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Upper Tribunal gives important guidance on discretion and exceptional circumstances

Written by Asad Ali Khan, 08 January 2019

R (Prathipati) v SSHD (Discretion – Exceptional Circumstances) [2018] UKUT 427 (IAC) (26 October 2018)

A self-representing applicant for judicial review who in the Upper Tribunal's view "represented herself with eloquence and courtesy", Mrs Prathipati triumphed against the government's junior counsel of choice in these complex proceedings which arose as a consequence of the refusal of her application for leave to remain as the unmarried partner of a Tier 2 migrant. Granting much needed relief, Kerr J quashed the refusal of 21 August 2015 – maintained on administrative review on 17 September 2015 – and bemoaned that he was the seventh judge to consider this claim for judicial review. He also noted that proceedings had been plagued by delay from the outset and the Court of Appeal eventually granted permission to apply for judicial review more than two years after permission was refused at an oral hearing. He rejected the submission that "exceptional circumstances" are restricted to the examples provided in the relevant guidance because it only sets out some examples. He found that each case depends on its specific facts and in Mrs Prathipati's case it was in principle a question of fact and degree whether any exceptional circumstances could be made out. Two points stood out. First of all, she did not know that she would be classified as an overstayer because the tribunal's decision did not reach her. And secondly important documents sent by her were not considered by the respondent. Mrs Prathipati entered the UK as a Tier 4 (General) student.

Her initial leave to remain, valid until October 2013, was successfully extended until May 2014. A further in-time extension was refused owing to availability of funds and a right of appeal was exercised. The First-tier Tribunal dismissed her appeal and an appeal against that decision was lodged in the Upper Tribunal. Thereafter, an extraordinary series of events occurred. Mrs Prathipati changed address and her then solicitors faxed the FTT (at the IAFT4 Permission to Appeal fax number) providing the details of the new address together with a signed authority to act. They also emailed customer services at the tribunal about the change of address but without any signed letter of authority to act. The response to the email provided another General Correspondence fax number. Later, her solicitors repeated their request, enclosing the signed written authority to act and sent it to the Permission to Appeal fax number but failed to fax their correspondence and the signed written authority to the General Correspondence fax number. Consequently, the change of address was not registered with the FTT. The result was that when the FTT refused the application for permission to appeal it sent the notice (advising on further appeal rights) and reasons to the old address.

Fresh application

The validly promulgated FTT decision was binding on Mrs Prathipati from 19 February 2015, but she discovered its existence months later because it was sent to the first address, the only valid address with the FTT recorded for her. She and her solicitors remained unaware of these events and when the deadline expired on 6 March 2015 for permission to appeal to the Upper Tribunal she became an overstayer since she had exhausted her appeal rights. A further email in June on her behalf to the tribunal's customer services yielded no response from the FTT. Mrs Prathipati then decided to switch categories and reapply as the unmarried partner of Tier 2 migrant. Since they thought an appeal was still pending, her solicitors faxed the FTT on 14 July 2015 on the Permission to Appeal fax number saying they had "instructions to withdraw her appeal with immediate effect". The FTT did not respond because the application for permission to appeal had already been refused.

On 12 July 2015, Mrs Prathipati applied for leave to remain as the unmarried partner of a Tier 2 migrant. She chose the premium service and together with her partner personally attended an appointment on 15 July 2015 and presented a tenancy agreement, bank statements, joint account bank statements, utility bills, photographs, letters, appeal letters and the solicitors' letter seeking to withdraw her appeal.

Whereas the caseworker requested further documents as proof of a genuine and subsisting relationship, he said nothing about her overstaying on the day. But he later relied on the FTT's decision when he refused her application on 21 August 2015. The refusal stated that her permission to appeal application to the Upper Tribunal was refused on 19 February 2015, and her appeal rights were exhausted on 6 March 2015. The refusal informed her that her application was made 130 days after expiry of her leave to remain and that was the first that Mrs Prathipati heard that she had become an overstayer.

