Last week the Court of Appeal dealt with the issue of fairness and discretion in the context of the Points Based System. Specifically, it decided that such values take a firm second place to predictability. The case is R (Dharmeshkumar Bhupendrabhai Patel & Anor) v Secretary of State for the Home Department [2018] EWCA Civ 229.

No CAS, no notice, no leave

The appellant was a student who made an application for an extension of his Tier 4 leave on the basis of a Confirmation of Acceptance of Studies (CAS) issued by his college.

While this application was pending, and without giving any notice or reason, the college withdrew the CAS. Mr Patel only found out when his application for leave to remain was refused and, to date, he has no idea why the CAS was withdrawn because the college refused to give reasons.

To make matters worse, the college did not refund the £3,500 course fees. Eventually its sponsor licence was withdrawn and it has since closed down.

And no joy at the tribunal

At the First-tier Tribunal, Mr Patel argued that the Secretary of State had exercised her administrative powers unfairly because she did not contact the college to find out why the CAS was withdrawn. Had she done so, she would have realised that the withdrawal had no basis.

It was also argued that the Secretary of State should have given notice of the CAS withdrawal to the appellant, and 60 days’ leave to remain during which he could have found a new sponsor and submitted a new application. This is what happens in cases where the Secretary of State revokes the college’s sponsors licence, in line with Patel (revocation of sponsor licence – fairness) India [2011] UKUT 211 (IAC).

The tribunal dismissed the appeal, stating that the appellant’s grounds had already been considered and dismissed in EK (Ivory Coast) v Secretary of State for the Home Department [2014] EWCA Civ 1517.

In EK an application for leave to remain as a Tier 4 student had been refused because the college had withdrawn a CAS due to an administrative error. The court decided that there was no general public law duty of fairness under which the Secretary of State should have given notice of the withdrawal of the CAS to the student, or the opportunity to correct any error made by the college.

Secretary of State does not have to give notice of withdrawn CAS

Despite Mr Patel’s argument that EK had been wrongly decided, the Court of Appeal dismissed the case. Lord Justice Hickinbottom concluded that

where there is no valid CAS, the Secretary of State is entitled to refuse an application for leave dependent upon a valid CAS, without making any further enquiries, unless the refusal stemmed from her own actions or omissions.

It follows that the only cases where the Secretary of State is bound by the general public duty of fairness is when an applicant is left without CAS because the sponsor’s licence has been revoked (as in Patel).

The court held that in the present case the Secretary of State was not responsible for the CAS withdrawal and therefore “she was under no obligation to make any enquiries into why the CAS had been withdrawn or to notify the Applicant of any reasons that the college had given her. That was a matter strictly between the Applicant and the college”.

The reason for this:

Such a requirement would fundamentally undermine one of the legitimate aims of the scheme, […] of achieving predictability, administrative simplicity and certainty, even at the expense of discretion.

This is indeed a legitimate aim but, as many of us know, the Points Based System is neither predictable nor administratively simple. Without any space for discretion, the life and future of an applicant who is not at fault can be destroyed by an administrative error or a malicious action of a third party.

The lack of remedies in these circumstances strikes me as profoundly unfair. The lack of discretion when things go wrong is possibly too high a price to pay for the maintenance of a robust, objective system.