JR-2023-LON-002366
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The decision
JR-2023-LON-002366
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
KINGSHIELD ADEMOLA OLADEJO-OLAGBOYE
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Canavan
HAVING considered all documents lodged and having heard Mr M. Adophy of counsel, instructed by Atlantic Solicitors, for the applicant and Mr Z. Malik KC of counsel, instructed by GLD, for the respondent at a hearing on 12 June 2024
IT IS ORDERED THAT:
1. The application for judicial review is DISMISSED for the reasons given in the attached judgment.
2. The applicant’s costs submissions verge on an improper submission to the court, again, making a general assertion that it would be ‘unfair’ for the applicant to pay the respondent’s costs because of an error made by his student sponsor (but not the respondent). The Upper Tribunal pointed out that there was also an underlying error made by the applicant, who did not seem to have checked that the requirements were met before making the application [49]. Those representing the applicant were under a duty to continue to review the merits of the case which, even if they had not properly understood the scheme of Appendix Graduate, should have become clear by the time the respondent filed his Detailed Grounds of Defence. No proper basis has been given for making any other order than the usual order in a case where the respondent has been wholly successful in defending the claim: see M v Croydon [2012] EWCA Civ 595.
3. The applicant shall pay the respondent’s reasonable costs, to be assessed on a standard basis if not agreed.
4. No application for permission to appeal was made. Permission to appeal to the Court of Appeal is refused because it is not arguable that the Upper Tribunal decision involves an error of law.
Signed: M.Canavan
Upper Tribunal Judge Canavan
Dated: 24 June 2024
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 26/06/2024
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2023-LON-002366
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
24 June 2024
Before:
UPPER TRIBUNAL JUDGE CANAVAN
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
KINGSHIELD ADEMOLA OLADEJO-OLAGBOYE
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr M. Adophy
(instructed by Atlantic Solicitors), for the applicant
Mr Z. Malik KC
(instructed by the Government Legal Department) for the respondent
Hearing date: 12 June 2024
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Canavan:
Background
1. The applicant applies for judicial review of the respondent’s decision dated 14 June 2023 to refuse permission to stay under Appendix Graduate and the associated Administrative Review decision dated 04 August 2023.
2. The respondent’s records state that the applicant was granted entry clearance as a Student on 22 February 2022, which was valid until 15 May 2023. On 07 May 2023 the applicant applied for permission to stay as a Graduate.
Refusal of permission to stay
3. In the decision dated 14 June 2023 the respondent concluded that the applicant did not meet the requirements of paragraphs 4.2 and 4.3 of Appendix Graduate, which required him to successfully complete his course of study (MSC International Project Management). The student sponsor had not notified the respondent of the successful completion of the course. As such, the respondent contacted the sponsor on 18 May 2023. The student sponsor informed the respondent that the applicant had completed the programme. The letter went on to say: ‘from our Student record system I can see that this student has tuition fees outstanding, so account is marked in red, therefore we cannot confirm the award status yet.’ In light of this information the respondent was not satisfied that the applicant had successfully completed the course within the meaning required by the immigration rules.
Refusal of Administrative Review
4. On 16 June 2023 the applicant applied for Administrative Review of the decision. The respondent refused the application in a decision dated 04 August 2023. The respondent noted the applicant’s explanation that the student sponsor had failed to apply a scholarship of £1,500 to his account when calculating the outstanding course fees. The respondent also noted that the applicant had provided evidence to show that the scholarship had now been applied and that the sponsor had provided notification of successful completion of the course. The respondent confirmed that the sponsor had provided confirmation that the course was completed on 22 June 2023. The respondent noted that this was a matter that he needed to take up with the sponsor. The purpose of administrative review was limited. The respondent concluded that there were no case working errors in the original decision.
Application for judicial review
5. The applicant filed an application for permission to bring judicial review proceedings on 03 November 2023. The application was not made promptly and was filed the day before the long stop period of three months.
6. Upper Tribunal Judge Macleman refused permission on the papers in an order sent on 06 February 2024. Upper Tribunal Judge Bruce took a different view following an oral application for permission, which was granted following a hearing on 14 March 2024. She gave the following reasons for granting permission:
‘GR 4.2 of Appendix: Graduate requires that an applicant show that he has successfully completed the course. The Respondent has in this decision interpreted that to read “successfully completed the course and received a degree certificate”. As GR 5.1 makes clear, there is a distinction to be drawn between those two matters. One can have completed the course but not necessarily yet be in possession of the award. The grounds are arguable and permission is granted.’
7. At the hearing, both parties agreed that the wording quoted in the grant of permission appears to have contained an error because the decision letter did not use the wording ‘and received a degree certificate’.
The Applicant’s case
8. The applicant’s case has not been well prepared or clearly argued by his legal representatives. The bundle was initially filed in a number of different electronic pieces. After a direction to file it as a single document, it failed to include some relevant documents such as the Acknowledgment of Service, Summary Grounds of Defence, a copy of the original application for permission to stay, or the application for Administrative Review. Further directions needed to be made for missing documents to be produced. Further documents, which did not appear to be before the respondent at the date of the decisions were also included without an application to adduce them.
9. The preparation of this case failed to comply with the Upper Tribunal Practice Direction on Electronic filing, the Upper Tribunal guidance on CE-File and electronic bundles, or the directions made with the grant of permission. Atlantic Solicitors should consider this guidance and must comply with it in any future applications.
10. The pleadings made with the original application have shifted and changed in substance and emphasis during the course of the application, the renewal application and then the final skeleton argument prepared for this hearing.
11. The original grounds made generalised submissions. If any public law issues could be discerned from them they appear to have made the following broad assertions:
(i) The decision was procedurally unfair
It was not the applicant’s fault that the university had not updated their fee records to include funds from a scholarship. As a result the student sponsor did not notify the respondent of the successful completion of the course. It was asserted that the requirements of paragraphs GR 4.2 and GR 4.3 ‘had been met’ although the grounds failed to particularise how or why that assertion was made out. It was also argued that the respondent had failed to properly evaluate the evidence although the grounds failed to identify what evidence was before the respondent or why it would have made any material difference to the outcome.
