Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 147

 

P865/15

OPINION OF LADY WISE

In the Petition of

LA (AP)

Petitioner

against

The Secretary of State for the Home Department

Respondent

Petitioner:  Bovey QC and Bryce; Drummond Miller LLP

Respondent:  Komorowski; Office of the Advocate General

 

14 October 2016

Introduction
[1]        The petitioner is a citizen of Iraq born on 23 July 1974.  He arrived in this country in January 2001 and claimed asylum.  As detailed in chronology below, his application was refused and he ultimately became appeal rights exhausted in November 2003.  Around that time he married at UK citizen.  His subsequent applications have all been on the basis of his marriage to his British wife and their family life.  They continue to live together and have two children.  The principal decision challenged in this petition is that of 4 March 2012.  On that date the respondent returned an application made on the petitioner’s behalf by his solicitors on 10 May 2011 for discretionary leave to remain (“DLR”) on the basis that the incorrect form had been used and no fee had been paid.  While there has been ongoing communication and certain other processes have been followed since then, it is that decision that has led to the petitioner requiring to follow a much longer route to indefinite leave to remain as a result of a change to the respondent’s policy in July 2012.  As the decision challenged was taken well over four years ago, it will become necessary to consider various events that have taken place since then.

[2]        This is an unusual immigration case in respect that there is no suggestion on the part of the respondent that the petitioner should be removed from the United Kingdom.  He continues to live here, peacefully, with his wife and children.  He is in employment.  The argument is about whether he has been deprived, wrongly, of a six year route to settlement in the UK through the unlawful actings of the respondent.  In order to see how this has come about I will summarise the chronology put before me at the hearing and then outline the change in the respondent’s policy on settlement using the Discretionary Leave to Remain  (“DLR”)  route. 

 

Chronology

3January2001	Petitioner arrived at Dover and applied for Asylum.
20March2001	Petitioner’s application for asylum refused.
3October2003	Petitioner married UK citizen.
14November 2003	Following an unsuccessful appeal the petitioner became Appeal Rights Exhausted.
22March2004	Petitioner applied for extension of stay as a spouse of a UK citizen.
30May2008	Discretionary leave to remain for a three year period granted.
10May 2011	Petitioner applied for extension of stay on Form HPDL.
29May2011	The three year period of discretionary leave to remain expired.
4March2012	The respondent advises the petitioner’s agents that the HPDL was the wrong form to use to apply for extension of stay and returns it.
6July2012	Petitioner’s agents lodge the correct form (FLR (O)) for a further three year period of discretionary leave to remain, together with the necessary fee but with the caveat that they still considered Form HPDL to be the correct one.
9July2012	The respondent’s new rules on Article8 and discretionary leave applications are introduced with transitional provisions.
July – December 2012	Correspondence between the petitioner’s agents and the respondent on the issue of which form was the correct one in the petitioner’s circumstances.
7December2012	The respondent agrees to consider the petitioner’s claim exceptionally under Article 8 ECHR in light of lack of availability of the LegacyProgramme for him.
11July 2013	The respondent grants the petitioner leave to remain until 9January 2016.
26August2013	The respondent confirms to the petitioner’s agents that the petitioner will not benefit from the transitional provision of the rules introduced in July2012 due to no valid application having been received prior to 29May2011 when discretionary leave to remain expired.
30September 2013	Respondent advises the petitioner’s agents that the application of 6July2012 for the petitioner was now voided given that the 7December2012 application for leave to remain had been granted.
8October2013	The petitioner’s fee for the 6July2012 form refunded by the respondent.
2014	Further correspondence in the context of which the petitioner’s agent threatened judicial review proceedings on more than one occasion.
12August2015	Judicial review proceedings raised.

