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Court of Appeal: visa conditions do not count unless notified in writing

Court of Appeal: visa conditions do not count unless notified in writing

Today’s decision in Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134 confirms that if the Home Office wishes to impose visa conditions, it must give people written notice of those conditions. If the Home Office fails to do this, or is unable to produce evidence that the notice was sent, it will be unable to rely on any purported breach of a visa condition to justify a decision to refuse a subsequent application, curtail a person’s leave, or remove a person from the UK.

This decision could have wide-reaching ramifications, given that it is not currently Home Office practice to outline any conditions imposed when granting a visa application.

Bhimani and Afzaal overruled: conditions must be notified in writing

Muhammad Anwar, from Pakistan, had been studying at two institutions simultaneously, but only one was named on his Certificate of Acceptance of Studies (CAS). This is a document which must be issued by a university or college before leave to remain as a student can be granted.

Paragraph 245ZY of the Immigration Rules indicates that leave to remain as a student will be granted subject to a condition prohibiting study except at the institution providing the CAS, or supplementary study. The first ground of appeal was that this rule was unlawful on the basis that the Home Office has no power to restrict the location of a person’s studies. This submission was rejected by the court.

But Zane Malik of 12 Old Square, for Mr Anwar, also submitted that the Immigration Rules themselves are not sufficient to impose conditions; the condition must be applied to the individual case by issuing a written notice. The Court of Appeal agreed, overruling the Upper Tribunal’s decision in Bhimani (Student: Switching Institution: Requirements) [2014] UKUT 516 (IAC) and the High Court’s decision in R (Afzaal) v SSHD [2014] EWHC 2215 (Admin).

Both of these cases had held that the Immigration Rules themselves were sufficient to impose conditions. The court decided that these decisions are wrong and should not be followed by lower courts and tribunals. It reached this conclusion for six reasons:

  1. The immigration rules state that conditions “will” be imposed, not that they have been imposed
  2. Section 4(1) of the Immigration Act 1971 requires written notice to be given. Publication of the Immigration Rules does not constitute the giving of notice
  3. The Home Office is not bound by the Immigration Rules; it can (and often does) grant leave to remain outside the Rules
  4. It has previously been held that a decision is ineffective until notice in writing is given
  5. Requiring written notice is consistent with the constitutional principle that individuals have a right to know of a decision which affects them. This is particularly important given that breaching a condition attached to a grant of leave to remain is a criminal offence
  6. Requiring written notice is not unduly onerous

In Mr Anwar’s case, “Home Office records do not record whether the grant letter was actually sent”. The Biometric Residence Permit and information leaflet that did go out were not sufficient to give notice.

Generic information leaflets are not enough

At first glance, it may seem that this judgment has limited significance. All the Home Office is required to do is issue a written notice confirming that the conditions outlined in the Immigration Rules have been imposed. This is noted in Peter Jackson LJ’s short concurring judgement:

All that is needed to satisfy the legislation is to communicate to an applicant when leave is granted a simple statement in writing of the relevant conditions(s), setting out with clarity what is and what is not allowed, so that there can be no mistaking the obligations that arise and the serious consequences of non-compliance.

But the Home Office does not currently do this. Instead, it sends a generic information leaflet, similar to the leaflet considered by the court in Anwar and determined insufficient. As explained at paragraph 88, the leaflet

…does not have, nor does it purport to have, the status of an official document notifying a person of something as important as the conditions attached to his leave to remain in this country. No doubt it is useful for what it is, an information leaflet, but it is no more than that.

This judgment appears to suggest that the Home Office has consistently and systematically failed to impose conditions when granting applications for leave to remain. This is particularly significant in categories such as Tier 1 (Investor), Tier 1 (Entrepreneur), and Tier 4 (General) where there are numerous, often complex, conditions which must be complied with.

If the Home Office has failed to give written notice of these conditions, they do not apply.

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Even if the Home Office does begin incorporating notice of conditions into its decisions, in my experience caseworkers often fail to recognise the significance of lawfully serving the decisions they make. It is common for the Home Office to be unable to produce proof of postage or even to clarify the date on which a letter was sent (often decisions are received several weeks after they are issued). There appears to be a reliance on case-working notes within the Home Office, rather than the underlying documents the notes refer to. Notes will be insufficient to demonstrate that notice has been given.

As such, even if the Home Office amends its practice, there may still be cases in which it is unable to demonstrate that it has complied with the requirement to give written notice of any visa conditions. The decision in Anwar confirms the legal effect of this: that no such conditions have been imposed at all.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. He regularly assist clients with applications, appeals and judicial reviews in relation to EEA free movement rights, the right to private and family life and the best interests of the child, the Points Based System applicable to entrepreneurs and international workers, and naturalisation and registration as a British citizen. Iain is a member of the Immigration Law Practitioners’ Association and a member of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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