Unfairness in visa decision-making – students

It is not unknown for someone to come to the conclusion that a Home Office decision is unfair.

 

But if a decision seems harsh and pedantic but is technically correct it may not deemed to be unfair. Some areas of the immigration rules are notoriously complex and it is very easy for an applicant to slip up and make a minor error. In such a case the applicant might have met the spirit of the rules but not the letter of the rules and it is likely that such an application will be refused.

 

Such matters have on occasion reached the Upper Immigration Tribunal and the higher courts, but applicants have not been very successful. The courts often criticise the complexity of the rules but nonetheless they also say that the Home Office is entitled to have fiendishly complex rules if they really want to. The higher courts have the power to strike down or amend the interpretation of an immigration rule on the grounds of illegality or irrationality but the bar is set very high and this happens rarely.

 

But in some cases there is a different kind of situation. Sometimes the circumstances might indicate a level of unfairness in the decision-making process to such a degree as to invoke the legal concept of the “common law duty of fairness”. This can potentially render a decision unlawful.

 

Such a case, a few years ago before the Upper Tribunal, was “Patel”. Mr Patel is an Indian national and he had applied to extend his student visa. However, whilst his application was being processed his educational sponsor lost their Tier 4 sponsor licence but Mr Patel was unaware of this. The Upper Tribunal held that fairness required that he be given reasonable time to find a new course and that it was wrong of the Home Office to simply refuse his application without giving him the opportunity.

 

But the unfairness argument does not always work. In a recent case before the Court of Appeal called “Rauf”, Mr Rauf (a Bangladeshi national) showed that he had undoubtedly received some very rough treatment.

 

He had successfully applied to the University of Sunderland to study an MBA course. But then the Immigration Minister gave a speech in the House of Commons saying that the Government was investigating alleged abuse of English qualifications by international students. This evidently put the frighteners on the University of Sunderland, and they suddenly wrote to Mr Rauf telling him that their offer was now withdrawn.

 

This was rather peculiar because Mr Rauf did not need to pass any English test because of his already-existing qualifications. (And, incidentally, he was never at any point accused of or implicated in any wrongdoing.)

 

Then the Home Office wrote to Mr Rauf telling him that his leave had been curtailed because he had failed to commence studying with his university sponsor. Sharp-minded readers will spot the fact that he had not commenced his studies with his sponsor because his sponsor would not let him, and the situation was thus somewhat circular and unfair.

 

But who had actually done the unfairness? The Home Office had done nothing wrong. Immigration Ministers are allowed to make speeches in Parliament if they feel like it and the decision was in line with the Home Office’s immigration rules. The university may well have acted irrationally or unfairly, but the Court of Appeal could not adjudicate on this; they could only adjudicate on whether the Home Office – being the relevant public body – had been unfair.

 

The court compared his case with that of Patel but identified important differences, and the upshot was that Mr Rauf was unsuccessful, although the court was kind enough to say that it had sympathy for him.

 

Common law duty of unfairness cases can be difficult and the courts may need some strong persuasion. If you are involved in such a case you certainly need a competent lawyer on your side.