Case No. CO/985/2013 
Neutral Citation Number: [2015] EWHC 337 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 22 January 2015
 
B e f o r e: 

HER HONOUR JUDGE TAYLOR
Sitting as a Judge of the High Court 
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Between: 
THE QUEEN ON THE APPLICATION OF ULLAH
Claimant

v 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Zane Malik (instructed by MLC Solicitors) appeared on behalf of the Claimant 
Ms Shaheed Fatima (instructed by Treasury Solicitors) appeared on behalf of the Defendant 
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J U D G M E N T 
JUDGE TAYLOR:  

1.	The claimant in this judicial review claim brought with permission of HHJ Gilbart QC sitting as a Judge of the High Court, challenges the Secretary of State's decision of 21 May 2012, subsequently upheld on 18 December 2013, to refuse his application for leave to remain in the United Kingdom as a Tier 4 (General) Student.  
2.	The background facts in this case are not disputed.  The claimant is a citizen of Bangladesh and was born on 12 December 1985.  He was granted leave to enter the United Kingdom as a Tier 4 (General) Student on 16 November 2009 until 30 January 2012.  He made an application for further leave to remain as a Tier 4 (General) Student a day later, on 31 January 2012.  The Secretary of State refused his application under paragraph 14 of Appendix C to the Immigration Rules on the basis that it was made late, and therefore he was unable to demonstrate established presence under paragraph 14 as he had no current leave.  The judicial review claim was issued on 29 January 2013 and the acknowledgement of service was filed on 22 February 2013.
3.	HHJ Gilbart QC granted permission to apply for judicial review on the papers on 9 January 2014.  Initially there were three grounds relied upon, the first being that the Secretary of State has misconstrued paragraph 14 of appendix C to the Immigration Rules ("the construction argument").  The second ground was that the Secretary of State's decision was unlawful on the principle of de minimis non curat lex ("the de minimis argument"). The  third ground was that the Secretary of State had failed to exercise or consider exercising her residual discretion in the claimant's failure which was, it was argued, unlawful.  It was clear from HHJ Gilbart's order of 9 January that permission was given only in relation to Grounds 1 and 2 and today I have refused a further application from Mr Malik that Ground 3 should also be considered.  
4.	The points raised by the claimant in this case have recently been considered in very similar circumstances in R (Behary) v Secretary of State for the Home Department [2013] EWHC 3575 (Admin).  Mr Malik, who appears for the claimant in this case appeared for the claimant in Behary, when the arguments which he has made before the court today were all comprehensively rejected by the Deputy Judge.  Permission to appeal was refused by Davis LJ on 28 July 2014 but on 16 December 2014 permission to appeal was granted by Bean LJ on, relevant to this case, the construction argument only, in the light of two further decisions, Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773 and Pokhriyal v the Secretary of State for the Home Department [2013] EWCA Civ 1568, which was handed down after the promulgation of Behary.
5.	In granting permission it is of significance that at paragraph 4 of the reasons Bean LJ said the following:
"Mr Malik has, however, persuaded me that ground 2 is arguable.  His case is that, while on the construction of paragraph 14 of Appendix C to the Immigration Rules on its own the word 'current' obviously means 'current' (ie unexpired) leave to remain, the term may be open to a different construction in the light of the Secretary of State's own guidance documented cited by Mr Malik at paragraph 27 of his skeleton argument.  This suggests that an applicant may have an established presence in the United Kingdom if she has had recent permission to stay as a Tier 4 (General) Student."
He then goes on to deal with the decisions of Adedoyin and Pokhriyal, which he records as having been handed down after the first instance judgment in Behary.
6.	The relevant parts of the provisions of the Rules are set out in the judgment in Behary at paragraphs 75 to 79.  Paragraph 245ZX of the Immigration Rules provides as follows:
"To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below.  If the applicant meets these requirements, leave to remain will be granted.  If the applicant does not meet these requirements, the applicant will be refused.
Requirements:
...
 (d) the applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C."  