 

Changes in the respondent’s rules and guidance on discretionary leave
[3]        The respondent introduced a system of humanitarian protection and discretionary leave in April 2003 to replace the previous exceptional leave.  The criteria for granting discretionary leave and appropriate guidance on applications prior to July 2012 are contained in the document lodged at 6/28.  Those  provide, amongst other things, for different categories of discretionary leave.  In Article 8 cases, the type relevant to the petitioner, the usual period of discretionary leave granted was three years.  All those granted discretionary leave, whether under Article 8 or otherwise, required to complete at least six years in total before being eligible to apply for indefinite leave to remain.  It was accepted that where a person  held discretionary leave for an appropriate period and continued to qualify therefor, they should be granted indefinite leave to remain/settlement after expiry of that 6 year period. 

[4]        From 9 July 2012 the respondent’s internal instruction changed.  A new policy on discretionary leave was implemented.  The details are contained in a document 6/29 of process.  Its provisions provide, amongst other things, that in relation to all applications made on or after 9 July 2012 a person will normally become eligible for consideration for settlement only after completing 120 continuous months (10 years) of discretionary leave.  That continuous period will however be interrupted if no valid application for further leave has been made in accordance with section 3C of the Immigration Act 1971.

[5]        New policy provisions were implemented from 18 August 2015 and are produced at 6/35 of process but these are not pertinent to the current case.

[6]        The significance of the change in the rules from 9 July 2012 was that, if the petitioner’s application of May 2011 was invalid he would not be regarded as someone who had applied for an extension of discretionary leave before the first three year period expired.  Accordingly the new rule that 10 years of discretionary leave, uninterrupted, would be required before he could have indefinite leave to remain would apply to him. 

 

Submissions for petitioner
[7]        Senior counsel for the petitioner Mr Bovey submitted that the petitioner reasonably considered the form HPDL, which he had submitted in May 2001, to be the appropriate one in his circumstances.  It was accepted that Rule 34 of the Immigration Rules provided that where an application was specified by being posted on the website of the United Kingdom Border Agency of the Home Office (UKBA) an application or claim must be made using the specified form and any related fee must be paid in accordance with the methods specified in the application form, separate payment form and/or related guidance notes.  The specified forms on the website do not form part of the rules themselves but have the same authority and effect once posted on the website.  A copy of the application form submitted on behalf of the petitioner on 10 May 2011 is reproduced at No 6/5 of process.  Mr Bovey drew attention to the headnote on the form which indicates that it is apposite for an application for “… discretionary leave by a person who, following refusal of asylum was granted one of the following:

• Less than four years exceptional leave,
• Humanitarian protection,
• Discretionary leave.”

It was submitted that on the face of it the form was the appropriate one because the petitioner had been refused asylum and had subsequently been granted discretionary leave albeit that discretionary leave was not granted immediately following the refusal of asylum or as a direct result of that decision.

[8]        Section 51 of the Immigration Asylum & Nationality Act 2006 provides that the Secretary of State can require applications to be accompanied by a specified fee.  It provides also that delegated legislation can, amongst other things, provide for the waiver of fees in various circumstances.  The fees order relevant to the petitioner’s circumstances is the Immigration & Nationality (Fees) Order 2011.  Regulation 3(1)(2) thereof provides that applications for leave to remain in the United Kingdom must be accompanied by the fee specified in regulations made under section 51(3) of the 2006 Act.  The regulations specifying the appropriate fee for those in the petitioner’s case at the material time were the Immigration & Nationality (Fees) Regulations 2011, Regulation 7(1)(b) of which provided that where the application was for limited leave to remain in the United Kingdom the fee payable was £550 for postal applications.  Mr Bovey acknowledged that Regulation 14(c) of those regulations, in listing the exceptions to a fee being payable, provided that no fee was payable where the applicant was a person who had been granted limited leave to enter or remain in the United Kingdom outside the provisions of the Immigration Rules on the rejection of their claim for asylum.  It was conceded that the petitioner could not be categorised as being exempt from payment of a fee as the limited leave to remain that he had been granted was not made on the rejection of his claim for asylum but some years later after he applied for leave to remain on the basis that he was married to a UK citizen.  He maintained, however, that the petitioner fell within the category of being someone who was granted limited leave to remain “following the refusal of an asylum claim”.  In any event, it was accepted that regulation 37 of the 2011 Regulations provided at the material time that any application submitted without the appropriate fee was not valid. 

