R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO- procedural unfairness) IJR (2015) UKUT 224 (IAC)
Summary
This is a good case for you if you are a student and want to challenge a negative decision by the Home Office. It is a Judicial Review case regarding an Entry Clearance Officer’s decision to refuse a Tier 4 (General) student visa application. Given there is no right of appeal against refusal of a Points Based application, this is the only remedy when Administrative Review is not going to make any difference to the outcome.
The court says in it’s headnote the following:
(i) The common law principles of procedural fairness apply to the decision making processes of Entry Clearance Officers (‘ECOs’)
(ii) ECO interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously giving the applicant a fair opportunity to respond to potentially adverse matters. The ensuing decision must accord with the principles of procedural fairness.
(iii) A breach of the ‘Caseworker Guidance’ MAY render a decision of an ECO unlawful. As a general rule, a challenge advanced on this basis will only succeed where Wednesbury irrationality or a material procedural irregularity is established.
The facts of the case
The initial application for Permission to apply for Judicial Review was refused on the papers, but was successful when renewed by way of on an oral application to the Court.
The applicant applied for a visa (otherwise known as ‘Entry Clearance’) as a Tier 4 student. In refusing the application, the ECO relied on paragraph 245ZX of the Immigration rules.
‘The ECO must be satisfied that the applicant is a genuine student.’
The applicant scored the requisite 40 points for attributes and maintenance, and the General Grounds for Refusal were not relied on. But the ECO did refuse on the grounds the applicant was not a genuine student. In doing so, the ECO relied in part on matters that were pot to the applicant in interview. But importantly, the Judge decided that some of the issues raised, which led to the ECO’s conclusion that the student was not genuine, were unreasonable on the part of the ECO, given the responses provided in interview.
Further, other matters were not put to the applicant, and so did not give the applicant an opportunity to respond to the ECO’s doubts. The Judge concluded that the decision making process that led to the refusal was ‘manifestly unfair’. He continued, ‘the decision of the ECO cannot be sustained.’
A further ground of challenge relied on the fact that the ECO’s decision was not compatible with ‘Case worker Guidance’ relating to Tier 4 interviews and the genuine student rule published in December 2013.
Paragraph 2 of the Guidance states
‘An application should not be refused under paragraph 245ZV(k) unless the applicant has had a chance to respond to questions at interview ( a credibility or genuiness interview) unless one of the following circumstances apply..’
None of those circumstances were applicable in this case.
Therefore the Judge concluded that this provision of the Guidance was breached, based on the mismatch between the questions put to the applicant in interview and the ECO conclusion that followed.
The Judge ordered that the decision of the ECO be quashed and that the applicant was entitled to his costs in full and permission to appeal to the Court of Appeal was not appropriate given the specific facts of the case.
HOW DOES THIS AFFECT YOU ?
This case is a good example of the power of Judicial Review with the right kind of case, ie one where you can show that the decision was procedurally unfair, and contrary to the Home Offic’s own policy, in this case as to how to deal with the thorny issue of how decisions are made as to whether a student is ‘genuine’.
Of course you should be mindful of the fact that there are costs implications with this kind of challenge, but an experienced lawyer should be able to give you a view on merits at the outset of a case. Just becuase you are abroad and far away from the UK, you should not be let a bad decision go unchallenged if you do want to study in the UK.
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