(ii) The decision was unlawful
The respondent had an opportunity to ‘rectify the error’ in the administrative review once the position had been clarified but failed to do so. In fact, this appears to be an assertion, although it is not particularised as such, that the respondent failed to consider whether it might be appropriate to exercise discretion.
12. The renewal grounds repeated the same points but added that the Administrative Review ‘had the opportunity to rectify the situation’. It was asserted that the ‘factual error’ (which appears to be a reference to the fact that he had, as a matter of fact, completed the course) rendered the original decision ‘wrong’. It was further asserted that ‘the prescriptive nature of Appendix (sic) does not displace the rules of fairness and or proportionality’.
13. The skeleton argument prepared for the renewed oral application before Upper Tribunal Judge Bruce made further generalised submissions, purporting to identify three issues for determination. The arguments were somewhat confused, but when read as a whole continued to make the two broad assertions that (i) the decision was ‘unfair’ because the error was not made by the applicant; and (ii) discretion should have been exercised in his favour.
14. The further skeleton argument prepared for this hearing now seeks to identify five issues for determination that bear little resemblance to the case as originally pleaded although I acknowledge that some additional points might have been drawn from the grant of permission. The shifting sands of argument now seek to make submissions on the following issues.
(i) Whether paragraphs GR 4.2 and GR 4.3 of Appendix Graduate can ‘be properly described as being “prescriptive”.
(ii) Whether, given that it has been suggested that GR 4.2-4.3 and 5.1-5.4 are freestanding, whether those are ‘separate and distinct means whereby an applicant can succeed in an application for leave’ under Appendix Graduate.
(iii) The decision was procedurally unfair because it was ‘arrived at in error’ or in the alternative the respondent is ‘perpetuating the error’ by refusing to ‘revisit or rescind its decision’.
(iv) Whether the decision can be maintained ‘despite the incorrect factual basis upon which it was made’.
(v) Whether the respondent considered and applied the immigration rules ‘properly adequately and proportionately’.
The Respondent’s case
15. In response, the respondent wisely did not seek to engage with the vacillating arguments presented on behalf of the applicant. Instead, the respondent explains why the application was decided in accordance with the relevant immigration rules.
16. The respondent outlines the requirements of the immigration rules and submits that the ‘Successful completion requirement’, the ‘Qualification requirement’ and the ‘Study in the UK requirement’ must all be met before permission to stay will be granted as a Graduate.
17. The ‘Successful completion requirement’ itself sets out three requirements that must be met. One of those requirements is that the applicant must have ‘successfully completed’ the course (GR 4.2). Another is that the sponsor must have notified the Home Office by the date of the application that the applicant has completed the course (GR 4.3).
18. The respondent followed the caseworker guidance and contacted the student sponsor to find out whether they could confirm that the course of study had been successfully completed. On the information provided by the student sponsor, it was open to the respondent to refuse the application on the ground that the applicant did not meet the requirements of GR 4.2 and GR 4.3 of Appendix Graduate.
19. The respondent argues that there is no freestanding doctrine of substantive unfairness in public law. In any event, there was no procedural unfairness because it was open to the respondent to consider the application based on the information that was before him at the time.
Legal Framework
20. Section 3(2) of the Immigration Act 1971 (‘IA 1971’) provides for the Secretary of State to make rules as to the practice to be followed in regulating the entry into and stay in the United Kingdom.
21. Appendix Graduate was introduced by way of the Statement of Changes to the immigration rules HC 1248 on 01 July 2021. The Explanatory Memorandum to HC 1248 stated the following about the intentions of the scheme:
7.2 The Graduate route is a new route for international students who have successfully completed an eligible course as a student at a student sponsor which is a higher education provider with a track record of compliance. It improves the UK’s offer to international students considering study here, by giving those who successfully complete an eligible course a further two years (three years for those being awarded doctorates) in the UK, during which they can work or look for work at any skill level.
…..
7.5 Applicants must have successfully completed the course of study undertaken during their most recent grant of permission as a Student (which includes permission under Tier 4), and their sponsor must notify the Home Office of this before the application is made. The course must have led to the award of a degree at UK bachelor’s or postgraduate level, or a professional course requiring study at UK bachelor’s degree level or above, in a profession with reserved activities that is regulated by UK law or UK public authority. Changes to a course that are permitted under the Student route will not disqualify an applicant from being granted permission, provided the qualification gained still meets the qualification requirement. …
7.6 Study on an eligible course must have taken place in the UK for a minimum period which is based on the total length of the course. For those who have completed a course lasting 12 months or less, the whole of the course must have been studied in the UK. Those on courses lasting longer than 12 months will need to have been granted permission for at least 12 months on the Student route and have spent that time studying in the UK.
22. The preamble to Appendix Graduate states the following about the intended purpose of the route:
‘This route is for a Student in the UK who wants to work, or look for work, following the successful completion of an eligible course of study at UK bachelor’s degree-level or above. The study must have been with a higher education provider with a track record of compliance.’
23. The Appendix then sets out a series of requirements for permission to stay to be granted. These include requirements for ‘Validity’, ‘Suitability’, ‘Eligibility’, ‘Successful Completion’, ‘Qualification’. ‘Study in the UK’ and provisions relating to dependents.
24. The ‘Eligibility’ requirement under Appendix Graduate states that an applicant must be awarded a total of 70 points based on ‘Successful Course Completion’. The relevant requirements to be met are:
(i) Successful completion requirement
(ii) Qualification requirement
(iii) Study in the UK requirement
25. In this case, the only reason for refusal was that the applicant did not meet the first of those requirements, the ‘Successful Completion requirement’. The relevant part of Appendix Graduate relating to that requirement states:
GR 4.1. The applicant must have last been sponsored by a Student sponsor which is a higher education provider with a track record of compliance on the date of application.
GR 4.2. The applicant must have successfully completed the course of study which was undertaken during their last grant of permission to study on the Student route (where the applicant was allowed to change their course of study without applying for further permission as a Student, this requirement only applies to the course to which they changed).
GR 4.3. The student sponsor must have notified the Home Office, by the date of application, that the applicant has successfully completed the course of study in GR 4.2.
