Shaikh, R (on the application of) v Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- HIS HONOUR JUDGE ALLAN GORE QC
Areas of Law
- Immigration Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
The case involves the claimant, an Indian citizen, who applied for further leave to remain in the UK but faced issues due to a missing signature on his application. The Secretary of State rejected the application, but the claimant re-submitted a signed application, which was still refused because he was an overstayer. The claimant sought judicial review on grounds of procedural unfairness and the necessity for the Secretary of State to consider residual discretion. The court held that there was no procedural unfairness, but the Secretary of State should have considered exercising residual discretion, leading to the quashing of the decision and remitting it for reconsideration.
J U D G M E N T
JUDGE GORE:
The claimant is a citizen of India, born on 16 February 1990, so he is now aged 24. On 9 October 2010 he arrived in the United Kingdom with an entry clearance as a Tier 4 general student which had granted him permission to enter and remain as a student until 17 May 2012. In time, although I have to acknowledge not by much, on 12 May 2012 he made an application for further leave to remain.
That application was defective according to the rules for the simple and sole reason that it had not been signed by the applicant. That mandated the Secretary of State's officials to treat the application as invalid for these reasons. Firstly, Immigration Rules, Rule 34(a) directing that, where an application form is specified it must comply with certain requirements, included at (6)(b) the requirement that, "the form must be signed by the applicant" and Rule 34 (c) provided that:
"Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34(a) such application or claim will be invalid and will not be considered".
That phrase, "will be invalid", is the source of the mandatory requirement of the officials of the Secretary of State to treat an unsigned application form as invalid.
Despite that defect, the Secretary of State acknowledged receipt of the application on 16 May 2012. The letter of acknowledgement stated that:
"If there is any problem with your application such as missing documentation, a case worker will write to you as soon as possible to advise what action you need to take to rectify the problem."
There is no evidence as to the date of receipt of either of these letters, but doing the best that I can in acknowledging that first-class post is no longer a promise of next day delivery, the realistic inference to draw is that these communications would have been received by their addressees on the second day after the date on which they were dispatched and that they are to be regarded as probably having been dispatched on the day on which they are dated. On 25 June 2012, that is therefore 39 days after the applicant applied for leave to remain, the Secretary of State rejected his application as invalid on the basis that the application form was not signed.
The decision letter is included within the bundle of papers prepared for the purpose of this hearing. It is quite simply a standard letter under a heading within which is said rea