Tribunal decisions

The decision

IN THE UPPER TRIBUNAL

JR/4819/2016

Field House,
Breams Buildings
London
EC4A 1WR

Before

THE HONOURABLE MR JUSTICE LEWIS
UPPER TRIBUNAL JUDGE PETER LANE

Between

R (on the application of) ralalage
Applicant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr. A. Jafar, Counsel (Direct Access) on behalf of the Applicant.

Mr. C. Thomann, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.

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JUDGMENT
(Hearing: 10 May 2017)
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JUDGE PETER LANE:

A. Introduction
1. This is the judgment of the Tribunal. The applicant, a citizen of Sri Lanka, applies for judicial review of the decision of the respondent, taken on 7 January 2016, to refuse the applicant's application, made on 25 November 2015, for leave to remain in the United Kingdom as a Tier 2 (General) Migrant (skilled worker). Permission to bring judicial review proceedings was refused on the papers by Upper Tribunal Judge Gill on 20 October 2016 but granted by Upper Tribunal Judge Perkins, on oral reconsideration, which took place on 23 February 2017.
2. The case involves the relationship between the system of immigration controls contained in the Immigration Act 1971, and related enactments, and the right of free movement under the European treaties, to which (at the relevant time) effect was given in the United Kingdom by the Immigration (European Economic Area) Regulations 2006.
3. The applicant's immigration history, so far as it is relevant, is as follows.
4. On 15 July 2007, the applicant entered the United Kingdom, with leave as a student. Further leave to remain in that capacity was granted to him by the respondent in 2010.
5. On 20 October 2011, the applicant applied for leave to remain as a Tier 1 (Highly Skilled Migrant - Post-Study). Leave to remain in that capacity was granted on 12 December 2011, for the period of a year.
6. On 26 October 2013, around six weeks before his Tier 1 leave was to expire, the applicant applied to the respondent to be issued with a residence card as an extended family member of his uncle, who was an EEA national exercising treaty rights in the United Kingdom. On 12 January 2014, the respondent refused this application. The applicant filed a notice of appeal against that refusal. On 5 February 2015, his appeal was dismissed by the First-tier Tribunal. Permission to appeal against that decision was refused by the First-tier Tribunal and, on 30 June 2015, by the Upper Tribunal. At that point the applicant became appeal rights exhausted.
7. On 27 July 2015, 27 days after becoming appeal rights exhausted, the applicant applied for leave to remain under the Tier 2 (General) Migrant (skilled worker) provisions of the Immigration Rules. That application was refused by the respondent on 5 October 2015. An administrative review of that refusal was undertaken but, on 2 November 2015, the respondent maintained the refusal.
8. On 25 November 2015, the applicant made a new application for leave to remain as a Tier 2 (General) Migrant (skilled worker). It is that decision (maintained on administrative review in February 2016) which, as has already been said, is the decision under challenge in the present proceedings.

