Reading the case of R (Prathipati) v Secretary of State for the Home Department (discretion – exceptional circumstances) [2018] UKUT 427 (IAC), it is impossible not to feel deep admiration for Ms Prathipati. The 28-year-old Indian citizen appeared without a lawyer before Mr Justice Kerr in her application for judicial review. Ms Prathipati was described as representing herself before the Upper Tribunal with “eloquence and courtesy”. This is no mean feat, particularly in such a dense technical case.

The judgment itself is exemplary, one of those clear and liberal decisions which strikes at the heart of our inflexible “computer says no” immigration system. Unfortunately there are some limits to the practical effect, since the case considered the old 28 day rule on overstaying. Kerr J concluded that the Home Office had a discretion to accept applications for leave to remain even if made beyond the 28-day period of overstaying. That is uncontroversial and in line with the relevant policy.

However the decision also highlighted that whilst the policy might require that evidence of exceptional circumstances justifying the overstaying was submitted with the application, to avoid unfairness and absurdity a sensible approach needed to be taken if the individual was not aware of the overstaying or exceptional circumstances when applying and therefore did not supply the evidence. As is detailed below, this emanated from a very fact-specific case.

Of further note are Kerr J’s comments on the efficacy of the administrative review process. They include the helpful observation that the more the remedy is circumscribed, the less useful it becomes and the greater the risk that flawed decisions are not  able to be properly reviewed. This finding will continue to have relevant to practitioners dealing with the administrative review system.

The severe consequences of overstaying

The core of the case concerned overstaying, when the teeth of the hostile environment start to bite. Whether a person has overstayed is often difficult to determine since section 3C of the Immigration Act 1971 can extend lawful status many years beyond any ostensible visa expiry date. It is also a status which the Home Office both criminalises and yet often actively promotes; for example when demanding a fresh human rights application is made as an overstayer as officials refuse to consider cases outside of their pre-determined silos.

The practical implications of missing a visa expiry date can be outrageously severe. Take the example of a Tier 2 migrant, who has lived in the UK for four years. They miss their visa expiry date and only discover the issue after 14 days. They lack a good reason: it was just a busy time in work, their toddler wasn’t sleeping, their mind was elsewhere (this example is close to home). They are barred from applying to extend their visa in the UK; the only alternative is to apply from their home country, a massive expense and extremely disruptive.

However that is not the end of the story, since a Tier 2 migrant is subject to a ‘cooling off’ period of one year before they can apply for entry clearance again (except if they earn over £159,600 — money talks). So, because of a simple human error the individual will have their life and employment here brought to an end, and be unable to return for one year. They will also have missed out on the chance to apply for indefinite leave to remain, and the clock on that will be reset to the beginning. Add in unhappy family members, young children at school, and furious employers. Yet this is our system.

The heartless among you might say; well, tough. But mistakes are a fact of life. Politicians, public figures, celebrities, and normal folk make them all the time, and so, ironically enough, does the Home Office.

Ms Prathipati’s case

At the time of Ms Prathipati’s application, the maximum period of overstaying permitted by the Immigration Rules was 28 days (it is now 14; more on which later). There was also published policy guidance which provided for “exceptional circumstances”. In exceptional circumstances, the policy allowed for a discretion to grant applications despite periods of overstaying that were longer than 28 days. It required evidence of such exceptional circumstances to be submitted with the application for leave.

Ms Prathipati’s issue was that she did not know she was an overstayer. She thought she had leave under section 3C, continued due to an ongoing appeal to the First-tier Tribunal in respect of an earlier decision. But unbeknownst to Ms Prathipati her 3C leave had been terminated in February 2015 by a decision of the tribunal refusing permission to appeal. She did not know because, it was said, her solicitors had not successfully notified the tribunal about a change of their client’s address.

Thus when Ms Prathipati came to make an application as the unmarried partner of a Tier 2 migrant in July 2015, she believed that she had recently withdrawn her appeal, it having not been decided. The Home Office knew the correct position, but kept schtum it might have drawn the facts to her attention.

Instead the caseworker simply refused the application, pointing out that Ms Prathipati was applying after overstaying for 130 days, and saying that there had been no exceptional circumstances put forward to justify any departure from the rule barring overstaying in excess of 28 days. The Home Office’s position was that regardless of whether or not Ms Prathipati was aware of her status, the exceptional circumstances policy required evidence to be submitted along with the application. Since it had not been, no question over the exercise of discretion arose.

