Gu v Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- MR JUSTICE FOSKETT
Areas of Law
- Administrative Law
- Immigration Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
The case involved a judicial review to interpret paragraph 245AA of the Immigration Rules. The claimant, a Chinese national studying in the UK, applied for further leave to remain due to retaking a module but his application was rejected for failing to meet evidential requirements regarding maintaining funds. The court held that paragraph 245AA was not engaged as the missing bank statement was not from an established sequence. The court emphasized the importance of the sequence's start and end existing before invoking the provision, pointing out resource implications of requiring extensive follow-up.
Judgment
MR JUSTICE FOSKETT:
This application for judicial review, permission to apply for which was granted by His Honour Judge Mark Rogers on 22 October 2013 following an oral renewal hearing, raises a short issue on the interpretation of paragraph 245AA of the Immigration Rules. The general background to the issues sought to be addressed by that paragraph is, of course, dealt with comprehensively in SSHD v Rodriguez & Others (reported as Patel & Others v SSHD [2014] EWCA Civ 2 ), which focused on the “Evidential Flexibility policy” described fully in paragraphs 45 et seq of the judgment of Davis LJ.
Paragraph 245AA was incorporated in the Immigration Rules on 6 September 2012 and it is not in dispute that it (or, more accurately, the then extant version of the paragraph) was in force at the time the decision challenged in these proceedings was taken. That paragraph was not directly the subject of the decision in Rodriguez although it was referred to by Davis LJ at paragraph 47 when he said that “what was contained in the Evidential Flexibility policy guidance has in effect been incorporated into the Immigration Rules themselves from 6 September 2012.” I will return to the terms of the paragraph after setting out the immigration background of the Claimant.
He is a Chinese national studying for a BA (Hons) in Business Studies at Birmingham City University. On 29 July 2010 he was granted leave to enter the UK as a Tier 4 (General) Student valid until 10 August 2011. On 9 August 2011 he applied for and was granted further leave to remain on the same basis until 30 August 2012.
On 30 August 2012 he applied for further leave to remain, again on the same basis, because he needed to re-study one core module in order to complete his degree. However, the application was not accompanied by the requisite fee and, by a letter dated 19 September 2012, the application was rejected as invalid. The letter told him that if he wished to make a further application then he should return a fully completed application form with the appropriate fee to the relevant address.
On 27 September 2012 (by which date the Claimant had no extant leave to remain in the UK) he submitted a further application for leave to remain as a Tier 4 (General) Student with the appropriate fee, but the evidence required under the Points Based System was lacking in a respect to which I will now turn.
The evidential requirement set out in paragraphs 1A and 1B(a)(i) of Appendix C of the Immigrat