B. Documentation
9. It is necessary to refer to certain documentation. On 14 November 2013, the respondent acknowledged the applicant's application of 26 October 2013 (made via Jein Solicitors). The acknowledgement was headed "Certificate of Application". It stated that the respondent would make a decision on the application as soon as she could and, in any event, within the next six months. The applicant was told not to telephone or make enquiries about the progress of the application before he heard from the respondent "unless a passport or other document is needed urgently, as this diverts resources from making decisions". The Acknowledgement document continued as follows:-
"We advise your client not to make any non-urgent travel plans until we have decided your client's application and returned your client's passport(s) or travel document(s)."
10. Overleaf, the respondent set out some questions and answers, for the information of applicants. In respect of applications based on being an extended family member, the Acknowledgement said as follows:-
"In these circumstances there is no automatic right or entitlement to live in the United Kingdom with an EU citizen sponsor. The Home Secretary must consider whether, in all the circumstances of the case, it would be right to issue a Residence Card on this basis. This means that until we have determined that you qualify as an unmarried partner or as an extended family member by issuing a residence document, you are not able to work on the basis of your relationship to your EU citizen sponsor. Any right to work in the meantime will depend on your having some alternative basis of stay in the United Kingdom which does not prohibit access to employment or self-employment".
11. The reasons for refusal letter of 13 January 2014 said:-
"In order to qualify for a residence card as the extended family member of an EEA national under Regulation 8(1) of the Immigration (EEA) Regulations 2006, the Home Office requires evidence that you are related as claimed to your EEA national sponsor.
This department also requires evidence that you were dependent upon and, or residing with your sponsor prior to entering the United Kingdom and that since you entered the United Kingdom you have continued to be dependent upon and, or residing with your sponsor in order to qualify under Regulation 8(2) of the Immigration (EEA) Regulations 2006.
...
You have not provided any evidence of your dependency on your EEA national sponsor at any time, either in Sri Lanka or in the United Kingdom. You have not provided any evidence that you were dependent on your EEA national sponsor immediately prior to entering the United Kingdom as required under Regulation 8(2)(a), in addition, we have not received any evidence that you have been residing with or have been dependent upon your EEA national sponsor since entering the United Kingdom as required under Regulation 8(2)(c).
It is noted that you originally entered the United Kingdom as a student and not on the basis that you were travelling with your EEA sponsor as you were dependant on them. Your EEA sponsors passport shows that your EEA sponsor has only entered Sri Lanka on 05 June 2011 and then departed on 20 June 2011, the passport being valid from 23 July 2009.
You have provided various bank statements, that show funds have been transferred into your account. However, according to records you entered the United Kingdom in 2007, you have provided evidence that funds were transferred in 2009. Therefore, you have not shown you were dependent on your EEA sponsor for two years.
It is also noted that your brother married an EEA national on 14 June 2008, furthermore you could not have relied on the provisions set out in the Immigration (European Economic Area) Regulations 2006 until that point. To conclude, you could not have been dependent on the EEA national prior to entering the United Kingdom as you were not related by law until 2008.
You have provided evidence that you claim to have been residing with the EEA national since entering the United Kingdom. However, the evidence you have submitted is insufficient to suggest that [you] are dependant on your EEA sponsor. ...
For the reasons stated above you have failed to provide sufficient evidence that you were dependent upon and, or residing with your sponsor prior to entering the United Kingdom and that since you entered the United Kingdom you have continued to be dependent upon and, or residing with your sponsor.
Therefore, it has been decided to refuse to issue the confirmation that you seek with reference to Regulation 8(2) of the Immigration (European Economic Area) Regulations 2006."
12. The accompanying "Notice of Immigration Decision" told the applicant that:-
"You have applied for a residence card as the extended family member of an EEA national. Your application has been considered in accordance with Regulation 8 of the Immigration (EEA) Regulations 2006 but there are insufficient grounds for issuing you with a residence card.
You do not have a basis of stay in the United Kingdom under the Immigration (European Economic Area) Regulations 2006.
As you appear to have no alternative basis of stay in the United Kingdom you should now make arrangements to leave. If you fail to make a voluntary departure a separate decision may be made at a later date to enforce your removal from the United Kingdom. Any such decision and associated appeal rights would be notified separately."
13. There followed a statement that the applicant was entitled to appeal against the decision under section 82 of the Nationality, Immigration and Asylum Act 2002 and regulation 26 of the Immigration (European Economic Area) Regulations 2006. A pro forma notice of appeal was enclosed.
14. The decision of 7 January 2016 to refuse leave was taken by reference to paragraph 245HD(p) of the Immigration Rules (see paragraph 15 below). The respondent's decision said:-
"You have applied for leave to remain in the United Kingdom under the Tier 2 (General) category but the Secretary of State is satisfied that you have failed to meet the requirements to qualify for a grant of leave to enter or remain. This is because you have overstayed in the United Kingdom for a period which is more than 28 days.
You are considered to have overstayed in the United Kingdom where you have remained beyond the latest of:
(i) The time limit attached to the period of leave granted, or
(ii) Beyond the period that your leave was extended under sections 3C or 3D of the Immigration Act 1971, or
...
Your leave to remain expired on 12th December 2013 but you did not submit a valid application for leave to remain until 27th July 2015. This was more than 28 days after the date your previous leave to remain expired. In addition, your leave was not extended under any of the other provisions listed in the Immigration Rules. Please be aware that your application for an EEA Residence Card is not considered to be a valid application for the purposes of section 3C and it did not extend your leave.
In the light of this the Secretary of State has deemed that refusal is appropriate under paragraph 245HD(p). You do not, therefore, meet the requirements specified in the Immigration Rules in order to be granted leave under the Tier 2 (General) category."
The decision also contained other information, including liability for removal and information about the consequences of illegally staying in the United Kingdom.

