Kalsi & Ors, R (On the Application Of) v The Secretary of State for the Home Department

Factual and Procedural Background

This appeal arises from a decision of the Upper Tribunal (Asylum and Immigration Chamber) ('the UT') refusing permission to apply for judicial review. The Appellant ('A') sought permission to judicially review a decision of the Secretary of State dated 11 April 2019 ('decision 6'), relating to an application for leave to remain as a Tier 1 Entrepreneur Migrant. The grounds for judicial review primarily challenged a subsequent decision dated 23 May 2019 ('decision 7').

A's immigration history involves multiple applications for leave to remain and administrative reviews between 2017 and 2019. A was last granted leave valid until 18 April 2017 and made a series of applications thereafter, including application 1 (18 April 2017), application 2 (8 March 2018), and application 3 (2 July 2018). Application 3 was refused on the ground that A was an overstayer and thus not eligible under paragraph 39E of the Immigration Rules. Subsequent administrative reviews and reconsiderations maintained this refusal.

The dispute includes issues around the service date of decision 3 (refusal of application 2), which was signed for on 15 June 2018 but allegedly not received by A's solicitors until 20 June 2018 due to delivery to a different office occupant. This timing affects whether application 3 was made within the 14-day limit prescribed by the Immigration Rules.

The UT refused permission to apply for judicial review both on the papers and after oral hearing, concluding that A was an overstayer when application 3 was made and did not meet the exception under paragraph 39E. Permission to appeal was later granted by the Court of Appeal.

Legal Issues Presented

1. Whether the Secretary of State was bound to refuse application 3 because the Appellant was an overstayer when making that application and paragraph 39E of the Immigration Rules did not apply.
2. Whether the Secretary of State had any residual discretion to grant application 3 despite the mandatory refusal under the Immigration Rules.
3. Whether the service of decision 3 was validly effected on 15 June 2018 or effectively on 20 June 2018, and the implications for the timeliness of application 3.

Arguments of the Parties

Appellant's Arguments

• The Appellant accepted being an overstayer but argued that application 3 was made in time if the 14-day period ran from 20 June 2018, when the solicitors actually received decision 3.
• The delay in receipt was caused by the previous solicitors or Royal Mail, not the Appellant, and thus the Secretary of State should have exercised discretion in favour of the Appellant.
• The Secretary of State fettered discretion by not considering the exercise of discretion outside the Immigration Rules.
• The refusal to exercise discretion was unfair and procedurally improper, especially given the length and complexity of the Appellant's immigration history and the conceded errors in earlier decisions.
• The Appellant relied on legal principles allowing courts to extend time in judicial review applications where delay was due to reliance on legal advice, citing R (Tofiq) v Immigration Appeal Tribunal.

Respondent's Arguments

• The Appellant was an overstayer when application 3 was made, mandating refusal under the Immigration Rules.
• Decision 3 was properly served on 15 June 2018, and application 3 was not made within 14 days of that date.
• The Secretary of State has no residual discretion under the points-based scheme to grant leave if mandatory grounds for refusal apply.
• Paragraph 39E only applies to applications following a previous in-time application; application 2 was not in-time, so application 3 could not benefit from paragraph 39E.
• The burden of proof for non-receipt of decision 3 lies with the Appellant, and the presumption of valid service applies unless rebutted by evidence.
• Decision letters, though sometimes confusing, must be read as a whole and do not confer any discretion to override mandatory refusal grounds.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed whether the Secretary of State was bound to refuse application 3 due to the Appellant's overstaying status. It concluded that under paragraph 245DD(g) of the Immigration Rules, leave cannot be granted to an applicant in breach of immigration laws unless paragraph 39E applies. The Court found that paragraph 39E did not apply because application 3 was not made following a previous in-time application, as application 2 was not in-time. Accordingly, the Secretary of State was obliged to refuse application 3.

Next, the Court considered whether the Secretary of State possessed any residual discretion to grant application 3 despite the mandatory refusal. The Court found that no such discretion exists under the points-based scheme, relying on binding authorities. The decision letters' references to discretion were erroneous assumptions by caseworkers.

Lastly, the Court examined the issue of service of decision 3. Although this did not affect the substantive outcome, the Court found it arguable that valid service was not effected until 20 June 2018 when the solicitors actually received the decision, not 15 June 2018 when it was signed for by another office occupant. The Court considered that the Secretary of State failed to properly engage with this evidence. However, this did not impact the mandatory refusal of application 3, as the relevant Rules did not permit discretion or extension of time in these circumstances.

The Court noted that clearer reasoning in the Secretary of State's decisions regarding service and discretion might have affected the question of costs.

Holding and Implications

The appeal is dismissed.

The Court held that the Secretary of State was required by the Immigration Rules to refuse application 3 because the Appellant was an overstayer at the time of application and paragraph 39E did not apply. There is no residual discretion to grant leave under the points-based scheme in these circumstances. Although it was arguable that the service of decision 3 was not effective until 20 June 2018, this did not affect the mandatory refusal.

The decision directly affects the Appellant by upholding the refusal of leave to remain. No new legal precedent was established; rather, the Court reaffirmed established principles regarding the mandatory nature of refusal under the Immigration Rules and the limits of discretion in the points-based system.