<strong>Fair play?</strong>
Case of Marghia (procedural fairness) (2014) UKUT 366 (IAC)
<strong>Summary</strong>
This case deals with the issue of the common law duty of fairness. There is no absolute duty in law to make decisions which are substantively ‘fair’. The court will not interfere with decisions which are objected to as being substantively unfair, except where no reasonable decision maker could have arrived at the decision in question.
It is only for the Secretary of State aka the Home Office, whether she exercises her residual discretion. This does not appear in the Immigration rules, which is a matter purely for the Secretary of State and no-one else, including the Court.
<strong>The facts of the case</strong>
This was an appeal by the Secretary of State against a decision of the First Tier Tribunal who allowed an appeal by a Tier 4 student who was refused leave to remain on the basis that she did not satisfy the Immigration rules
The student had studied one course, and made an in time application to extend stay for another course. The course start date was then changed by the Institution, and through no fault of her own she then fell outside of the rules which state that the course subject to the new CAS letter was more than 28 days after the expiry of her visa.
The Judge, who was sympathetic to the claimant stated in their determination that the Respondent (the Home Office) was under ‘ a common law duty to act with fairness. I find that she had not been fair in refusing the claimant’s application. I find that the claimant was not at fault..’
The Judge allowed the appeal.
<strong>Point of law established by the case</strong>
The Upper Tribunal found that the common law duty of a decision maker is to make decisions in a manner that is fair, the duty of fairness is about procedural fairness – but that there is no duty at common law to make decisions which are substantively ‘fair’. The court found it would only interfere with administrative decisions which are ‘unreasonable’ ie that no reasonable decision maker could have arrived at such a decision.
The Tribunal found that the decision in this sense could not be unreasonable. It found that it is a matter for the Secretary of State as to whether or not to exercise discretion which does not appear in the Immigration rules, notwithstanding the claimant’s inability to meet the requirements of the Immigration rules. The exercise of discretion was for the Secretary of State alone, no one else, including the Court. The fact that the Immigration Judge may have had sympathy for the claimant or regarded the decision as ‘unfair’ was not to the point.
The court found that this was a case where the rules were crystal clear, as was the failure to meet the rules. It was open to the Secretary of State to make the decision that she did.
<strong>How it affects yo</strong>
If your case falls outside of the Immigration rules, then it is only for the Secretary of State, aka the Home office, to decide whether to exercise discretion in making their decision. An Immigration Judge cannot seek to put the matter right by way of Judicial Review, unless it can be said that what the Home Office did is arguably unreasonable, irrational or proceduraly unfair.
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