[9]        The nub of the issue on validity or otherwise of the form No 6/5 of process was whether the expression “following refusal of asylum” could be read as meaning any time after there had been a refusal of asylum, regardless of what events had occurred in between or whether the application was necessarily causally linked to the refusal of asylum.  It was submitted that the expression in the form was ambiguous and could mean either of those things.  Under reference to the case of Alvi v SSHD [2004] UKSC 33 in which the court had in turn  referred to the case of Granovski v SSHD [2015] EWHC 1478 (Admin), it was submitted that the respondent could not rely on statements contained in documents which had not been laid before Parliament.  The significance of that for the petitioner’s case was that Rule 34 of the Immigration Rules stated only that relevant applications must be made using the specified forms.  The forms had not been laid before Parliament and therefore had a lesser status.  Mr Komorowski objected to this argument on the basis that it was new and not canvassed in the petition.  Mr Bovey accepted that but maintained that it was a factor in this case that the correct form could only be determined by reading the website and not from the primary rules themselves. 

[10]      The contra proferentem rule should apply to the ambiguity in the relevant form.  The rule had wide application and could apply to decrees and therefore to statutory forms – R (Algeria) (K) (Congo) & Y (Nigeria)(& F) v SSHD [2006] EWCH 3513.

[11]      Mr Bovey accepted that even if the petitioner was correct that the word “following” in the form was misleading, the petitioner still had to address his failure to pay the fee.  On the facts it had to be accepted the petitioner was not exempt from paying a fee in the circumstances but it was said to have been unreasonable of the respondent to treat the application as invalid in circumstances where the petitioner had been misled into using the form by the respondent or at least she had issued ambiguous instructions such that it was reasonable for the petitioners to use that form.  As the Form HPDL confirmed on its face that no fee was payable, someone in the petitioner’s position wouldn’t be alerted to the requirement to  pay a fee, having been misled by the word “following” in the form. 

[12]      The respondent’s letter of 4 March 2012 (No 6/9 of process), issued ten months after the application was made simply states that it was invalid because the wrong form was used and no fee accompanied the application.  This was said to be inadequate in explaining what the position was.  Four main reasons for the proposition that the respondent was unreasonable in rejecting the petitioner’s application of May 2011 were put forward.  First, the requirement to tender a fee was waived by the guidance.  In case of R (Omar) v SSHD [2012] EWHC 344 in circumstances where agents were claiming to have lodged both a form HPLD and an FLR (O) but with no fee, it was decided that the Secretary of State had discretion where someone had not paid the fee at least in relation to the gap in leave created.  The  decision in Omar did make clear that a lack of express power to waive a fee was lawful.  Nonetheless, it was argued for the petitioner that the respondent had here waived the requirement for a fee and that she was entitled to do so given the extent of her powers.  Waiver of the fee was by of ex gratia concession, something the respondent could do on the ground of general public interest – R (Zequiri) v SSHD [2002] INLR 291 at para 56. 

