Department
[2016] EWHC 1578 (Admin). The applicant had leave to remain as the dependent spouse of a Tier 4 (General) Student. When her leave to remain expired, she made a further application for leave to remain, within 28 days of her leave expiring. When that was refused (without a right of appeal), she applied again, 183 days after expiry of her leave to remain. 30. The Secretary of State refused that application on the ground that she had overstayed by more than 28 days when she made the application. On administrative review, the secretary of State’s decision was maintained. Having obtained permission to bring a judicial review, Ms Binaura argued that her application had been refused “solely because she was an overstayer” by more than 28 days, i.e. outside the 28 day period provided for at paragraph 319C(j) of the Immigration Rules: see the judgment at [13]. 31. The Secretary of State, it was argued, should have exercised a “discretion” and had, among other failings, omitted to follow her “published policy” ( ibid. at [16]). The deputy judge held that the Secretary of State had no discretion. The rule was prescriptive; while an overstay of 28 days or less would be disregarded, an overstay of more than 28 days was necessarily fatal to an application. 32. The judge rejected an argument that the rule was too rigid and should be applied flexibly and relaxed where fairness so required. Mandatory rules were consistent with high authority and not unfair or ultra vires . The principle that discretion must not be fettered by rigidity in applying a policy does not apply where the rule being applied contains no discretion. The only remedy was to make a fresh application outside the Immigration Rules. 33. The judge also dismissed an argument that the Secretary of State had failed to follow her established policy by failing to consider the guidance on “exceptional circumstances”. The argument did not assist Ms Binaura because the policy guidance provided that an applicant must submit evidence, with her application, of the exceptional circumstances precluding her from applying within the 28 day period provided for in paragraph 319C(j). 34. Ms Binaura had not done so: see the judgment at [32]-[36]. This was a “mandatory requirement” ( ibid. at [33]). The Secretary of State was only under a duty to consider the question of exceptional circumstances if the applicant had fulfilled the requirement to supply evidence of them at the point of submitting the application. The guidance provided that the evidence must be supplied “at the same time as her application for leave to remain is made” [36]. 35. I also need to refer to the remedy of administrative review. In 2014 and 2015, measures were introduced to reduce substantially the scope of immigration related decisions against which there was a right of appeal. In many cases where the right of appeal was stopped, a right to seek an “administrative review” of a decision was substituted. The remedy of administrative review was described at the time as a means of correcting simple errors. 36. It is common ground that in this case, the decision challenged by the applicant was an “eligible decision” susceptible to administrative review and, indeed, the applicant invoked that remedy. When her case was considered, the applicable provisions were, then as now, set out in an Appendix “AR” (administrative review) to the Immigration Rules. Paragraph AR2.1 provided that administrative review “is the review of an elegible decision to decide whether the decision is wrong due to a case working error ”. 37. A case working error is “an error in decision making listed in paragraph AR3.4…”. There is no paragraph AR3.4, but the parties agreed that the decision making covered by administrative review covered the applicant’s case. A reviewer could not consider any evidence that was not before the original decision maker “except where evidence that was not before the original decision maker is submitted to demonstrate that a case working error as defined in paragraph AR2.11(a), or (b) has been made” (AR2.4). 38. So you have to look at AR2.11(a) and (b) to see in what circumstances fresh evidence can be looked at by the reviewer. He or she can do so where the “case working error” arises because the original decision maker’s decision on various specific bases involving false representations (not relevant to this case) “was incorrect” ((a)); or, pertinently for this case, “where the original decision maker’s decision to refuse an application on the basis that the date of application was beyond any time limit in these Rules was incorrect” ((b)). 39. The relevant provision here is (b), because of the limit of 28 days for disregard of overstaying. I was also shown Home Office guidance dating from April 2015, on the subject of administrative review. This replicates the effect of the rules on administrative review, which I have just quoted. Examples are then given in the guidance of particular types of case working errors that might be encountered. None of them fits the facts of the present case.