26. Given the terms of the grant of permission, parts of the ‘Qualification’ requirement that might need to be considered are:
GR 5.1. The applicant will meet the qualification requirement if they have successfully completed a course of study for which they have been or will be awarded a UK bachelor’s degree, a UK postgraduate degree, or successfully completed a relevant qualification listed in GR 5.2.
…..
GR 5.4 The qualification must have been gained during the last grant of permission to study as a Student, or in the period of permission immediately before the applicant’s last grant of permission, if the last grant of permission was to undertake a role as a Student Union Sabbatical Officer.
27. Appendix Graduate goes on to state the following about the ‘Decision on application as a Graduate’:
GR 7.1. If the decision maker is satisfied that all the suitability and eligibility requirements for a Graduate are met the application will be granted, otherwise the application will be refused.
GR 7.2. If the application is refused, the person can apply for an Administrative Review under Appendix AR: Administrative Review.
28. The Interpretation section in the introduction to the immigration rules defines the term ‘Successfully Completed’ as:
“Successfully completed” means the Student or Child Student has completed their course and been assessed by their sponsor, and has been or will be awarded, a qualification that is: [my emphases]
(a) for the course of study for which their Confirmation of Acceptance for Studies was assigned; or
(b) a degree at either UK Bachelor’s degree level or UK postgraduate degree level, as part of an integrated programme for which their Confirmation of Acceptance for Studies was assigned; or
(c) for the course of study with their student sponsor to which they were allowed to change without applying for further permission on the Student route.
29. The respondent’s guidance to caseworkers considering applications under Appendix Graduate is ‘Graduate route’ (Version 2.0) (05 November 2021) says the following about the ‘Successful completion requirement’ (pg.8).
Successful completion requirement
Caseworkers must check the Register of Student sponsors to ensure that the Student Sponsor is a higher education provider with a track record of compliance on the date of application. Sponsors which are HEPs are listed as ‘Student sponsor – track record’ on the Register of Student Sponsors.
The caseworker must check the applicant has successfully completed the course of study which was undertaken during their last grant of permission to study on the Student route, or their last permission to study prior to taking up an Student Union Sabbatical Office (SUSO) role on the Student route. Students who undertake two consecutive periods as a Student Union Sabbatical Officer after their studies will still be able to meet this requirement. …..
Sponsor notification
The Student Sponsor must have notified the Home Office, by the date of application, that the applicant has successfully completed the course of study. Sponsors will normally do this by way of bulk upload. If sponsors are unable to make the notification via bulk upload, they must use the agreed exceptions process.
If a notification has not been received from the Student Sponsor, but the CAS shows that the applicant had been studying a qualifying qualification, the caseworker must not refuse the application if it would otherwise be granted. Instead, the caseworker must contact the Sponsor asking for confirmation that the student has successfully completed the course of study.
Decision and reasons
30. I have concluded that it is not a proportionate use of court time to attempt to address each of the generalised and shifting arguments put forward on behalf of the applicant, some of which appear to have been added without any understanding of the need for procedural rigour in judicial review proceedings, or it seems, a basic understanding of the scheme of Appendix Graduate: see R (Talpada) v SSHD [2018] EWCA Civ 841 and R (Spahiu) v SSHD [2018] EWCA Civ 2604; [2019] Imm AR 524.
31. It is more helpful to consider whether the decision that was made on 14 June 2023 was a lawful and rational decision within the context of the relevant immigration rules.
32. The starting point is that the respondent has power to make rules as to the practice to be followed in regulating the entry into and stay in the United Kingdom.
33. This case concerns an application for permission to stay under Appendix Graduate, which unfolds in a pyramidical way into sub-requirements. The way the rules are set out online does not help in understanding the structure of the scheme, but I will attempt to explain it here.
34. The section relating to ‘Decision on the application’ makes clear at paragraph GR 7.1 that an applicant must meet all the ‘Suitability’ and ‘Eligibility’ requirements before permission to stay will be granted.
35. The respondent refused the application on the ground that the applicant did not meet all the ‘Eligibility’ requirements. The applicant was required to show that he met all three of the ‘Eligibility’ requirements before 70 points could be awarded for ‘Successful Course Completion’.
36. The respondent refused the application on the ground that the applicant did not meet the ‘Successful Completion requirement’. No issue was raised about the ‘Qualification requirement’ or the ‘Study in the UK requirement’.
37. The applicant was required to show three mandatory elements, denoted by the word ‘must’, to meet the ‘Successful Completion requirement’.
(i) The applicant needed to show that he was last sponsored by a relevant Student Sponsor (GR 4.1). No issue was raised in relation to this requirement.
(ii) The applicant needed to show that he had ‘successfully completed’ the course of study (GR 4.2). The respondent concluded that he did not meet this requirement.
(iii) The applicant also needed to show that the Student Sponsor had notified the Home Office by the date of application that he had ‘successfully completed’ the course (GR 4.3). The respondent concluded that he did not meet this requirement.
38. The meaning of the term ‘successfully completed’ the course of study is defined in the Interpretation section of the immigration rules. That definition also included three elements for the purpose of interpreting the requirement of paragraphs GR 4.2 and GR 4.3 of Appendix Graduate:
(i) The applicant needed to have completed the course; and
(ii) The course needed to have ‘been assessed’ by the sponsor; and
(iii) He ‘has been or will be’ awarded one of the relevant qualifications.
39. The only reason given for refusing the application was the fact that the applicant had failed to show that his Student Sponsor had notified the Home Office that he had ‘successfully completed’ the course by the date of the application.
40. At the date of the application the evidence suggests that it was more likely than not that the applicant satisfied the first two elements of the definition of ‘successfully completed’ contained in the immigration rules i.e. (i) ‘has completed their course’; and (ii) ‘has been assessed by their sponsor’ (see [28] above).
41. When enquiries were made with the Student Sponsor, they were able to confirm that the applicant had completed the programme within the general sense of the word. It is reasonable to infer from the wording of the decision letter that that they had assessed the applicant to have completed all the relevant parts of the course. However, it seems clear from the last sentence of the relevant paragraph of the decision letter that the Student Sponsor could not ‘confirm the award status yet’ because of the fees issue.