[13]      Secondly, the petitioner was misled by the guidance into not paying a fee and accordingly had a legitimate expectation that his application was valid.  Again Zaquiri was authority for the proposition that where a public authority acts contrary to a representation made by it that authority will be acting with conspicuous unfairness.  Thirdly the letter of March 2012 appeared to give the petitioner an opportunity to rectify any shortcomings of the initial application by suggesting that a valid application be submitted and it was unfair in those circumstances to fail to recognise retrospectively the validity of the original application.  Fourthly even if the letter could not be construed as the respondent giving the petitioner an opportunity to rectify matters it was wrong of the respondent not to give such an opportunity.  Reference was made to R (Iqbal) v SSHD [2015] EWCA Civ 838 in which it was confirmed that an invalid application does not affect leave to remain under section 3(C) of the 1971 Act as that leave continued, notification of invalidity not being an immigration decision.  In R (UFOT) v SSHD [2016] EWCA Civ 298 the Court of Appeal made a clear suggestion that the respondent should assist claimants such as the petitioner who make errors in their application.  That the respondent should give some latitude to applicants been recognised in the Home Office internal guidance to their employees about specified application forms and procedures.  That guidance, lodged at (6/30 of process) was valid from 23 December 2013 and while it doesn’t apply to the present case it illustrates that the respondent has discretion to do what is fair to people in the petitioner’s position.  From 2016 guidance was now in place making clear that applications could be retrospectively validated, albeit only if a fee has been paid.  In this case the respondent was in a position to give the petitioner the opportunity to put in a valid application and on one view that is what was done on 6 July 2012.  The ultimate response to that application was that it was voided and the fee refunded because limited leave to remain was subsequently granted.  It was unreasonable for the respondent to process the 6 July 2012 application in a way that gave the petitioner less favourable leave to remain than that to which he was on the face of it entitled.

[14]      Anticipating the respondent’s arguments on mora, taciturnity and acquiescence, Mr Bovey referred to the chronology of events from 2004 through to 2015.  The law in this area had been reviewed by the Inner House in Portobello Park Action Group Association v City of Edinburgh Council [2013] SC 184.  It had there been confirmed that all three elements of mora, taciturnity and acquiescence had to be present for the plea to be sustained.  Further, the particular circumstances of each case required to be examined carefully before determining the plea.  In the present case,  it was said that much of the delay had been on the part of the respondent and that the petitioner had not delayed for a period such as would give rise to an inference of acquiescence.  In 2015 the petitioner had applied for legal aid and instructed counsel to draft a petition.  During all correspondence since 2012 the petitioner and his agents had been insisting that the initial application of 2011 was valid and they had been active in their attempts to resolve matters.

 

Submissions for the respondent
[15]      Mr Komorowski addressed matters chronologically and dealt with the issues arising from his preliminary plea of mora, taciturnity and acquiescence together with the discussion of the merits.  The background that there were two distinct periods in the petitioner’s claims to stay in this country.  First he had applied for asylum, that had been rejected and he became appeal rights exhausted in November 2003.  It was not until March 2004 that he first applied to stay in this country as a spouse of a UK citizen.  The grant of DLR in 2008 did not follow the refusal of any asylum claim nor was it related to the circumstances of that claim.  It was on different grounds and not connected with that refusal.  It followed an application on a non‑asylum basis. 

{16]      The primary issue on the merits was whether the respondent had erred in rejecting the form HPDL as invalid.  Related to that was the question of whether the respondent could competently specify in a form what type of application it covered.  Reference was made to the Immigration, Asylum & Nationality Act 2006.  Section 50(1) thereof provides that rules can be made requiring a specified procedure to be followed, specified forms to be used and provision about the manner in which a fee is to be paid in connection with immigration matters.  Section 50(2) provides that the respondent may require the use of a specified form, the submission of specified information or documents and may direct the manner in which a fee is to be paid in connection with the any immigration application.  Accordingly, the primary legislation provides two routes for specifying what forms are to be used and fees to be paid, either through rules or a requirement given by the respondent.  It followed that  the use of a specified form for a particular application is clearly something that the respondent could lawfully insist upon.  She is entitled to specify on a particular form the types of application for which it can be used and such specification is legally effective.  So far as the expression “following refusal of asylum …” in the HPDL form was concerned it was submitted that this meant “consequent on” which was the meaning given to it by the respondent.  The word “following” normally suggests some relationship between what came before and if the context mattered then that context was helpful to the respondent’s position.  The form HPDL included questions for the applicant  in relation to periods spent outside the UK following refusal of an asylum claim and required the applicant to confirm whether he has a continued fear of returning to the country from which he sought protection.  The context accordingly supported the respondent’s position that the form was not the one required for an application based on family life.  The fees regulations referred to by counsel for the petitioner referred to leave granted “on” refusal of an asylum claim.  Unlike the position in R (Algeria) v SSHD [2006] EWCH 3513 (Admin) there was a direct conflict between the decision made and the Immigration status document issued, here there was no inconsistency at all between the specified form and the applicable rules.  Accordingly the reference to the contra proferentem rule in the R (Algeria)  case was made in a situation of there being no ambiguity and the rule accordingly not applying.  The case involved a direct contradiction between two documents relied on.  In this case, at best, for the petitioner there was ambiguity.