The refusal failed to refer to the second tranche of documents requested by the caseworker at the premium appointment and it concentrated only on the first tranche of documents to conclude that insufficient evidence had been provided in relation to living together in a relationship akin to marriage for two years prior to the application. An administrative review of the refusal was sought and Mrs Prathipati set out an explanation why the decision-maker's application of the Immigration Rules was faulty. The caseworker had seen the letter requesting withdrawal of the pending appeal but had failed to consider the background and consider exercising discretion for the delay. He knew that she was unaware that she overstayed beyond the usual 28 days that are normally disregarded after the exhaustion of appeal rights. He had also disregarded the second tranche of documents, after requesting them, proving her relationship status and these documents had been returned without any consideration. The administrative review failed on the basis that Mrs Prathipati had failed to provide any evidence that her appeal was withdrawn and that she failed to show the necessary two-year relationship. The original refusal was upheld. The administrative reviewer failed to mention the second tranche of documents. Judicial review proceedings were commenced. After great difficulty Singh and Henderson LJJ finally granted permission in May 2018.

Binaura and paragraph 319C

Notably, Mrs Prathipati's fresh application was governed by paragraph 319C of the Immigration Rules which had been considered in R (Binaura) [2016] EWHC 1578 (Admin). Ms Binaura had leave to remain as the dependent spouse of a Tier 4 (General) student. When that leave expired, she made a further application for leave to remain, within 28 days of the expiry of her leave. Her application was refused without a right of appeal but she applied again 183 days after expiry of her leave to remain.

The application was refused and the administrative reviewer upheld the refusal. In ensuing judicial review proceedings, Ms Binaura argued that her application was refused solely because she was an overstayer by more than 28 days outside the deadline provided for at paragraph 319C(j) of the Immigration Rules which cross refers to the overstaying permitted by paragraph 39E. However, the court dismissed the claim by rejecting the submission that the rule was too rigid and should be applied flexibly and relaxed where fairness so required. The judge found that mandatory rules were not unfair or ultra vires, this finding coincided with high authority. He also held that the principle that discretion must not be fettered by rigidity in applying a policy does not apply where the rule in question contains no discretion. Therefore, Ms Binaura's only remedy was to make a fresh application outside the Immigration Rules. The submission that the decision-maker failed to adhere to the guidance on "exceptional circumstances" was also rejected. The point was unhelpful to Ms Binaura because the policy guidance said that she needed to submit evidence, with her application, of the exceptional circumstances that precluded her from applying within the 28-day deadline in paragraph 319C(j) . This was mandatory and under the guidance the decision-maker only had a duty to consider exceptional circumstances that were clarified with evidence provided "at the same time as her application for leave to remain is made."

Claim and counterclaim

It was clear that Mrs Prathipati's case rested on her lack of awareness of having become an overstayer. Had she known otherwise, she would have taken steps to address her situation and tried to rectify the problem. She submitted that the case made in her application for administrative review was ignored. She had tried to seek clarification from her former solicitors about the confusion about her precise address and had done everything possible to learn about the outcome of her appeal. It was unrealistic and unfair to say that she could have withdrawn her application for permission to appeal earlier because she had no reason to do so. The dismissal of her appeal would still allow her 28 days in which to make a fresh application. After having tried and failed to discover the true position, she decided not wait for the outcome of the FTT proceedings. Mrs Prathipati also stressed that the faxes sent to IAFT4 and Permission to Appeal triggered no response, not even a message that the fax number used was incorrect for the purpose.

The Home Office accepted that the second tranche of documents was overlooked and that this was a procedural flaw. Similarly it did not dispute Mrs Prathipati's factual case that she was unaware of the outcome of the FTT proceedings until she received the decision letter. But it disputed that the decision was not lawful because there was no real possibility of Mrs Prathipati being able to establish the necessary "exceptional circumstances".