42. For this reason, I conclude that the information provided by the Student Sponsor to the respondent could not be considered as notification that the applicant had ‘successfully completed’ the course within the full meaning of the term as defined in the Interpretation section of the immigration rules and as used in GR 4.2 and GR 4.3 of Appendix Graduate. Because of the difficulty with the fees issue, the Student Sponsor was not able to notify the respondent that the applicant met the last requirement of the definition i.e. that he ‘has been or will be awarded a [relevant] qualification’.
43. The oral arguments put on behalf of the applicant at the hearing were as unfocused as the written pleadings. No proper public law grounds were articulated beyond a general submission that it was ‘unfair’ that the applicant did not meet the requirement because of an error on the part of the Student Sponsor and that the respondent had chosen not to exercise discretion in the Administrative Review.
44. The submission made about paragraph GR 5.1 being ‘a separate and distinct’ means of qualifying under the rules disclosed a lack of understanding of the scheme. I accept that the ‘Qualification’ requirement contained in paragraph GR 5.1 uses similar wording to paragraphs GR 4.2 and GR 4.3 where it refers to the applicant needing to have ‘successfully completed a course of study for which they have been or will be awarded … a relevant qualification’. The definition of ‘successfully completed’ contained in the Interpretation section is equally likely to apply to that aspect of the rules. To this extent there appears to be some tension between the fact that the respondent did not dispute that the applicant met the requirement of paragraph GR 5.1 but did dispute whether he met the requirement of paragraph GR 4.2.
45. However, the wording of those paragraphs can be distinguished from the additional requirement contained in paragraph GR 4.3 for the Student Sponsor to notify the respondent that the course had been ‘successfully completed’. For the reasons already given at [42] above, the Student Sponsor did not notify the respondent that the applicant had ‘successfully completed’ the course within the full meaning required by the immigration rules.
46. I bear in mind that the applicant made the original application himself and is unlikely to have any specialist knowledge of immigration law. While appreciating that many parts of the immigration rules are now very complicated, the rules in relation to this category are, in comparison to others, easier to understand. Appendix Graduate is relatively short and when read as a whole the requirements are clear (as outlined above).
47. The onus was on the applicant to show that he met all three of the ‘Eligibility’ requirements of the immigration rules before permission to stay would be granted.
48. Although this application seems to have been treated like an appeal, with his representatives adducing further evidence that was not before the respondent without permission, nothing in that evidence seems to suggest that the applicant checked with his Student Sponsor that notification of completion of the course had been sent to the Home Office for the purpose of GR 4.3 before he made the application for permission to stay on 07 May 2023. Had the applicant made checks in good time, the error relating to the recording of the scholarship payment in the fees account might have been rectified in time for him to make the application.
49. What is notable is that any errors that were made in relation to this application were either made by the applicant (in failing to check in good time with the Student Sponsor that the requirement to notify the Home Office had been met) or the Student Sponsor (in not having recorded the fees correctly allowing them to then notify the Home Office of the award status). Nowhere is any public law error on the part of the respondent identified. It is accepted that at the date of the application, which is the relevant date for the purpose of paragraph GR 4.3, the Student Sponsor had not, as a matter of fact, notified the Home Office of the completion of the course within the full meaning required under paragraph GR 4.3 of Appendix Graduate.
50. I have sympathy for the situation that the applicant finds himself in, but this is a judicial process in which the court only has power to make an order if a public law error is identified that might justify making an order to quash (set aside) the respondent’s decision.
51. It is understandable that the applicant might feel that the situation gives rise to a feeling of unfairness in the general sense of the word. However, no unfairness in the legal sense of the word has been identified. There is no principle of substantive unfairness in public law: see Gallaher Group Ltd v Competition and Markets Authority [2018] UKSC 25.
52. The applicant attempted to explain the situation when he applied for Administrative Review. However, the scope of an Administrative Review is limited in nature. Although the respondent always has power to exercise discretion, no specific request appears to have been made in the grounds for Administrative Review to ask the respondent to do so. It is not incumbent on the respondent to consider whether to exercise discretion when no formal request has been made.
53. It is insufficient to argue on behalf of the applicant that the decision was ‘unfair’ in a general sense of the word because the rule are ‘prescriptive’. That is the purpose of a rule. They are rules governing the practice to be followed in regulating the entry into and stay in the United Kingdom. There is no legal concept of ‘near miss’.
54. Once the applicant had explained the situation, this could be seen as a rather rigid decision, but it was open to the respondent to refuse the application because the applicant did not meet all of the ‘Eligibility’ requirements, and in particular, with reference to paragraph GR 4.3. Given the very limited nature of an Administrative Review, which is restricted to considering caseworking errors made by the original decision maker (when no such errors have been identified in this case) it cannot be said that the failure to exercise discretion was outside a range of reasonable responses to the limited information provided by the applicant.
55. For the reasons given above, I conclude that the decisions dated 14 June 2023 and 04 August 2023 disclose no public law errors.
56. The application for judicial review is dismissed.
Post-script
57. Since the date of the decision, more detailed information is now available, which includes evidence to show that (i) through no fault of the applicant, an error was made by the Student Sponsor as to the outstanding fees which led to them, wrongly, not to confirm the award status when checks were made by the respondent; and (ii) further evidence to show that the issue was resolved and the award was granted in July 2023.
58. Although the applicant has failed to show that the decisions to refuse permission to stay were unlawful, it would still be open to the respondent to consider whether it might be appropriate to exercise discretion in light of the more detailed information that is now before him. But for the error made by the Student Sponsor, it is likely that the applicant would have met the requirements of the immigration rules.
59. It is said that the scheme is designed to improve the United Kingdom’s offer to international students, such as the applicant, considering studying here by giving those who successfully complete an eligible course an opportunity to stay for another two years, during which time they can work or look for work at any skill level. The respondent might want to consider whether, if the scheme is applied too rigidly, it might have the opposite effect of deterring international students from choosing to study in the United Kingdom.
60. Whether discretion is exercised in light of the more detailed information now available is a matter for the respondent. Nothing in this decision mandates a particular course of action.
