R (on the application of Bhudia) v Secretary of State for the Home Department (para 284(iv) and (ix)) IJR  UKUT 25 (IAC)
This was a substantive Judicial Review hearing in the Upper Tribunal (UT) on 20/11/15 of a refusal of the Respondent Secretary of State’s refusal of the Applicant’s application for an extension of leave to remain in the UK under the spousal route.
The Applicant married her husband, a person present and settled in the UK, on 19/10/11 in India. She subsequently successfully applied for entry clearance under the spousal route spouse and was granted leave to enter the UK valid from 05/02/12 until 15/05/14.
On 30/05/14, the Applicant applied for an extension of leave to remain in same capacity under paragraph 284 of the Immigration Rules. On 02/07/14 however, this application was refused by the Respondent for three main reasons as follows:
“(a) The Applicant did not have leave to enter or remain at the time of applying as her leave had expired on 15 May 2014.
(b) ” You have failed to demonstrate that your marriage is subsisting by not providing six items of correspondence addressed to you and your partner at the same address as evidence that you have been living together during the past two years”.
(c) ” You have not provided evidence that you have achieved a qualification in English to LEVEL A1 of the Common European Framework of Reference for Language”
As she was deemed not have valid leave to remain at the date of the application, the Applicant was prevented from appealing to the First-tier Tribunal (Immigration and Asylum Chamber) and could only challenge the decision through Judicial Review.
Questions of Law
The questions of law that arose from each ground of refusal were as follows:
Conclusions of the Court
The UT noted the relevant wording in paragraphs 284 and 285 of the Immigration Rules as follows:
The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that ……….
(iv) The applicant has not remained in breach of the immigration laws, disregarding any period of overstaying for a period of 28 days or less …. “
An extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom may be granted for a period of two years in the first instance, provided the Secretary of State is satisfied that each of the requirements of paragraph 284 is met.
The court rejected the Respondent’s argument that irrespective of the date an extension application had been made an Applicant became an unlawful overstayer upon the expiry of 28 days beginning on the date immediately following the last day of residence in the UK.
It found that this interpretation would mean that an Applicant’s permitted period of overstaying 28 days maximum would only be disregarded on the unpredictable and uncertain event of the determination of his application. This would be an unjustifiable and aberrant outcome given that application were frequently delayed for many months and sometimes years.
The court concluded that an Applicant had a period of grace within which to make the extension of stay application, measured from the date immediately following the last day of lawful residence.
The UT noted that requirement to provide six items of correspondence of a certain type was not an instruction found in primary or secondary legislation nor a requirement contained anywhere in the Rules. This was a requirement to be found in the pro-forma FLR(M) Application Form.
The court considered the decision of the Supreme Court in R (Alvi) v Secretary of State for the Home Department  UKSC 33 which held that any requirement in immigration guidance or codes of practice which, if not satisfied by the migrant, would result in an application for leave to enter or remain in the United Kingdom being refused was tantamount to a “rule” within the meaning of Section 3(2) of the 1971 statute. Accordingly, if not laid before Parliament, it did not have the quality of law.
The UT found that nowhere in either primary of secondary legislation was this requirement stated. Rather, it was found in the FLR(M) application and as such it could not be a determinative factor when considering an application.
The court noted that it was common ground that in order to secure her Entry Clearance visa, the Applicant would have had to have provided evidence of the English Language qualification in the terms specified in the Immigration Rules.
It went on to note that the rules relating to application extensions in the Applicant’s category had no requirement that the English language qualification be of any particular validity period. As there had been no suggestion that the Applicant’s English language certificate had expired or had been invalidated the court could find no reasonable basis for the refusal on this ground.
In light of the above reasoning, the Applicant succeeded in her application for Judicial Review and an order was made quashing the Respondent’s decision dated 02/07/14.