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Court of Appeal unhappy with Home Office position and submissions in student case

Court of Appeal unhappy with Home Office position and submissions in student case

“Technical”, “deeply unattractive”, “disingenuous”, “singularly lacks merit”, “ridiculous”, “inappropriate”, “extraordinary”. All words used by Elias or Vos LLJ to describe the arguments advanced by the Home Office in the course of their judgments in the remarkable case of R (On the Application Of Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298. Vos LJ rounds off his criticism of the arguments thus:

In my judgment, none of these points should have been taken.Vos LJ

The background was striking. In short, a Nigerian student said he had made an application to extend his leave to study a BSc in Business Management at BPP University. With the application still pending, or so he thought, he began his studies. The Home Office denied receiving the application, though, and the course provider therefore booted him off the course. With it seeming that his leave had expired, the student decided he had to leave the UK. The Home Office held his passports, though, and he had to sign a disclaimer to have it returned. He then departed from the UK.

Spot the issue? If so, you have done better than the Home Office or the Upper Tribunal.

Yes, the Home Office were in possession of the student’s passports. How else might the Home Office have acquired the student’s passports other than it being submitted with an immigration application?

Counsel for the Secretary of State was Zane Malik, who advanced various arguments by which the Court of Appeal was unimpressed. See above. Essentially, most of the arguments relied on could only succeed if the student had been correct about submitting the extension application, which meant that the Home Office was relying on its own mistake to seek to defeat the claim now. The remaining argument turned on whether Upper Tribunal Judge Hanson had been entitled to find as a matter of fact that no application had been made by the student, and the Court held that Judge Hanson had not given sufficient weight to the reason why the Home Office both had and retained the passports.

The leading judgment is that of Elias LJ but the wording of the concurring judgment of Vos LJ is is even more stark. On this last issue of the return of the passports he is corruscating:

Good government requires the ability to make sound judgments in the defence of litigation. In this case, I asked Mr Malik expressly what the Secretary of State suggested might have happened on the basis of the facts if, as she submitted, the case that the appellant had sent his application for leave to remain on 17 April 2013 were to be rejected. He could not answer that question. In short, no explanation was offered as to how, even possibly, the appellant’s three passports might have ended up in the department’s north London passport bank on 25 April 2013 if they had not been sent to the department’s Croydon office on 17 April 2013 as the appellant contends.

Nor does Vos LJ spare the Upper Tribunal:

In this state of affairs, any fact-finding tribunal asked to consider whether the appellant had shown on a balance of probabilities that the application had been made, whether defective or not, would, I think, have had to conclude that it had.

Overturning the decision of Upper Tribunal, the Court found in favour of the student. To try and undo some of the damage, the Court takes the unusual step of not only quashing the decision but also making a declaratory order that the student had not overstayed and a mandatory order that he be readmitted to the UK for a period of 60 days.

To how many young students mistreated by the Home Office do these final words by Vos LJ apply?

I only add that it is a shame that this promising young man’s studies have been interrupted for so long by this unfortunate state of affairs.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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