Appendix provides at paragraph 10
"A Tier 4 (General) Student must score 10 points for funds.  Paragraph 11 then goes on to state when those 10 points will be awarded.  So far as relevant it provides that:
If studying in outer London and elsewhere in the United Kingdom 
 (i) where the applicant does not have an established presence studying in the United Kingdom, the applicant must have funds amounting to the full course fees for the first academic year of the course, or for the entire course if it is less than a year long, plus £800 for each month of the course up to the maximum of nine months.
 (ii) where the applicant has an established presence studying in the United Kingdom, the applicant must have funds amounting to the course fees required either for the remaining academic year if the applicant is applying part‑way through, or for the next academic year if the applicant will continue or commence a new course at the start of the next academic year, or for the entire course if it is less than a year long, plus £800 for each month of the course up to a maximum of two months.
Those provisions distinguish between an applicant who 'has an established presence studying in the United Kingdom' and one who does not.  The funds required for the former are less than the latter."
7.	The central point in this case is the definition in paragraph 14 of –“current” in Appendix C as follows:
8.	 "An applicant will have an established presence studying in the UK if the applicant has current entry clearance, leave to enter or leave to remain as a Tier 4 Migrant, Student or as a Postgraduate doctor or dentist at the date of application.
(i) has finished a single course that was at least six months long within the applicant's last period of entry clearance, leave to enter or leave to remain or 
(ii) is applying for continued study on a single course where the applicant has completed at least six months of that course."
9.	In refusing permission in this case the decision letter from the Secretary of State stated:
10.	 "Therefore, to qualify as having an 'established presence studying in the United Kingdom' and the reduced maintenance (funds) levels, a student must make an application for further leave to remain before their previous entry clearance, leave to enter or leave to remain expires.  That is, you must make an 'in‑time' application.  
You were last given permission to stay as a student until 30 January 2012.  Therefore, at the time of your application on 31 January 2012 you no longer had any valid leave to remain in the United Kingdom and do not have an established presence studying in the United Kingdom."
She then went on to deal with the amount shown in the bank statements:
"As your bank statements state that you are in possession of no more than £2,818.12 at any point during that period, you have not demonstrated that you have the level of funds required to be granted as a Tier 4 (General) Student Migrant.  It has therefore been decided that you have not met the requirements of the Immigration Rules and no points have been awarded for maintenance."
11.	Mr Malik's argument on this point is summarised by the Learned Judge in Behary at paragraphs 106 to 108 and rejected.  The same arguments were made today.  Mr Malik's submission in this case is that the Learned Judge's approach to the proper use of the guidance note in the construction of paragraph 14 was wrong in the light of the decisions in Adedoyin and Pokhriyal.  In Adedoyin the Court of Appeal was considering the construction of rule 322(1A) of the Immigration Rules and the meaning of false representation.  At paragraph 65 the issue was succinctly summarised as whether the word "false" had the meaning of "incorrect" or the meaning of "dishonest". 
12.	In paragraph 66 Rix LJ in giving the judgment to the court said:
"It seems to me therefore that there is an open choice as to the meaning to be given to 'false' in the relevant rules."
At paragraph 70, which was relied on by Mr Malik, he said this: 
"...it seems to me that, in a situation where a word such as here 'false', has two distinct, and distinctively important meanings, there is a genuine ambiguity which makes it legitimate, in construing Rules which are expressions of the executive's policy, to consider what the executive has said, publicly, about its rules.  Clearly, what a minister says in Parliament, expressed as an assurance, and especially on the occasion of a debate arising out of the tabling of amended rules, is of particular, and may be of decisive, importance (just as the DP 5/96 policy was effectively changed by an announcement in Parliament, see NF (Ghana) above).  In such a situation of genuine ambiguity, moreover, it seems to me that, perhaps exceptionally, it is even possible to get some assistance from the executive's formally published guidance, such as RFL04 or the relevant IDI.  In saying that I do not that I that I am departing from the observations of Lord Brown in Mahad, cited above, about the function and status or probable general unhelpfulness of IDIs."
Mr Malik relies upon that passage and the additional remarks at paragraph 86 by Longmore LJ, where he said:
"It is unfortunate that this court has now construed rule 322(1A) to mean the opposite of what, at least on one view, it appears, on its face, to say.  But one must remember that, as pointed out in MO (Nigeria) [2009] 1WLR 1230 the Immigration Rules are statements of policy not the law of the land.  In these circumstances formal statements in Parliament or in correspondence with interested parties cannot be gainsaid by the Secretary of State when it comes to interpreting the Rules."