The man on the Clapham omnibus might point out the obvious: how could Ms Prathipati be expected to address issues of which she had no knowledge?

Evidence of exceptional circumstances not necessarily required

For Mr Justice Kerr, it was highly relevant that the Home Office not only would have had notification on its systems that Ms Prathipati had been refused, it also had evidence that Ms Prathipati was unaware of this. Yet when meeting Ms Prathipati no mention was made of these facts. The first that Ms Prathipati learned of the issue was when she was “ambushed” with the tribunal’s decision in the letter of 21 August 2015 refusing her application. This was not an approach

consistent with ordinary standards of plain dealing and procedural fairness required under our administrative law.

Kerr J was also careful to approach guidance for what it is. It was clearly absurd that Ms Prathipati would be prevented from presenting the exceptional circumstances behind the period of overstaying, particularly since the Home Office had enough information to inform her of the issue at an earlier stage.

Therefore, whilst the guidance might well say that evidence of exceptional circumstances needed to be submitted with the application, if it was justifiably the case that the applicant did not provide this evidence because they were unaware that they were in fact an overstayer then the guidance needed to “be interpreted and applied in a manner that does not destroy the respondent’s ordinary obligation to observe procedural fairness”.

Interestingly Kerr J’s comment was that this approach would appertain if the applicant was ignorant of what constituted the exceptional circumstances. In this case the exceptional circumstance was that the applicant, through no fault of her own, was unaware that she was an overstayer by 130 days. I am struggling to think of any other situations in which someone could be ignorant of the exceptional circumstances (perhaps one in which the failings of a solicitor were not known to the applicant when they applied, but became known later?)

Another toothless administrative review

The judgment also considers the efficacy of the administrative review process. The Home Office argued that the rules on administrative review strictly defined the nature of a “case working error” and that according to that definition no such error arose in Ms Prathipati’s case. The court gave this argument short shrift, with Kerr J making the important point that the more narrowly this remedy is circumscribed, the more likely that errors in decision-making will not be fully addressed by the review process and increase the possibility of judicial review.

Here, the reviewer was presented with a clear and cogent explanation of what had gone wrong but, instead of correcting the errors, compounded them.

Administrative review was intended to be a replacement for an appeal to a tribunal. Yet the rules which govern the review process seek to restrict and constrain the grounds for a challenge. If sound public law challenges to a decision are not able to be ventilated and properly considered through administrative review, this increases the likelihood of a subsequent application for judicial review.

More cases like this likely unless policy allows discretion to waive overstaying

There is an important footnote to this decision concerning the change in the rules which reduced the acceptable period of overstaying to 14 days and made it harder to qualify for this reduced grace period.

The rules now require, in contrast to the old rule that Ms Prathipati’s case was concerned with, that an application is made within 14 days of the applicant’s leave expiring and that there is a good reason for the application being late. If an applicant is seeking to make a second application, following an application which was made in time, then the good reason requirement does not apply (thus legitimising overstaying despite such conduct remaining a criminal offence). For a good explanation of these changes see Colin’s post on Overstaying and applying for further leave.

However what of the policy? The latest version, entitled Applications from overstayers (non family routes) seems to remove completely any discretion to waive overstaying beyond 14 days. For a ‘non-family route’ applicant; which essentially covers all work and study routes, there is no discretion whatsoever beyond 14 days. Indeed if you simply miss the expiry date of your visa, getting an application in within 14 days might not even be sufficient, since you will need a good reason too.

The significance of the ‘non-family routes’ aspect is that under the rules relating to family members of British citizens and settled individuals, namely Appendix FM, the decision-maker must consider Paragraph EX-1 if there is overstaying beyond 14 days. An applicant would therefore need to show “insurmountable obstacles” to family life continuing abroad, and therefore any justification for the overstaying is rendered irrelevant. Succeeding under paragraph EX-1 would then place the applicant on a ten-year route to settlement rather than five.

The new system is likely to be a fertile ground for judicial review, precisely because it is so draconian. Currently, even with the most compelling excuse imaginable, for example a serious accident or bereavement, there is no discretion, within policy or otherwise, to waive overstaying beyond 14 days for work and study routes. Even if the Home Office exercises discretion in compelling cases of its own accord, without a structured policy it is impossible to ensure that any discretion is being exercised fairly.

All of which massively increases the prospect of further judicial review challenges, and further valuable court time grappling with the kaleidoscope of rule changes and administrative unfairness.