~~~~0~~~~
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
KINGSHIELD ADEMOLA OLADEJO-OLAGBOYE
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Canavan
HAVING considered all documents lodged and having heard Mr M. Adophy of counsel, instructed by Atlantic Solicitors, for the applicant and Mr Z. Malik KC of counsel, instructed by GLD, for the respondent at a hearing on 12 June 2024
IT IS ORDERED THAT:
1. The application for judicial review is DISMISSED for the reasons given in the attached judgment.
2. The applicant’s costs submissions verge on an improper submission to the court, again, making a general assertion that it would be ‘unfair’ for the applicant to pay the respondent’s costs because of an error made by his student sponsor (but not the respondent). The Upper Tribunal pointed out that there was also an underlying error made by the applicant, who did not seem to have checked that the requirements were met before making the application [49]. Those representing the applicant were under a duty to continue to review the merits of the case which, even if they had not properly understood the scheme of Appendix Graduate, should have become clear by the time the respondent filed his Detailed Grounds of Defence. No proper basis has been given for making any other order than the usual order in a case where the respondent has been wholly successful in defending the claim: see M v Croydon [2012] EWCA Civ 595.
3. The applicant shall pay the respondent’s reasonable costs, to be assessed on a standard basis if not agreed.
4. No application for permission to appeal was made. Permission to appeal to the Court of Appeal is refused because it is not arguable that the Upper Tribunal decision involves an error of law.
Signed: M.Canavan
Upper Tribunal Judge Canavan
Dated: 24 June 2024
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 26/06/2024
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2023-LON-002366
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
24 June 2024
Before:
UPPER TRIBUNAL JUDGE CANAVAN
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
KINGSHIELD ADEMOLA OLADEJO-OLAGBOYE
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr M. Adophy
(instructed by Atlantic Solicitors), for the applicant
Mr Z. Malik KC
(instructed by the Government Legal Department) for the respondent
Hearing date: 12 June 2024
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J U D G M E N T
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Judge Canavan:
Background
1. The applicant applies for judicial review of the respondent’s decision dated 14 June 2023 to refuse permission to stay under Appendix Graduate and the associated Administrative Review decision dated 04 August 2023.
2. The respondent’s records state that the applicant was granted entry clearance as a Student on 22 February 2022, which was valid until 15 May 2023. On 07 May 2023 the applicant applied for permission to stay as a Graduate.
Refusal of permission to stay
3. In the decision dated 14 June 2023 the respondent concluded that the applicant did not meet the requirements of paragraphs 4.2 and 4.3 of Appendix Graduate, which required him to successfully complete his course of study (MSC International Project Management). The student sponsor had not notified the respondent of the successful completion of the course. As such, the respondent contacted the sponsor on 18 May 2023. The student sponsor informed the respondent that the applicant had completed the programme. The letter went on to say: ‘from our Student record system I can see that this student has tuition fees outstanding, so account is marked in red, therefore we cannot confirm the award status yet.’ In light of this information the respondent was not satisfied that the applicant had successfully completed the course within the meaning required by the immigration rules.
Refusal of Administrative Review
4. On 16 June 2023 the applicant applied for Administrative Review of the decision. The respondent refused the application in a decision dated 04 August 2023. The respondent noted the applicant’s explanation that the student sponsor had failed to apply a scholarship of £1,500 to his account when calculating the outstanding course fees. The respondent also noted that the applicant had provided evidence to show that the scholarship had now been applied and that the sponsor had provided notification of successful completion of the course. The respondent confirmed that the sponsor had provided confirmation that the course was completed on 22 June 2023. The respondent noted that this was a matter that he needed to take up with the sponsor. The purpose of administrative review was limited. The respondent concluded that there were no case working errors in the original decision.
Application for judicial review
5. The applicant filed an application for permission to bring judicial review proceedings on 03 November 2023. The application was not made promptly and was filed the day before the long stop period of three months.
6. Upper Tribunal Judge Macleman refused permission on the papers in an order sent on 06 February 2024. Upper Tribunal Judge Bruce took a different view following an oral application for permission, which was granted following a hearing on 14 March 2024. She gave the following reasons for granting permission:
‘GR 4.2 of Appendix: Graduate requires that an applicant show that he has successfully completed the course. The Respondent has in this decision interpreted that to read “successfully completed the course and received a degree certificate”. As GR 5.1 makes clear, there is a distinction to be drawn between those two matters. One can have completed the course but not necessarily yet be in possession of the award. The grounds are arguable and permission is granted.’
7. At the hearing, both parties agreed that the wording quoted in the grant of permission appears to have contained an error because the decision letter did not use the wording ‘and received a degree certificate’.
The Applicant’s case
8. The applicant’s case has not been well prepared or clearly argued by his legal representatives. The bundle was initially filed in a number of different electronic pieces. After a direction to file it as a single document, it failed to include some relevant documents such as the Acknowledgment of Service, Summary Grounds of Defence, a copy of the original application for permission to stay, or the application for Administrative Review. Further directions needed to be made for missing documents to be produced. Further documents, which did not appear to be before the respondent at the date of the decisions were also included without an application to adduce them.
9. The preparation of this case failed to comply with the Upper Tribunal Practice Direction on Electronic filing, the Upper Tribunal guidance on CE-File and electronic bundles, or the directions made with the grant of permission. Atlantic Solicitors should consider this guidance and must comply with it in any future applications.
10. The pleadings made with the original application have shifted and changed in substance and emphasis during the course of the application, the renewal application and then the final skeleton argument prepared for this hearing.
11. The original grounds made generalised submissions. If any public law issues could be discerned from them they appear to have made the following broad assertions:
(i) The decision was procedurally unfair
It was not the applicant’s fault that the university had not updated their fee records to include funds from a scholarship. As a result the student sponsor did not notify the respondent of the successful completion of the course. It was asserted that the requirements of paragraphs GR 4.2 and GR 4.3 ‘had been met’ although the grounds failed to particularise how or why that assertion was made out. It was also argued that the respondent had failed to properly evaluate the evidence although the grounds failed to identify what evidence was before the respondent or why it would have made any material difference to the outcome.