13.	In Pokhriyal, in considering the proper approach to construction, Jackson LJ referred to paragraphs 39 to 41 of the judgment of the Supreme Court in Mahad v Entry Clearance Officer [2009] UK Supreme Court at 16 and at paragraph 42 to 43 to Adedoyin and the passage cited above.  In reference to Mahad, he said at paragraph 40:
"Lord Brown gave the leading judgment, with which all other members of the court agreed.  At paragraph 10, after referring to earlier authorities, Lord Brown stated that the Immigration Rules should not be construed with the strictness appropriate for a statute or a statutory instrument.  Instead they should be construed 'sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy'.
41. Later in the same paragraph Lord Brown said that the court could not take IDIs into account as an aid to the construction of the rules.  I of course accept that proposition.  There is, however, a qualification that should be noted.
42.  If there is ambiguity in Immigration Rules and the Secretary of State publicly declares that he/she will adopt the more lenient interpretation, then tribunals and courts may hold the Secretary of State to that assurance.  That is exemplified by the Court of Appeal's decision in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564.  The relevant rule in that case provided that leave to enter would be refused where the applicant had made 'false' representations.  The relevant minister said in Parliament that 'false' in this context meant not merely incorrect, but deliberately false.  There were other public statements by Government officials to similar effect.  The Court of Appeal construed the rule in accordance with those assurances.  Rix LJ gave the leading judgment, with which Longmore and Jacob LJJ agreed.  At paragraph 70 Rix LJ said that in a situation of genuine ambiguity, it was legitimate to derive assistance from the executive's formally published guidance, including IDIs.
43.  I respectfully agree with paragraph 70 of Rix J's judgment in Adedoyin.  I would, however, add this comment.  I do not think it is possible for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government's favour.  The Secretary of State holds all the cards.  The Secretary of State drafts the Immigration Rules; the Secretary of State issues IDIs and guidance statements; the Secretary of State authorises the public statements made by his/her officials.  The Secretary of State cannot toughen up the Rules otherwise than by making formal amendments and laying them before Parliament.  That follows from the Supreme Court's reasoning in R (Alvi) v Secretary of State for the Home Department [2012] EKSC 33; [2012] 1 WLR 2208."
14.	Mr Malik submits that the court should reject the reasoning of the Deputy Judge in Behary as he erred law in declining to construe paragraph 14 in the light of the Secretary of State's guidance, which would have led to a more favourable construction for the claimant.  I reject this submission for the following reasons: 
15.	Firstly, in my judgment, the cases of Adedoyin and Pokhriyal were not inconsistent with the general principles set out in paragraphs 10 and 11 of the judgment of Lord Brown in Mahad, to which the Deputy Judge referred.  Both Rix LJ in Adedoyin and Jackson LJ in Pokhriyal expressly stated that there was no such inconsistency.  What, in my judgment, is clear from both Adedoyin and Pokhriyal is that it is only where there is a genuine ambiguity in the Rules, that other interpretative material can legitimately be used as an aid to construction.  As Ms Fatima on behalf of the Defednant put it in argument, that is the gateway.
16.	On the face of the Rules, in my judgment, there is no ambiguity when the natural and ordinary approach is taken to the word "current" in accordance with Mahad.  As Deputy Judge Grubb said in Behary at paragraph 112:
"In my judgment the 'natural and ordinary' meaning of the word 'current' in the phrase 'current entry clearance, leave to enter or remain or leave to remain' is plain.  It means 'existing' or 'present' entry clearance or leave.  It is to be contrasted with past leave or leave previously granted to an individual but which has expired or come to an end.  The provision also requires that the individual 'has' that leave suggesting very strongly that it is looking to the leave that the individual presently possesses and enjoys.  It does not naturally allow for leave that an individual 'had' but no longer enjoys.  The sense of the rule is clear and unambiguously expressed."
If that gateway is not passed, there is no basis for reference to the IDI as an aid to construction.  