[17]      It was accepted that the respondent had taken a significant period to respond to the petitioner’s application of May 2011.  A ten month period was, regrettably, not exceptional standing the burden of work on the respondent.  However, the response of 4 March 2012 by the respondent (No 6/9 of process) contains a clear statement that the application tendered on behalf of the petitioner was invalid and that a valid application would be required.  It was not an invitation to validate the original application.  It was notice that a further application was required.  Notice was also given in the letter that a fee had to be paid.  Accordingly, both the invalidity of the form and relevant fee issue were in play from 4 March 2012.  At that point the petitioner and his advisers will have known the significance of the application being invalid, namely that the petitioner had not made a timeous application to continue his period of DLR.  It was not in dispute that if the 2011 form had been valid the petitioner would have received the benefit of the transitional provisions in place after the new policy came into force in July 2012.  The invalidity of the 2011 application could hardly be in doubt given the acceptance that without payment of a fee where one is required an application is invalid.  Any suggestion by the petitioner that the respondent had somehow waived payment of a fee in advance was without any authority.  So far as the legitimate expectation argument was concerned there would have to be something unequivocal creating the expectation and something  unfair about how the statement maker had disappointed the applicant.  The petitioner’s argument required an elevation of the application form to a status above the fees regulations and that had to be wrong.  The petitioner or his agent had simply misunderstood which form to use and no legitimate expectation could arise from that.  It could not be said there was any unequivocal statement in this case, even the petitioner’s counsel appeared to accept that at best for him the form was ambiguous.  In R (Zequiri) v SSHD [2002] INLR 291, at paragraph 44, it was emphasised that any statement said to have been relied on had to be “clear unambiguous and devoid of relevant qualification” before the public authority in question could be said to have been conspicuously unfair by issuing it.  This had been reiterated in the Inner House decision of DM v SSHD [2014] CSIH 29.  It was also noteworthy that a statement creating a legitimate expectation must intra viris – Fayed v Commissioners of Inland Revenue [2004] SC 745 at para 118.  It was clear from the case of R (Omar) v SSHD [2012] EWHC 344A (Admin) that there was no residual discretion in the rules in relation to the waiver of a fee at the material time.  Accordingly even if the respondent had made a statement to the contrary creating a discretionary exemption from the fees (which she did not) that would have been ultra vires as the respondent would be flying in the face of the rules. 