(ii) The decision was unlawful
The respondent had an opportunity to ‘rectify the error’ in the administrative review once the position had been clarified but failed to do so. In fact, this appears to be an assertion, although it is not particularised as such, that the respondent failed to consider whether it might be appropriate to exercise discretion.
12. The renewal grounds repeated the same points but added that the Administrative Review ‘had the opportunity to rectify the situation’. It was asserted that the ‘factual error’ (which appears to be a reference to the fact that he had, as a matter of fact, completed the course) rendered the original decision ‘wrong’. It was further asserted that ‘the prescriptive nature of Appendix (sic) does not displace the rules of fairness and or proportionality’.
13. The skeleton argument prepared for the renewed oral application before Upper Tribunal Judge Bruce made further generalised submissions, purporting to identify three issues for determination. The arguments were somewhat confused, but when read as a whole continued to make the two broad assertions that (i) the decision was ‘unfair’ because the error was not made by the applicant; and (ii) discretion should have been exercised in his favour.
14. The further skeleton argument prepared for this hearing now seeks to identify five issues for determination that bear little resemblance to the case as originally pleaded although I acknowledge that some additional points might have been drawn from the grant of permission. The shifting sands of argument now seek to make submissions on the following issues.
(i) Whether paragraphs GR 4.2 and GR 4.3 of Appendix Graduate can ‘be properly described as being “prescriptive”.
(ii) Whether, given that it has been suggested that GR 4.2-4.3 and 5.1-5.4 are freestanding, whether those are ‘separate and distinct means whereby an applicant can succeed in an application for leave’ under Appendix Graduate.
(iii) The decision was procedurally unfair because it was ‘arrived at in error’ or in the alternative the respondent is ‘perpetuating the error’ by refusing to ‘revisit or rescind its decision’.
(iv) Whether the decision can be maintained ‘despite the incorrect factual basis upon which it was made’.
(v) Whether the respondent considered and applied the immigration rules ‘properly adequately and proportionately’.
The Respondent’s case
15. In response, the respondent wisely did not seek to engage with the vacillating arguments presented on behalf of the applicant. Instead, the respondent explains why the application was decided in accordance with the relevant immigration rules.
16. The respondent outlines the requirements of the immigration rules and submits that the ‘Successful completion requirement’, the ‘Qualification requirement’ and the ‘Study in the UK requirement’ must all be met before permission to stay will be granted as a Graduate.
17. The ‘Successful completion requirement’ itself sets out three requirements that must be met. One of those requirements is that the applicant must have ‘successfully completed’ the course (GR 4.2). Another is that the sponsor must have notified the Home Office by the date of the application that the applicant has completed the course (GR 4.3).
18. The respondent followed the caseworker guidance and contacted the student sponsor to find out whether they could confirm that the course of study had been successfully completed. On the information provided by the student sponsor, it was open to the respondent to refuse the application on the ground that the applicant did not meet the requirements of GR 4.2 and GR 4.3 of Appendix Graduate.
19. The respondent argues that there is no freestanding doctrine of substantive unfairness in public law. In any event, there was no procedural unfairness because it was open to the respondent to consider the application based on the information that was before him at the time.
Legal Framework
20. Section 3(2) of the Immigration Act 1971 (‘IA 1971’) provides for the Secretary of State to make rules as to the practice to be followed in regulating the entry into and stay in the United Kingdom.
21. Appendix Graduate was introduced by way of the Statement of Changes to the immigration rules HC 1248 on 01 July 2021. The Explanatory Memorandum to HC 1248 stated the following about the intentions of the scheme:
7.2 The Graduate route is a new route for international students who have successfully completed an eligible course as a student at a student sponsor which is a higher education provider with a track record of compliance. It improves the UK’s offer to international students considering study here, by giving those who successfully complete an eligible course a further two years (three years for those being awarded doctorates) in the UK, during which they can work or look for work at any skill level.
…..
7.5 Applicants must have successfully completed the course of study undertaken during their most recent grant of permission as a Student (which includes permission under Tier 4), and their sponsor must notify the Home Office of this before the application is made. The course must have led to the award of a degree at UK bachelor’s or postgraduate level, or a professional course requiring study at UK bachelor’s degree level or above, in a profession with reserved activities that is regulated by UK law or UK public authority. Changes to a course that are permitted under the Student route will not disqualify an applicant from being granted permission, provided the qualification gained still meets the qualification requirement. …
7.6 Study on an eligible course must have taken place in the UK for a minimum period which is based on the total length of the course. For those who have completed a course lasting 12 months or less, the whole of the course must have been studied in the UK. Those on courses lasting longer than 12 months will need to have been granted permission for at least 12 months on the Student route and have spent that time studying in the UK.
22. The preamble to Appendix Graduate states the following about the intended purpose of the route:
‘This route is for a Student in the UK who wants to work, or look for work, following the successful completion of an eligible course of study at UK bachelor’s degree-level or above. The study must have been with a higher education provider with a track record of compliance.’
23. The Appendix then sets out a series of requirements for permission to stay to be granted. These include requirements for ‘Validity’, ‘Suitability’, ‘Eligibility’, ‘Successful Completion’, ‘Qualification’. ‘Study in the UK’ and provisions relating to dependents.
24. The ‘Eligibility’ requirement under Appendix Graduate states that an applicant must be awarded a total of 70 points based on ‘Successful Course Completion’. The relevant requirements to be met are:
(i) Successful completion requirement
(ii) Qualification requirement
(iii) Study in the UK requirement
25. In this case, the only reason for refusal was that the applicant did not meet the first of those requirements, the ‘Successful Completion requirement’. The relevant part of Appendix Graduate relating to that requirement states:
GR 4.1. The applicant must have last been sponsored by a Student sponsor which is a higher education provider with a track record of compliance on the date of application.
GR 4.2. The applicant must have successfully completed the course of study which was undertaken during their last grant of permission to study on the Student route (where the applicant was allowed to change their course of study without applying for further permission as a Student, this requirement only applies to the course to which they changed).
GR 4.3. The student sponsor must have notified the Home Office, by the date of application, that the applicant has successfully completed the course of study in GR 4.2.