17.	Secondly, the material in Adedoyin was of a different nature to the IDI.  The passage at paragraph 70 of the judgment of Rix LJ indicates a hierarchy of materials which can be used in construction. The use of IDIs is treated as in a different category to an express public statement and assurance given in Parliament as to the meaning of the word.  
18.	When considering such materials Rix LJ said:
"...perhaps exceptionally, it is even possible to get some assistance from the executive's formally published guidance."
The principal reliance in Adedoyin was on a letter sent by the Minister of State of the Home Department to the Immigration Law Practitioners Association and was specific to the enquiry that was made.
19.	Thirdly, the Deputy Judge did in fact consider the effect of taking into account the contents of the IDI at paragraph 113, when he dealt with his second point.  He said:
"Secondly, Mr Malik's submission entails 'current' leave being synonymous with 'most recent' leave and thereby including 'past' (and not existing) leave.  That construction is impossible to reconcile with the plain and ordinary meaning of the word 'current' and the requirement that the individual 'has' that leave rather than he or she 'had' (in the past) the relevant leave.  The IDI simply cannot defeat that meaning."
20.	Fourthly, the judge also considered and rejected the point argued on the underlying policy arguments at paragraphs at 114 to 115.  The claimant's application on that point for permission to appeal has been rejected at both stages of application and that aspect was not pursued by Mr Malik actively in this case.
21.	Further, as Ms Fatima submits, a  significant concession was made by Mr Malik and recorded by Judge Grubb at paragraph 108 of his judgment, namely that he accepted that there was no difference between a person's current leave and his or her most recent leave.  They are synonymous.  Mr Malik did not seek to take a different course in this court.  That concession she submits, taken with Mr Malik’s argument recorded in the permission to appeal in Behary at paragraph 4, (that on a construction of paragraph 14 of Appendix C to the Immigration Rules on its own the word 'current' obviously means 'current' (ie unexpired) leave to remain), makes clear that there is no ambiguity at all, and none which can be assisted by consideration of the IDI.  
22.	I have therefore considered the case of Behary in the light of both Adedoyin and Pokhriyal, as applied to this case.  I entirely accept the reasoning on the construction point in Behary,  with the following addition. Having regard to Mahad, Adedoyin and Pokhriyal,  in my judgment the word "current" has a clear and natural meaning in the Rules, in which there is no ambiguity which opens a gateway to the need for legitimate use of further materials to aid construction. To that extent this case differs from Adedoyin and Pokhriyal where some ambiguity existed.  In my judgment those cases  make no difference to the decision on similar points of construction in Behary, as it applies to this case.
23.	Turning, then, to Ground 2, the de minimis point.  As in Behary the application was made one day after expiry of leave.  Mr Malik accepts there has been no permission granted to appeal this point in Behary.  He relies, as he did in that case, on the cases of MD (Jamaica) and Miah.  It is perhaps right to acknowledge that he did not pursue this argument with vigour as a result.  
24.	Ms Fatima makes one criticism of the judgment in Behary where the Judge said at paragraph 94: 
"First, I accept that the de minimis principle can be applied in the application of both statutory provisions and the Immigration Rules.  That is, of course, recognised both by Dyson LJ in MD at [27] and by Stanley Burnton LJ in Miah [12]." 
25.	The point that Ms Fatima makes is that that does not take into account the judgment of the Supreme Court in Patel [2013] UKSC,albeit in the context of human rights rather than the Immigration Rules.  In the express reference to Miah at paragraph 53 onwards, Lord Carnwath rejected the return to a formalised “near miss” or sliding scale principle for which Mr Malik in that case was arguing.  Whilst there is some distinction between “near miss” and de minimis, as Davis LJ said in the permission refusal in Behary, in this case it makes no real difference.
26.	I accept also the reasoning adopted of Judge Grubb in relation to the Behary case in relation to the de minimis argument, save for the point that Ms Fatima makes in relation to paragraph 94.  
27.	On the basis of the submissions in this very similar case I see no reason to reject the reasoning given by Judge Grubb in dealing with the Behary case and, indeed, having considered this matter, I entirely agree with the approach that he took to both points. 
28.	For these reasons this application is dismissed.