[18]      On the question of whether there ought to have been an opportunity given to the petitioner to validate his application, Mr Komorowski submitted that the petitioner would have to have shown that the respondent had acted perversely in a Wednesbury sense in failing to give such an opportunity.  While Home Office policy has now changed and there is a discretionary power in relation to invalid forms to give 28 days to allow them to be rectified so that the full consequences of invalidity can be avoided, that recent change did not help the petitioner at all.  One had to ask what discretion it was that the respondent was supposed to have exercised in this case.  She could not make valid that which was clearly invalid.  Accordingly the pursuer’s presence in the UK automatically became unlawful.  That notional criminality existed as a matter of law.  What the Secretary of State has had and has is a discretion to relieve a person of those consequences.  The case of Omar goes no further than recording that the respondent had a discretion to decide that a “gap” in lawful leave would not be taken into account against an applicant.  It was accepted that in this case the respondent had the power to treat the petitioner under the old system but that was not a sufficient basis to conclude that she was not entitled to act as she has done.  As it transpired the route she took was to grant DLR to the petitioner for two and a half years notwithstanding that he had effectively been present in the UK without any leave since the previous period expired in May 2011.  While another decision might have been reached that was of course not sufficient to find the respondent’s decision  unreasonable.  It had been emphasised in the case of R (Walker) v SSHD [2010] EWHC 2473 at paras 27 and 28 by Beatson J that while applicants and claimants in this context are not to be blamed for the failures of their legal representatives, equally the respondent could not be expected to exercise discretion unless material upon which she could properly exercise that discretion was before her at the relevant time.  It was noteworthy, submitted Mr Komorowski, that the correspondence produced in this case contained no invitation to exercise discretion or an explanation as to why such discretion should be exercised favourably in favour of the petitioner.  No specific request was made at all for the exercise of discretion.  Items of correspondence lodged at 6/10, 6/11 and 6/12 illustrated this.  The petitioner could not expect the respondent to have exercised a discretion when she was not asked to do so.  For example the valid application submitted on 6 July 2012 (6/14 of process) was accompanied by a letter reiterating the agent’s view on behalf of the petitioner that the form submitted in 2011 had been the correct one.  Had there been an acceptance that the original form was invalid and an invitation to exercise discretion in all the circumstances there might be more room for potential criticism of the respondent if she had failed to do so.  The July 2012 application was ultimately voided and the fee returned once there was a prospect of the respondent considering the petitioner’s case exceptionally under Article 8.  That prospect was welcomed by the agents –letter of 11 January 2013 No 6/22 of process. 

[19]      While counsel for the respondent maintained that it should have been known from the outset  that the decision susceptible to Judicial Review was that of 4 March 2012, on any view by 20 August 2013 when the petitioner was granted 2½ years DLR it was clearly apparent that he was not being dealt with under transitional arrangements but under the new policy.  Correspondence around that time and subsequently made clear that the disadvantage to the petitioner in relation to the previous 6 years leave requirement as against the current 10 years leave was well understood by the petitioner’s agents.  Judicial Review proceedings had been threatened in January 2014 but there continued to be an absence of reference to the exercise of a discretion.  Accordingly, between the decision date of March 2012 and the raising of proceedings in August 2015 there was a 3½ year period when there had been no proceedings raised.  Looking at the authorities on mora, taciturnity and acquiescence, reference was made to Hendrick v Chief Constable [2014] SC 551 in which an Extra Division had confirmed (at para 44)  that the plea of mora, taciturnity and acquiescence may succeed if the first two elements are established and then either prejudice or acquiescence can be inferred from the facts and circumstances.  In this case it was acquiescence rather than prejudice that the respondent sought to infer.  In United Co-op Limited v National Appeal Panel [2007] SLT 831 Lord Glennie made clear (at para 31) that it was not enough to complain about a decision and give a deadline for a response from the decision maker if nothing happens after the passing of that deadline.  The fact that in this case the petitioner’s agents had threatened Judicial Review proceedings back in January 2014 was not a sufficient basis to meet the respondent’s plea.

 

Discussion
(1)        Plea of mora, taciturnity and acquiescence

[20]      I propose to address this first.  As will become clear my decision on the plea is sufficient to determine the petition.  However I will also express a view on the merits.

[21]      The chronology in this case illustrates clearly that the petitioner is in the situation of having lost the benefit the three years DLR accrued by him between 2008 and 2011 in consequence of the submission of an invalid application for a further three years leave.  The decision of the respondent of 4 March 2012 rejected the application not just because she considered that the wrong form had been used, but also because in the absence of the appropriate fee any application for leave of the type available to the petitioner was invalid.  Everything that occurred subsequent to the respondent’s decision of 4 March 2012 took place against a background of there being clear provisions about the gap in leave that was the inevitable result of the respondent’s rejection of the application.

