Bhandari & Anor v Secretary of State for the Home Department [2019] EWCA Civ 129 considered some fairly elderly Upper Tribunal case law on fairness and the Points Based System, and in particular a decision of Mr Justice Blake in Patel (Revocation of Sponsor Licence: Fairness: India) [2011] UKUT 211 (IAC). Unfortunately for fans of the Patel approach to fairness in immigration cases, the decision has not aged well in the eyes in the Court of Appeal.

Fairness and Patel

I look back on the tenure of Mr Justice Blake as President of the Upper Tribunal between 2010 and 2013 with some fondness. He was a very nice judge to appear before, and to my mind produced some helpful and liberal decisions. It felt like the Home Office were being held to account for some of the inherent unfairness in their administration. Indeed a cursory review of some of the reported decisions during Blake J’s time as President reveals a distinct focus on the concept of fairness.

The judgment in Patel was one such decision, the headnote stating

where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.

A reasonable opportunity, by analogy with the UK Border Agency’s policy on curtailment of leave, was said to be 60 days. Yet “fairness” as a concept in public law is far from straightforward, as will be seen from the decision in Bhandari.

The facts of Bhandari

The factual background to Bhandari is striking. The appellant had initially been granted leave to enter in October 2009 as a Tier 4 student. Unfortunately, her studies were repeatedly interrupted at various institutions:

• First Tasmac London College (went bankrupt)
• Then London School of Theology (sponsor licence revoked)
• Then King’s College London (Certificate of Acceptance for Studies was a fake)
• Finally, Grenville College (sponsor licence revoked)

Grenville College had its licence revoked by the Home Office in April 2014. The appellant was not informed of this until 13 March 2015 when the Home Office wrote to her, inviting her to obtain and submit a new CAS for study at a new institution within 60 days (in line with the decision in Patel).

You might be struck by how unlucky the appellant was, to have two sponsors lose their licences during her studies and to also be the victim of fraud. Yet there is a definite sense that sponsor licensing around this time, particularly for Tier 4 sponsors, was somewhat chaotic. The Home Office seemed to grant licences to a myriad of sponsoring organisations with limited diligence, and then pull the rug from under their students later with compliance action. Indeed there is an FOI release on the Home Office website which reveals there were 836 Tier 4 sponsors “whose status has appeared as “Revoked” at any time in the period 1 May 2010 – 7 October 2014”. Some of these may have been reinstated, but to my mind that is still a significant number of revocations, particularly when you consider the numbers of sponsored students might have been affected. It might be said that the Home Office did not do a fantastic job of regulation during the early years of the Points Based System.

The facts also demonstrate the glacial slowness of the Home Office and the complex legal positions that individuals can find themselves when “varying” extant applications and relying on section 3C of the Immigration Act 1971 to provide continuing permission to reside. Without getting further into the weeds, the case progressed through the First-tier and Upper Tribunals, eventually reaching the Court of Appeal and was heard on 31 January 2019 — five years since Ms Bhandari had applied for the Grenville College visa, and nearly a decade since she first entered to study in the UK.

The death knell for Patel fairness?

Before the Court of Appeal the appellant’s argument had crystallised into a single ground, namely that the Home Office:

created circumstances that prevented the Appellant obtaining a CAS (by delay in dealing with her application) and then unfairly failed to ameliorate those circumstances (by explaining the delay as requested) before refusing the Appellant’s application.

Unfortunately for the appellant this argument was robustly rejected. The first hurdle was that there was little evidence to support the argument that prospective sponsors had been reluctant to issue a CAS because of the delay in the decision-making, and that the appellant’s “own chequered educational history would in itself be a reason for refusing a CAS”.

The second was a more fundamental challenge to the concept of fairness as enunciated in Patel and relied upon by the appellant, namely the stark division in the eye of the court between “procedural fairness” and “substantive fairness”. An immigration decision needs to be in accordance with the Immigration Rules and otherwise in accordance with the law. However this does not create a free-standing right of substantive fairness. A decision which is not irrational, or flawed by error, may have serious consequences for an appellant, and may seem “unfair” to the man on the street, but that does not mean that it is a matter for the courts.

The reasoning around all this is quite esoteric. The main point to take away is that an argument based on Patel “rests on shaky legal foundations”. Lord Justice Hamblin referred to the decision in Pathan & Anor v Secretary of State for the Home Department [2018] EWCA Civ 2103, in which Singh LJ expressed “considerable reservations” about the correctness of the decision in Patel.

The court was not without sympathy for Ms Bhandari, who had been defrauded of £9,500 and had assisted police in their investigations into the CAS fraud. But a sympathetic set of circumstances does not amount to a basis in law to question the decision of a public authority.