American couple lose legal challenge against refusal of leave to remain in UK

A judge in the Court of Session upheld the decision of the Secretary of State for the Home Department in refusing Russell Felber and Ellen Felber leave to remain after ruling that Immigration Rules had been “correctly applied”.

Indefinite leave to remain

Lady Carmichael heard that the U.S. citizens entered the country lawfully in March 2011; the first petitioner Mr Felber having obtained a three-year Tier 1 (Entrepreneur) visa, with his wife, the second petitioner, entering as his souse.

They set up a bed and breakfast business in Inverness and after being granted two-year extensions to their visas they applied for indefinite leave to remain (ILR) in February 2016.

The court was told that Entry on a Tier 1 (Entrepreneur) visa is a route to settlement, and providing that an individual complied with the terms of such a visa over a five-year period, he would normally have an expectation that an application for ILR would be granted, but the respondent refused their application.

Under the Immigration Rules, in order to obtain ILR an applicant must meet certain conditions and achieve a total of 75 points.

Employment condition

In this case the first petitioner complied with all relevant conditions, including one that he invest not less than £200,000 in the business, but failed to meet an “employment condition” requirement as to the jobs that must be created and maintained by the applicant’s business.

The respondent accepted that the first petitioner had created two new full-time posts in the business during the first three years of his stay, but his application for ILR was refused because he had not provided two full-time posts (or part-time equivalents) during the subsequent two years.

The petitioners sought judicial review of a decision, arguing that the terms of the relevant rule both before and after an amendment made in November 2014 required that the jobs have existed only during the first period of leave.

Counsel for the petitioner, Alan Caskie, submitted that “the period for which the previous leave was granted” and “that last grant of leave” both referred only to the initial period of leave, not the most recent period of leave (the extension period), and that the terms of the ILR application forms supported that proposition.

‘Failure to exercise discretion’

If the arguments about the construction of the rules and the transitional provision in the guidance were not correct, the petitioners argued that the “lack of clarity” in the rules, the guidance and the application forms was such that the respondent ought to have exercised her discretion to grant ILR notwithstanding that they did not meet the requirements for ILR within the rules, and the failure to do so was “unlawful”.

Counsel for the respondent, Chris Pirie, submitted that the respondent required to apply the rules in force at the time of her decision and the “proper construction” of the rule in force at the time was that the jobs must have existed for 12 months during both the initial period of leave and the extension period.

In any event, the amendment in November 2014 had not effected a change, but had been intended only to “improve the clarity of the rule”.

In relation to the petitioners’ fall-back position, it was argued that that the Home Secretary did not require to exercise a discretion where she had not been asked to, and accordingly there could be no question of her having failed unlawfully to do so; and that the material available to the first petitioner was not confusing.

‘Natural and ordinary meaning of the words used’

Refusing the petition, the judge said the rules were “not to be construed with all the strictness application to the construction of a statue or a statutory instrument” and that the role of the court was to interpret the rules by giving the words used their “natural and ordinary meaning”.

In a written opinion, Lady Carmichael said: “In the present case, the respondent correctly applied the rule and determined that the first petitioner was not entitled to ILR because the jobs had not existed for 12 months during the extension period. The correct construction of the rule is that the jobs required to exist during the period of leave chronologically most recent.

“The use of the word ‘last’ makes the point plain. The last grant of leave is just that – the one which is chronologically most recent. The plain meaning of the expression is such that it follows that I cannot accept the petitioners’ contention that it should be interpreted as meaning ‘the most recent category in which leave has been granted’.”

In relation to the question of whether the respondent erred by not exercising her discretion to grant leave outside the rules, the judge noted that the petitioners had never previously asked the respondent to do so.

She added: “The court’s function will usually be limited to reducing a decision that has been taken where a discretion has been found to have been exercised in an unlawful manner. It is normally outwith the proper scope of judicial review for the court to tell a public authority how it should exercise its discretion. While there may be cases where there could only be one possible outcome in the lawful exercise of a discretion…this is not such a case.

“I do not know in what terms the petitioners might seek to invoke the exercise of the respondent’s discretion, or what factors they might be able to pray in aid beyond those referred to in submissions in support of this petition. Despite what I accept are inadequacies in the forms, I do not consider that the information available to the first petitioner was so confusing that a failure on the part of the respondent to exercise discretion and grant ILR, in the absence of any invitation to do so, was unlawful.”