[22]      In considering the arguments on mora, taciturnity and acquiescence, any delays on the part of the respondent are unlikely to be relevant.  In any event, the “clock started ticking” on 4 March 2012 when the petitioner’s agents were informed of the respondent’s decision.  The agreed facts and circumstances thereafter disclose that the petitioner and his agents maintained for some time that the form HPDL had been the correct one and that the respondent’s decision was wrong.  On that basis, certain of the steps taken on behalf of the petitioner, such as the lodging of the 9 July 2012 application might be regarded as having been made “under protest“.   However, by the summer of 2013 two important  events had occurred.  First the petitioner had been granted leave to remain for a 2½ year period under a completely separate route from that involving the lodging of the relevant form.  Secondly, the respondent had clarified beyond any doubt that the petitioner would not have the benefit of the transitional provisions of the July 2012 policy as a result of the failure to lodge a valid application prior to 29 May 2011.  Accordingly, from at least the summer of 2013 the petitioner and his agents could have been in no doubt that, absent  a reduction of the decision of March 2012, there could be no recovery of the loss of the accumulated leave period.  While the petitioner’s agents did threaten to raise Judicial Review proceedings in their letter of 22 January 2014 (6/25 of process), that appeared to relate more to the decision in August 2013 to grant to DLR for 30 months rather than the earlier refusal to accept the form HPDL.  In any event, the threat made in the January 2014 letter was an empty one between that date and 12 August 2015.

[23]      On any view, the delay in this case is a particularly substantial one, whether taken from March 2012 or August 2013 or even January 2014.  A significant delay constituting the  mora element is clearly made out.  The issue is whether all three elements necessary to found the plea are present.  I have concluded that they are.  Taciturnity, the failure speak out in assertion of a right or claim when a reasonable person in the same position would be accepted so to speak out, is not answered simply by reference to there having been correspondence between the parties on the matter.  Threats of litigation that are not followed through can amount to silence of the sort required.  Occasional breaks in the silence may be insufficient to avoid the consequences of the plea where the period as a whole is as substantial as exists in this case.   So far as acquiescence is concerned, the question is whether it can be inferred from the petitioner’s inaction and silence.  No issue of prejudice arises in this case.  The test for acquiescence is an objective one (per Lord Glennie in United Co-op Limited v National Appeal Panel at para 33).  In considering what someone looking objectively at the petitioner’s actions during the material period would have concluded, there are two particularly salient factors .  First, the circumstances surrounding the grant of exceptional leave under Article 8 made in July 2013.  As already indicated, this was an entirely separate decision to that for which the petitioner previously applied.  The opportunity arose because the respondent accepted, in a letter to the petitioner’s MP in December 2012 (No 6/21 of process) that the petitioner had been given a false expectation that his case would be reviewed under the legacy programme.  As the result the respondent agreed to undertake an exceptional Article 8 ECHR consideration of the petitioner’s case.  Two and a half years leave was granted.  Thereafter, the petitioner’s fee for the 6 July 2012 FLO (O) application was returned, something his agents had sought.  On any view those circumstances are suggestive of acquiescence on the petitioner’s part to the decision of the respondent that the original application of May 2011 was invalid.  Secondly, the threatened Judicial Review (against the decision of July 2013) failed to materialise.  By the time proceedings were eventually raised, more than 2 years of the 2 ½ years leave granted in July 2013 had passed.  So not only had there been no challenge to the material decision of March 2012 but anyone in the respondent’s position would reasonably have concluded that the alternative route to leave granted in 2013 was acceptable to the petitioner. 

[24]      There was an illuminating discussion at the conclusion of the hearing before me about the particular disposal sought by the petitioner.  Mr Komorowski pointed out that the bare declarator that the decision of 4 March 2012 was unlawful as sought by the petitioner begged the question of what would follow from that.  It was pointed out that no reduction of that decision was sought but that if it was unlawful as the petitioner claimed everything that had happened since then between the parties would somehow have to be examined.  No orders of specific performance were sought.

