Afghan student’s application for indefinite leave to remain dismissed, but judge calls on Home Office to reconsider

Lord Tyre
Lord Tyre

A student from Afghanistan who has lived in the UK for more than five years has had a legal challenge against a decision to refuse her application for indefinite leave to remain dismissed.

The petitioner was seeking to continue her studies in aircraft engineering, but the Home Office rejected her application on the basis that her circumstances were not “exceptional” – a decision upheld by a judge in the Court of Session.

‘Discretionary leave’

Lord Tyre heard that the petitioner, “AZ”, who was born in 1999, is a citizen of Afghanistan whose father came to the UK some years ago to claim asylum, and was granted indefinite leave to remain (ILR) in 2009. 

The petitioner and her mother and three siblings came to the UK in 2013, once the petitioner’s father had satisfied the Home Office that he had sufficient income to support them, following which they were granted “discretionary leave to remain” on a five-year route to settlement. 

But the petitioner’s father developed health problems which for a period prevented him from earning, meaning the family were unable to apply for ILR in 2018, although the petitioner and the other members of the family were hoping to apply for ILR in 2023 after 10 years’ lawful residence in the UK.

Since coming to the UK, the petitioner has demonstrated an ability to undertake higher education, and she applied and was accepted for an HNC course in aircraft engineering at the University of the Highlands and Islands at Perth.

A person in the position of the petitioner with limited discretionary leave to remain is charged overseas student fees of £6,720 per annum, but according to the petitioner’s averments, a person with ILR would be treated in the same way as a home student who, in Scotland, has the whole of their tuition fees paid for them by the Scottish Government. 

The petitioner applied for ILR, for which she required to pay a fee of £2,408.80, stating that she accompanied her mother to the UK under five-year spouse settlement route, and that having now accrued over five years’ residence she wished to continue her education in aircraft engineering at UHI in Perth, and therefore was seeking settled status “ASAP”.

However, her application was refused on the basis that it had “not been demonstrated that your circumstances are so exceptional or significantly compelling to warrant indefinite leave to remain outside of the Immigration Rules”.

‘Irrational decision’

The petitioner raised judicial review proceedings against the Secretary of State for the Home Department seeking reduction of the decision refusing to grant her ILR, and also reduction of a part of the respondent’s policy in relation to discretionary leave to remain, on the ground that it failed to take account of the “distinctive position” of Scottish students regarding tuition fee support.

On behalf of the petitioner it was submitted that the respondent’s decision refusing ILR should be reduced because it failed to take account of the fact that in Scotland the granting of ILR would not merely result in the charging of reduced tuition fees or the availability of student loan finance, but rather would mean that the petitioner would have her tuition fees paid for her. 

Although the petitioner’s application did not expressly mention either the importance of obtaining finance or the significance of the difference between Scotland and England & Wales, the respondent had to be taken to be aware of both matters and of the terms of her own published policy, without having to be reminded that the real barrier to persons with DL accessing further or higher education was liability for fees. 

Instead, she had described further education and studying as “not an applicable reason” for granting ILR outside the rules, and had “closed her mind”.

In so doing she had failed to address the specialties of the petitioner’s situation, and had left out of account a matter critical to her decision, meaning her decision was “irrational and inadequately reasoned”.

‘Not unlawful’

Dismissing the petition, the judge ruled that the decision was “not unlawful”, but called on the Home Office to reconsider the application without the need for the petitioner to pay another fee.

In a written opinion, Lord Tyre said: “There is no doubt that the decision did not address the difference that exists between Scotland and England & Wales regarding tuition fees for further and higher education. The difficulty for the petitioner is that the respondent was not asked to address it. 

“The reason given in the petitioner’s application for ILR was not that she wanted to secure payment on her behalf of her tuition fees but rather that she wished to take up an offer of a place in higher education. The decision letter states, quite accurately, that further education and studying is not a reason for granting ILR outside the rules: as the asylum policy instruction makes clear at paragraph 4.3, persons with DL are able to enter further or higher education.

“The question is whether the respondent erred in failing to read the reason stated in the petitioner’s application as referring to funding of higher education rather than entry to higher education, and then further erred in failing to be aware of and to take account of the availability of payment of tuition fees in Scotland for certain persons with ILR, and then further erred in failing to appreciate that this was a material consideration against the background of the petitioner’s financial situation as narrated in her application. In my opinion this is asking too much of the decision-maker. 

“The respondent was, in my opinion, entitled to approach the question of whether, in accordance with paragraph 5.3 of the policy instruction, the petitioner has made out exceptional, compelling or compassionate reasons to grant ILR on the basis of the application made, and not on the basis of a different application that might have been but had not been made. 

“It is evident from the terms of the policy that no express account is taken in it of the availability in Scotland of tuition fee support; that being so, the onus lay, in my opinion, on the applicant to raise the matter as a reason for departing from the ‘normal’ position as stated in paragraph 5.3, under reference to the situation applicable in England and also in Scotland in respect of anyone who does not meet the conditions for tuition fee support.

“Turning to the application for reduction of the policy set out in the paragraph quoted above from paragraph 5.3 of the DL policy document, I am not persuaded that any basis for reduction has been established.

“For these reasons, I shall accede to the respondent’s motion to sustain her fourth and fifth pleas in law (ie that in reaching her decision she did not leave out a material consideration, and that the DL policy is not unlawful) and to dismiss the petition.”

However, the judge added: “Although, as I have said, the terms of the respondent’s reply to the pre-action protocol letter cannot be taken into account as a reason for reduction of the decision to refuse ILR, they leave me with a sense of unease that the petitioner’s argument based on Scottish peculiarities of tuition fee support has not yet received substantive consideration by the respondent.

“It is not, of course, for this court to express any view as to how the respondent ought to exercise her discretion, were such an argument to be presented (under reference to material demonstrating that tuition fee support would in fact be available to the petitioner). 

“It may be open to the petitioner simply to make a fresh application, but that would, on the face of it, involve payment by her of a further £2,400 which no doubt she could ill afford. I would invite the respondent to explore with the petitioner’s advisers whether a means can be found for consideration of the argument for the granting of ILR that formed the basis of this petition, without the need for payment by the petitioner of another application fee.”

© Scottish Legal News Ltd 2020

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