26. Given the terms of the grant of permission, parts of the ‘Qualification’ requirement that might need to be considered are:
GR 5.1. The applicant will meet the qualification requirement if they have successfully completed a course of study for which they have been or will be awarded a UK bachelor’s degree, a UK postgraduate degree, or successfully completed a relevant qualification listed in GR 5.2.
…..
GR 5.4 The qualification must have been gained during the last grant of permission to study as a Student, or in the period of permission immediately before the applicant’s last grant of permission, if the last grant of permission was to undertake a role as a Student Union Sabbatical Officer.
27. Appendix Graduate goes on to state the following about the ‘Decision on application as a Graduate’:
GR 7.1. If the decision maker is satisfied that all the suitability and eligibility requirements for a Graduate are met the application will be granted, otherwise the application will be refused.
GR 7.2. If the application is refused, the person can apply for an Administrative Review under Appendix AR: Administrative Review.
28. The Interpretation section in the introduction to the immigration rules defines the term ‘Successfully Completed’ as:
“Successfully completed” means the Student or Child Student has completed their course and been assessed by their sponsor, and has been or will be awarded, a qualification that is: [my emphases]
(a) for the course of study for which their Confirmation of Acceptance for Studies was assigned; or
(b) a degree at either UK Bachelor’s degree level or UK postgraduate degree level, as part of an integrated programme for which their Confirmation of Acceptance for Studies was assigned; or
(c) for the course of study with their student sponsor to which they were allowed to change without applying for further permission on the Student route.
29. The respondent’s guidance to caseworkers considering applications under Appendix Graduate is ‘Graduate route’ (Version 2.0) (05 November 2021) says the following about the ‘Successful completion requirement’ (pg.8).
Successful completion requirement
Caseworkers must check the Register of Student sponsors to ensure that the Student Sponsor is a higher education provider with a track record of compliance on the date of application. Sponsors which are HEPs are listed as ‘Student sponsor – track record’ on the Register of Student Sponsors.
The caseworker must check the applicant has successfully completed the course of study which was undertaken during their last grant of permission to study on the Student route, or their last permission to study prior to taking up an Student Union Sabbatical Office (SUSO) role on the Student route. Students who undertake two consecutive periods as a Student Union Sabbatical Officer after their studies will still be able to meet this requirement. …..
Sponsor notification
The Student Sponsor must have notified the Home Office, by the date of application, that the applicant has successfully completed the course of study. Sponsors will normally do this by way of bulk upload. If sponsors are unable to make the notification via bulk upload, they must use the agreed exceptions process.
If a notification has not been received from the Student Sponsor, but the CAS shows that the applicant had been studying a qualifying qualification, the caseworker must not refuse the application if it would otherwise be granted. Instead, the caseworker must contact the Sponsor asking for confirmation that the student has successfully completed the course of study.
Decision and reasons
30. I have concluded that it is not a proportionate use of court time to attempt to address each of the generalised and shifting arguments put forward on behalf of the applicant, some of which appear to have been added without any understanding of the need for procedural rigour in judicial review proceedings, or it seems, a basic understanding of the scheme of Appendix Graduate: see R (Talpada) v SSHD [2018] EWCA Civ 841 and R (Spahiu) v SSHD [2018] EWCA Civ 2604; [2019] Imm AR 524.
31. It is more helpful to consider whether the decision that was made on 14 June 2023 was a lawful and rational decision within the context of the relevant immigration rules.
32. The starting point is that the respondent has power to make rules as to the practice to be followed in regulating the entry into and stay in the United Kingdom.
33. This case concerns an application for permission to stay under Appendix Graduate, which unfolds in a pyramidical way into sub-requirements. The way the rules are set out online does not help in understanding the structure of the scheme, but I will attempt to explain it here.
34. The section relating to ‘Decision on the application’ makes clear at paragraph GR 7.1 that an applicant must meet all the ‘Suitability’ and ‘Eligibility’ requirements before permission to stay will be granted.
35. The respondent refused the application on the ground that the applicant did not meet all the ‘Eligibility’ requirements. The applicant was required to show that he met all three of the ‘Eligibility’ requirements before 70 points could be awarded for ‘Successful Course Completion’.
36. The respondent refused the application on the ground that the applicant did not meet the ‘Successful Completion requirement’. No issue was raised about the ‘Qualification requirement’ or the ‘Study in the UK requirement’.
37. The applicant was required to show three mandatory elements, denoted by the word ‘must’, to meet the ‘Successful Completion requirement’.
(i) The applicant needed to show that he was last sponsored by a relevant Student Sponsor (GR 4.1). No issue was raised in relation to this requirement.
(ii) The applicant needed to show that he had ‘successfully completed’ the course of study (GR 4.2). The respondent concluded that he did not meet this requirement.
(iii) The applicant also needed to show that the Student Sponsor had notified the Home Office by the date of application that he had ‘successfully completed’ the course (GR 4.3). The respondent concluded that he did not meet this requirement.
38. The meaning of the term ‘successfully completed’ the course of study is defined in the Interpretation section of the immigration rules. That definition also included three elements for the purpose of interpreting the requirement of paragraphs GR 4.2 and GR 4.3 of Appendix Graduate:
(i) The applicant needed to have completed the course; and
(ii) The course needed to have ‘been assessed’ by the sponsor; and
(iii) He ‘has been or will be’ awarded one of the relevant qualifications.
39. The only reason given for refusing the application was the fact that the applicant had failed to show that his Student Sponsor had notified the Home Office that he had ‘successfully completed’ the course by the date of the application.
40. At the date of the application the evidence suggests that it was more likely than not that the applicant satisfied the first two elements of the definition of ‘successfully completed’ contained in the immigration rules i.e. (i) ‘has completed their course’; and (ii) ‘has been assessed by their sponsor’ (see [28] above).
41. When enquiries were made with the Student Sponsor, they were able to confirm that the applicant had completed the programme within the general sense of the word. It is reasonable to infer from the wording of the decision letter that that they had assessed the applicant to have completed all the relevant parts of the course. However, it seems clear from the last sentence of the relevant paragraph of the decision letter that the Student Sponsor could not ‘confirm the award status yet’ because of the fees issue.