[25]      In response, Mr Bovey stated that the inclusion only of declaratory remedies rather than reduction was a recognition that time had passed since the original decision of March 2012 and that matters had moved on.  He conceded that it might be problematic to seek reduction of the decision of March 2012.  His aim was to seek an acknowledgment that it was wrong of the respondent to take action that created an injustice in the form of the gap in leave that was prejudicing the petitioner.  In my view these concessions made by Mr Bovey serve only to illustrate the strength of the respondent’s plea of mora, taciturnity and acquiescence.  The petitioner, through his agents, while protesting initially  that the respondent had concluded incorrectly that the application was invalid, proceeded to try to resolve matters in different ways.  Eventually something of a compromise was reached, whereby some leave was granted but with no decision to relieve the petitioner of the consequences of the significant gap in leave pending that decision being taken.  The substantive argument on the merits of this petition related primarily to the validity or otherwise of the May 2011 application.  A challenge to the validity of the respondent’s decision could have been made at any time from 4 March 2012.  In all the circumstances and for the reasons given I consider that the plea of mora, taciturnity and acquiescence is well founded.

 

(2)        Merits
[26]      Had I reached a different conclusion in relation to the respondent’s preliminary plea I would still have dismissed the petition on the basis that the argument that the respondent has acted unlawfully or Wednesbury unreasonably has not been made out.  Counsel for the petitioner was careful not to go quite so far as to assert in terms that the petitioner’s application of May 2011 had been perfectly valid.  His argument was rather that someone in the petitioner’s position could reasonably consider the form HPDL to be the appropriate one and accordingly to conclude that no fee was payable because in the circumstances in which that form was to be used, a fee exception was in place.  The insurmountable difficulty facing the petitioner in relation to the 2011 application is that the Immigration & Nationality (Fees) Regulations 2011 applicable at the time are clear in specifying that only someone granted to enter or remain in the UK outside the provisions of the Rules on the rejection of their claim for asylum was exempt from paying a fee when lodging a further application for leave to remain.  As regulation 37 of the 2011 Regulations provided that any application without the appropriate fee was not valid, the respondent was entitled to reject the petitioner’s application of May 2011 on the basis of the lack of payment of a fee alone. 

[27]      The only argument then open to the petitioner was that, if the form was ambiguous and could be interpreted as being appropriate whenever there had been a refusal of asylum in the past, regardless of events occurring thereafter, the petitioner had been given a legitimate expectation that he was using the correct form and did not require to pay a fee.  In my opinion, there is no real substance to this argument.  The respondent was entitled to specify which forms should be used for which type of application and the relevant fees regulations had to be read in conjunction with those.  As Mr Komorowski put it, in order for the petitioner’s argument to succeed one would require to elevate the application form to a status weightier than the fees regulations themselves.  No authority to support such an unusual result was claimed to exist.  There was no unequivocal statement from the respondent that the form HPDL could be used in the petitioner’s circumstances.  More importantly, the respondent had no residual discretion at the material time to waive fees of this type – R (Omar) v SSHD [2012] EWHC 344A (Admin).

 [28]     Further, in relation to the argument that the respondent was somehow wrong not to exercise her  discretion to relieve the petitioner of the consequences of an  invalid application, I am not satisfied that the respondent’s stance in this case can be regarded as perverse or unreasonable.  The petitioner was ultimately granted 2 ½ years leave notwithstanding a gap of more than two years (30 May 2011 – July 2013) when he was present in the UK without any lawful entitlement.  The respondent’s decisions in relation to this case have applied the relevant provisions correctly,  while showing some willingness to find a practical solution.  One cannot help but to have some sympathy with the petitioner’s situation.  He is not someone about whom the respondent has any concern in terms of his presence in the UK.  However, sympathy for the petitioner or a feeling that one might have decided the matter differently is an insufficient basis to find the respondent’s decisions unlawful or Wednesbury unreasonable. 

[29]      For these reasons, even had the plea of mora, taciturnity and acquiescence not been made out I would have rejected the petitioner’s argument that the respondent acted unlawfully.

 

Disposal
[30]      For the reasons given I will refuse the petition, reserving meantime all questions of expenses.