The government sought to construct the argument that applying the mandatory guidance, she would need to produce the supporting evidence of any exceptional circumstances simultaneously when making the application for leave to remain. If no such evidence was provided exceptional circumstances contemplated by the guidance could not exist and no discretion was conferred to allow the application to succeed outside the 28-day deadline.

The confusion over the fax numbers was the solicitors' fault and any mix up was not classifiable as exceptional circumstances because it was a fault attributable to Mrs Prathipati. Moreover, Binaura left no doubt that paragraph 319C created bright line rules allowing no discretion except as set out for in the mandatory guidance, which required Mrs Prathipati to produce the evidence supporting special circumstances at the same time as making the application for leave to remain (something she had failed to do).

The Home Office denied that a lack of knowledge of the expiry of the deadline on Mrs Prathipati's part engendered the exercise of discretion without any evidence to back up a case of exceptional circumstances. It was said that the administrative review process is restricted to remedying case working errors. The reviewer was justified in upholding the decision because of overstaying beyond 28 days. The case was presented to the reviewer without evidence supporting special circumstances for exceeding the 28-day period.

The decision, though adverse, was correct despite the fact that the second tranche of documents regarding the ongoing two-year relationship had been overlooked. The defect was immaterial because there was no prospect of the 28-day threshold being disregarded. The upshot was that Mrs Prathipati was without a remedy. But that was her solicitors' fault, a fault attributable to her not to the Home Office. The rigidity of the regime meant that a fresh human rights based application was her only remedy. She had simply failed to submit any evidence amounting to exceptional circumstances.

Mr Justice Kerr

The Upper Tribunal opined that the two grounds of challenge – unfairness and failure to exercise discretion – were linked. No disagreement arose about the decision-maker's discretion as propounded in the policy guidance and the failure to exercise that discretion was essentially undisputed.

The straightforward point was that upon a correct self-direction as to the law the Upper Tribunal could not anticipate the outcome of Mrs Prathipati's application. Whereas the rules make no reference to any "discretion", the guidance does mention it and despite the hard-edged nature of paragraph 319C there is clear recognition that inflexibly worded rules must be, to an extent, treated as including an element of flexibility in their application.

Equally, while the rules are silent on the concept of "exceptional circumstances", the guidance is not and it provides a non-exhaustive list of examples of these and warrants that the evidence in support of exceptional circumstances needs to be provided at the time when the application is made. In the present context, when the couple went for their premium appointment potential proof of exceptional circumstances was found in the letter purporting to withdraw the application for permission to appeal. Prima facie the letter was inconsistent with Mrs Prathipati being aware of having overstayed beyond the 28-day deadline. The caseworker, one Mr Duncan Wood, failed to provide a witness statement detailing when/how he, or the Home Office at large, gained awareness of the result of the permission to appeal application against the FTT's decision. Indeed, no other government official bothered to explain either.

In the circumstances Kerr J concluded that it must have been sent to the Home Office just as it was to Mrs Prathipati's old address. However, even if the Home Office was unaware of the FTT decision, the caseworker knew of it by 21 August but he failed to treat the letter withdrawing the appeal as exceptional circumstances. The Home Office argued that the failure, on two separate occasions, to consider the second tranche of documents did not matter since the case on the basis of exceptional circumstances was unrealistic and the evidence to support it did not accompany Mrs Prathipati's application. Rejecting the submission, Kerr J held as follows:

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.

Kerr J said that some responsibility for the mix up rested with the solicitors for not using the General Correspondence fax number. Likewise the Home Office and the FTT administration both shared partial responsibility. The FTT for providing a large array of email and fax numbers which are hard to navigate and the Home Office for not alerting Mrs Prathipati to the FTT decision in a timely manner. He therefore held that:

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.

