By No5 Chambers Immigration Team 
Way back when what was then the Asylum and Immigration Tribunal conducted its first reconsideration of a Points Based System appeal, in NA and Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025 the Tribunal was quick to note both that the new system was intended to be “discretion-free” and that it had largely achieved this aim. 
The absence of any such discretion is thrown into relief in cases where an application is refused or rejected as invalid due to the applicant’s failure to meet the strict requirements of the Agency’s “policy guidance.” The rejection cases frequently result in challenges by way of judicial review since the person whose application is rejected has no right of appeal to the First Tier Tribunal. 
The facts considered by Justice Belinda Bucknall in R (on the application of Mashud Kobir) v Secretary of State for the Home Department [2011] EWHC 2515 (Admin) are not uncommon.
The Claimant had had leave to remain in the UK as a student since 2002. He lived here with his wife, who had lawfully joined him in 2006, and with their two children, both of whom were born in the UK. Before his and his family’s leave to remain ran out at the end of May 2009 he applied to the UKBA for further leave to remain, but mistakenly did not include enough money to cover all the fees. 
In relation to the Claimant’s mistake the judge noted that the Tier 4 of the Points Based System Policy Guidance with which the Claimant himself had to comply in respect of his own application was 50 pages long and the Guidance relevant to his wife and children’s applications was 21 pages long.
Each application required a fee to be paid. The Claimant paid the necessary amounts for himself (£357) and for his wife (£50) but did not include the £50 payable for each of his children’s applications. The Claimant had correctly calculated both how much money he had to show that he had to meet the Immigration Rules’ requirements for a family like his, and had provided the necessary bank statements to show that he had had this money for a period of 28 days which ended not more than one month before the date of his application.
The UKBA however returned his application stating that it was invalid due to the Claimant’s error in respect of the fees for his children’s applications.
The application was of course immediately resubmitted to the UKBA, accompanied by the full fees, but by now (July 2009) the Claimant’s leave to remain had expired. Unfortunately he did not supply further bank statements covering a period of 28 days which ended not more than one month before the new date of his application, as the Rules required. Because he had no leave to remain his college could not permit the Claimant to study with them, and so he lost the fees he had paid for his course.
A year passed before the UKBA determined the Claimant’s second application. During this time the Agency was, unbeknown to the Claimant, investigating the college at which he wished to study. The investigation began in July of 2009 and in September of 2009 the UKBA suspended the college’s Tier 4 Sponsor licence, although more than 8 months later in June of 2010 it reinstated the licence. 
The timescale is significant because as the judge made clear in her judgment, the Tier 4 Policy Guidance states that when the UKBA has suspended a college’s licence it will not consider any outstanding applications for leave to remain (made on the basis of sponsorship by that college) until it has reinstated that licence. 
Therefore the suspension of the Claimant’s college’s licence would explain the UKBA’s failure to determine the Claimant’s application from September of 2009. However the failure to determine the application at any point from July to September remained unexplained. 
Finally the UKBA refused the Claimant and his family’s applications in July of 2010, because the bank statements he had given to prove the maintenance requirements of the relevant Immigration Rule did not cover a period of 28 days ending not more than one month before the date his application had been submitted, as was required. 
The UKBA pointed out that the Claimant and his family had had no leave to remain in the UK at the time of their application and so they had no right of appeal against the decision. The UKBA said that they should leave the UK without delay. The Claimant was however determined to complete his studies in the UK and therefore he made a third application in September of 2010, having enrolled at a different college. 
But in November of 2010 the UKBA refused this application, pointing out that the Immigration Rule covering applications of this kind required that the applicant was not going to be studying on a course which commenced more than one month after his or her leave to remain expired. For the Claimant, this would have meant that his course had to commence no later than the end of June 2009.
The Claimant sought judicial review. The first consequence of this was that the UKBA withdrew its decision of November 2010, and then re-refused it on the basis that the Claimant had not shown that he had sufficient funds to support his family because he did not have an “established presence” in the UK, and therefore had not provided evidence of sufficient funds. (Those who do not have an established presence – having already studied in the UK for 6 months – have to show that they have far more money than those who do have an established presence).
In his amended judicial review application the Claimant reasonably pointed out that if the UKBA had decided his second application promptly he would in all probability have been able to show that he had been studying in the UK for more than 6 months at the time of his third application. 
From this sad but far from unusual story it is clear that it is not an easy thing at all to get an application under the points based system right. There is little controversy about this – last year in AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 Lord Justice Longmore said:
“I am left perplexed and concerned how any individual whom the Rules affect (especially perhaps a student, like Mr A, who is seeking a variation of his leave to remain in the United Kingdom) can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance, funded by the taxpayer, that justice can be done.” 
Judge Bucknall noted that all of the UKBA’s decisions had been lawful, but quashed the decision on the basis that the agency had failed properly to exercise its discretion. She said that the Claimant’s case was different from others, like R on the application of Walker v. Secretary of State for the Home Department [2010] EWCH 2473 (in which the Claimant had not submitted a photograph with her application, which had therefore been rejected) because, most importantly, there had been no explanation for the UKBA’s not having considered the Claimant’s application between when it was submitted (in July of 2009) and when the agency suspended the Claimant’s college’s Tier 4 licence (in September of 2009). If the agency had considered the application at this time they would have refused it because of the bank statements but the Claimant would have been able to correct this promptly.
Secondly, the Claimant’s immigration history was impeccable, and he had simply made an understandable mistake.
The Judge’s recognition that the UKBA continues to have a discretion is important. The perceived absence of discretion within the points based system dates from its implementation and has been underlined by decisions such as that of the Asylum and Immigration Tribunal in NA and Others. Indeed this characteristic of the regime has become one of its trademark features. 
So the judgment in Kobir is a welcome reminder that the Secretary of State always retains a discretion. The Judge recalled Mr Justice Sullivan’s (now Lord Justice Sullivan) remarks in R. on the application of Teisha Forrester v. Secretary of State for the Home Department [2008] EWHC 2307, in which he said that the Secretary of State’s discretion must be exercised with a little common sense and humanity.
As well as all this it may actually be the case that the Secretary of State’s decision in this case was unlawful as well due to its not being taken in accordance with UKBA policy. The existence of an undisclosed policy of “evidential flexibility” operated by the UKBA since August of 2009 has recently come to light.
The policy was referred to in a report prepared by the National Audit Office entitled “Immigration – the Points Based System – Work Routes”, which came out in March of 2011. It described the policy as follows:
“In 2009-10, the Agency rejected some 8 per cent (8,500) of in-country applications 2.13 and refused some 12 per cent (23,800) of all applications. From our review of cases, the commonest reason for refusal, affecting 22 of the 43 refusals in our sample, was the applicant’s failure to provide sufficient information or supporting evidence. The volume of errors and omissions by applicants led the Agency, in August 2009, to introduce a policy of ‘evidential flexibility’ which allows caseworkers to go back to applicants for missing documentation or to correct minor errors. The Agency has not, however, evaluated whether the policy is effective or being applied fairly. In response to the Chief Inspector’s findings of a lack of consistency in the implementation of evidential flexibility overseas, the Agency formalised its guidance to overseas posts in February 2011. We also found inconsistency of approach in Sheffield however. In addition, the Agency allows only three working days for applicants to submit extra documents. Caseworkers told us that documentation is frequently received after the application has been refused but the Agency was unable to quantify this.” 
Needless to say Judge Bucknall was not referred to this policy. If the UKBA had “gone back” to the Claimant in this case and let him know that he had left out the fees for his children none of the ensuing litigation would have happened at all. Just a telephone call would have sufficed. 
No5 Chambers Immigration Team