42. For this reason, I conclude that the information provided by the Student Sponsor to the respondent could not be considered as notification that the applicant had ‘successfully completed’ the course within the full meaning of the term as defined in the Interpretation section of the immigration rules and as used in GR 4.2 and GR 4.3 of Appendix Graduate. Because of the difficulty with the fees issue, the Student Sponsor was not able to notify the respondent that the applicant met the last requirement of the definition i.e. that he ‘has been or will be awarded a [relevant] qualification’.
43. The oral arguments put on behalf of the applicant at the hearing were as unfocused as the written pleadings. No proper public law grounds were articulated beyond a general submission that it was ‘unfair’ that the applicant did not meet the requirement because of an error on the part of the Student Sponsor and that the respondent had chosen not to exercise discretion in the Administrative Review.
44. The submission made about paragraph GR 5.1 being ‘a separate and distinct’ means of qualifying under the rules disclosed a lack of understanding of the scheme. I accept that the ‘Qualification’ requirement contained in paragraph GR 5.1 uses similar wording to paragraphs GR 4.2 and GR 4.3 where it refers to the applicant needing to have ‘successfully completed a course of study for which they have been or will be awarded … a relevant qualification’. The definition of ‘successfully completed’ contained in the Interpretation section is equally likely to apply to that aspect of the rules. To this extent there appears to be some tension between the fact that the respondent did not dispute that the applicant met the requirement of paragraph GR 5.1 but did dispute whether he met the requirement of paragraph GR 4.2.
45. However, the wording of those paragraphs can be distinguished from the additional requirement contained in paragraph GR 4.3 for the Student Sponsor to notify the respondent that the course had been ‘successfully completed’. For the reasons already given at [42] above, the Student Sponsor did not notify the respondent that the applicant had ‘successfully completed’ the course within the full meaning required by the immigration rules.
46. I bear in mind that the applicant made the original application himself and is unlikely to have any specialist knowledge of immigration law. While appreciating that many parts of the immigration rules are now very complicated, the rules in relation to this category are, in comparison to others, easier to understand. Appendix Graduate is relatively short and when read as a whole the requirements are clear (as outlined above).
47. The onus was on the applicant to show that he met all three of the ‘Eligibility’ requirements of the immigration rules before permission to stay would be granted.
48. Although this application seems to have been treated like an appeal, with his representatives adducing further evidence that was not before the respondent without permission, nothing in that evidence seems to suggest that the applicant checked with his Student Sponsor that notification of completion of the course had been sent to the Home Office for the purpose of GR 4.3 before he made the application for permission to stay on 07 May 2023. Had the applicant made checks in good time, the error relating to the recording of the scholarship payment in the fees account might have been rectified in time for him to make the application.
49. What is notable is that any errors that were made in relation to this application were either made by the applicant (in failing to check in good time with the Student Sponsor that the requirement to notify the Home Office had been met) or the Student Sponsor (in not having recorded the fees correctly allowing them to then notify the Home Office of the award status). Nowhere is any public law error on the part of the respondent identified. It is accepted that at the date of the application, which is the relevant date for the purpose of paragraph GR 4.3, the Student Sponsor had not, as a matter of fact, notified the Home Office of the completion of the course within the full meaning required under paragraph GR 4.3 of Appendix Graduate.
50. I have sympathy for the situation that the applicant finds himself in, but this is a judicial process in which the court only has power to make an order if a public law error is identified that might justify making an order to quash (set aside) the respondent’s decision.
51. It is understandable that the applicant might feel that the situation gives rise to a feeling of unfairness in the general sense of the word. However, no unfairness in the legal sense of the word has been identified. There is no principle of substantive unfairness in public law: see Gallaher Group Ltd v Competition and Markets Authority [2018] UKSC 25.
52. The applicant attempted to explain the situation when he applied for Administrative Review. However, the scope of an Administrative Review is limited in nature. Although the respondent always has power to exercise discretion, no specific request appears to have been made in the grounds for Administrative Review to ask the respondent to do so. It is not incumbent on the respondent to consider whether to exercise discretion when no formal request has been made.
53. It is insufficient to argue on behalf of the applicant that the decision was ‘unfair’ in a general sense of the word because the rule are ‘prescriptive’. That is the purpose of a rule. They are rules governing the practice to be followed in regulating the entry into and stay in the United Kingdom. There is no legal concept of ‘near miss’.
54. Once the applicant had explained the situation, this could be seen as a rather rigid decision, but it was open to the respondent to refuse the application because the applicant did not meet all of the ‘Eligibility’ requirements, and in particular, with reference to paragraph GR 4.3. Given the very limited nature of an Administrative Review, which is restricted to considering caseworking errors made by the original decision maker (when no such errors have been identified in this case) it cannot be said that the failure to exercise discretion was outside a range of reasonable responses to the limited information provided by the applicant.
55. For the reasons given above, I conclude that the decisions dated 14 June 2023 and 04 August 2023 disclose no public law errors.
56. The application for judicial review is dismissed.
Post-script
57. Since the date of the decision, more detailed information is now available, which includes evidence to show that (i) through no fault of the applicant, an error was made by the Student Sponsor as to the outstanding fees which led to them, wrongly, not to confirm the award status when checks were made by the respondent; and (ii) further evidence to show that the issue was resolved and the award was granted in July 2023.
58. Although the applicant has failed to show that the decisions to refuse permission to stay were unlawful, it would still be open to the respondent to consider whether it might be appropriate to exercise discretion in light of the more detailed information that is now before him. But for the error made by the Student Sponsor, it is likely that the applicant would have met the requirements of the immigration rules.
59. It is said that the scheme is designed to improve the United Kingdom’s offer to international students, such as the applicant, considering studying here by giving those who successfully complete an eligible course an opportunity to stay for another two years, during which time they can work or look for work at any skill level. The respondent might want to consider whether, if the scheme is applied too rigidly, it might have the opposite effect of deterring international students from choosing to study in the United Kingdom.
60. Whether discretion is exercised in light of the more detailed information now available is a matter for the respondent. Nothing in this decision mandates a particular course of action.
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