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R (on the application of Ullah) v Secretary of State for the Home Department (2015)

The court has ruled that, in applying for student finance, the requirement of applicants to prove they are "settled" in the UK is incompatible with…

This case is a judicial review claim brought by a Bangladeshi citizen against the Secretary of State for the Home Department’s refusal to grant him leave to remain as a Tier 4 (General) Student.

Facts

The claimant had been granted leave to remain in the UK until January 2012. He applied for further leave to remain one day after the expiry of his existing leave.

In accordance with the Immigration Rules, Appendix C para 14, the Secretary of State stated that the claimant did not have an established presence studying in the UK as he did not apply for further leave to remain prior to the expiry of his current leave to remain.

Issues

The first issue was whether the Secretary of State had misconstrued the word “current” of the Immigration Rules, Appendix C para 14 when determining if the claimant had an established presence studying in the UK.

The second issue was whether, in applying the de minimis principle, the Secretary of State should have disregarded the fact that the claimant was one day late in submitting his application.

Decision

Regarding the first issue, it was held that extraneous documents will be considered where there is an ambiguity in the definition of “current”.  According to the Rules, there was no ambiguity. The word “current” was to be construed as its plain and normal meaning, that is to say, as “present” or “existing” leave and to be contrasted to past or expired leave. Consequently, there was no need in this case to examine extraneous documents and the word “current” was given its plain and normal meaning.

Concerning the second issue, it was held that the claimant could not rely on the de minimis principle, therefore, the claimant could not argue that the Secretary of State should have disregarded the fact that the application was one day out of time.

Accordingly the application for judicial review was refused.

Cases cited are:

AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773

Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568

R (on the application of Behary) v Secretary of State for the Home Department [2013] EWHC 3575 (Admin)