Constructive, rather than actual, knowledge was a two way street and another approach would be equivalent to a double standard. The caseworker had surely "ambushed" Mrs Prathipati with the FTT decision and this was at variance with the ordinary standards of plain dealing and procedural fairness required under administrative law. The caseworker's decision rested on a material fact of which she had been ignorant. He knew that she was ignorant. The letter purporting to withdraw the appeal demonstrated that. In a purely literal sense no exceptional circumstances were made out when the application was made (as the appointment with the caseworker was later) but to avoid unfairness and absurdity the temporal requirement had to "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." Although mandatory, the guidance was inevitably "guidance not statute" and need to be operated in a sensible way that did not "destroy the respondent's ordinary obligation to observe procedural fairness." Another view would make its operation oppressive and procedurally unfair. Normally if Mrs Prathipati had been able to comply with the deadline her circumstances would not be exceptional and she would not need to exceed the 28 days.

It was incumbent on the decision-maker to consider the important question of exceptional circumstances and to exercise his discretion but he failed to do so. Binaura did lead to the contrary as there was no ignorance of what made the circumstances arguably exceptional. To say, as the Home Office counsel unhelpfully suggested, that Mrs Prathipati had an alternative remedy because she could make a fresh application for leave to remain, on human rights grounds, was pointless because it said nothing about the lawfulness of the manner in which her 2015 application was determined.

By design, administrative review creates a swift and economic alternative remedy and it may prevent the need for protracted and expensive judicial review proceedings. Save in exceptional cases, administrative review needs to be exhausted as an alternative remedy before embarking on judicial review. But it was up to administrative reviewers to detect flaws at an early stage rather than just rubber-stamping refusals. In this case "the reviewer was presented with a clear and cogent explanation of what had gone wrong but, instead of correcting the errors, compounded them."

In the round, Kerr J held that:

(1) The Secretary of State has a discretion to allow an application for leave to remain to succeed even if made outside the 28 day period of grace referred to in paragraph 319C(j) of the Immigration Rules, provided that supporting evidence of exceptional circumstances is produced at the same time as making the application. 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 that requirement.

(2) The efficacy of administrative review as an alternative remedy to judicial review 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 fail to do so.

Comment

In this David and Goliath like encounter, Mrs Prathipati seems to have got the better of the Home Office counsel Mr Colin Thomann. She definitely stood her ground in a really solid way. Her determination as a litigant in person proves in a very clear and precise manner that muscle alone will not win the day for the Home Office. There is also a very clear message in this judgment that strong-arm tactics such as ambushing applicants are totally unacceptable. As Kerr J found, such a strategy is an unnecessarily hostile technique to approach decision-making that the law simply does not tolerate because of the ordinary standards of plain dealing and procedural fairness imposed on immigration decision-makers.

Interestingly, the government's proposed "alternative remedy" to make a fresh application for leave to remain (or enter, as the case may be) is a recurring point in many immigration judicial review cases. Another wasteful tactic presently being used in judicial review cases is for entry clearance managers and caseworkers to reply to pre-action letters months after the acknowledgement of service is filed. Oddly, instead of engaging with the particulars of the pending claim, such hopelessly out of time reply letters invite claimants to make fresh applications. However, as Kerr J said all this is totally pointless because it says absolutely nothing about the legality of the manner in which the original application was determined by the decision-maker. The 28-day deadline to make a fresh application was revised and is presently set at only 14 days under paragraph 39E of the Immigration Rules.

About the author: Asad Ali Khan is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple), Advocate High Courts Pakistan. In addition to immigration, he works as international counsel in an English law firm and acts as a court expert in UK family law proceedings involving removal of children from the jurisdiction to Pakistan. He also writes frequently for The Company Lawyer on corporate conduct and governance related issues.

This blog post originally appeared on Asad Ali Khan's United Kingdom Immigration Law Blog and is reproduced here with permission and thanks.

Any views expressed are those of the author and do not necessarily represent the views of EIN