C. Rules and legislation
15. At this point, it is convenient to set out the provisions of the Immigration Rules and primary and secondary legislation with which we are concerned:
Immigration Rules
245HD. Requirements for leave to remain
To qualify for leave to remain as a Tier 2 (General) Migrant ? under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
?
(p) The applicant must not be in the United Kingdom in breach of immigration laws except that any period of 28 days or less will be disregarded.
?
Immigration Act 1971
3. General provisions for regulation and control
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen-
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom either for a limited or for an indefinite period;
?..
3C. Continuation of leave pending variation decision
(1) This section applies if-
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation of leave is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) the leave is extended by virtue of this section during any period when-
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought ?
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending ? or
(d) an administrative review of the decision on the application for variation-
(i) could be sought, or
(ii) is pending
(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
?
24 Illegal entry and similar offences
(1) A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine not exceeding level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases:-
?.
(b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either-
(i) remains beyond the time limited by the leave;
?
Immigration Act 1988
(1) A person shall not under the principal Act1 require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable [EU] right or of any provision made under section 2(2) of the European Communities Act 1972
(2) The Secretary of State may by order made by statutory instrument give leave to enter the United Kingdom for a limited period to any class of persons who are nationals of member States but who are not entitled to enter the United Kingdom as mentioned in subsection (1) above; and any such order may give leave subject to such conditions as may be imposed by the order.
(3) References in the principal Act to limited leave shall include references to leave given by an order under subsection (2) above and a person having leave by virtue of such an order shall be treated as having been given that leave by a notice given to him by an immigration officer ?

Immigration and Asylum Act 1999
10 Removal of certain persons unlawfully in the United Kingdom
(1) a person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.
?
The Immigration (European Economic Area) Regulations 2006
'Extended family member'
8. -(1) In these Regulations, 'extended family member' means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
?
Issue of residence card
17. ?
(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if-
(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15: and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
?
Appeal rights
26. - (1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.
?
SCHEDULE 2
EFFECT ON OTHER LEGISLATION
Leave under the 1971 Act
1. - (1) In accordance with section 7 of the Immigration Act 1988, a person who is admitted to or acquires a right to reside in the United Kingdom under these Regulations shall not require leave to remain in the United Kingdom under the 1971 Act during any period in which he has a right to reside under the 1971 Act under these Regulations but such a person shall require leave to remain under the 1971 Act during any period in which he does not have such a right.
?

D. The applicant's submissions
16. Mr Jafar, on behalf of the applicant, submits, first, that the words "immigration laws" in paragraph 245HD(p) should be interpreted widely. In addition to covering the legal regime contained in the 1971 Act and its Rules, wherein lawful presence in the United Kingdom for those who are not British citizens is governed by the requirement to have leave, in his skeleton argument, Mr Jafar contends that a person should not be regarded as being in the United Kingdom:-
"in breach of immigration laws during any period when he or she is in the United Kingdom, pursuing an appeal against a refusal to issue a refusal of the respondent to issue a residence card under the 2006 (or, now, the 2016) Regulations".
17. Alternatively, Mr Jafar submits that the respondent acted unfairly towards the applicant. The "Certificate of Application" of 14 November 2013 gave the impression that the applicant was not expected to leave the United Kingdom, on the basis that he was an overstayer, since he was specifically advised "not to make any non-urgent travel plans until we have decided your client's application ...".
18. Mr Jafar's third submission is that the respondent has a duty to advise persons in the position of the applicant that, although they may make an application for a residence card under the EEA Regulations, the consequences of doing so may be such that they will be regarded as overstayers, with all that entails.
19. Although Mr Jafar's skeleton argument contained a submission that the respondent's treatment of the applicant was unlawfully discriminatory, he specifically withdrew this at the hearing. Mr Jafar also confirmed at the hearing that the applicant did not intend to pursue any ECHR Article 8 grounds.

E. Discussion
(a) The first submission
20. A major difficulty for the applicant is AS (Ghana) v Secretary of State for the Home Department [2016] EWCA Civ 133. Beatson LJ stated the issue in that case as follows:-
"4. The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected.
5. It was submitted by Mr Kannangara on behalf of the appellant that it is to be so treated. He argued that this was because regulation 26 of the Immigration (European Economic Area) Regulations 2006 SI 2006/1003 ('the 2006 Regulations') provides rights of appeal to EEA nationals and qualifying family members and that the provisions of or made under the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') have effect in relation to such an appeal as if it was an appeal against an immigration decision under section 82(1) of the 2002 Act. He in substance argued that the position of a person who is appealing against the refusal of an application for a claim to residence based on a right under any of the Community Treaties should be similar to that which a person applying for a variation of leave is granted by section 3C of the Immigration Act 1971, which extends his leave pending a decision on that application and any appeal against that decision."
21. Beatson LJ identified two enactments, which the Court of Appeal evidently regarded as of particular importance; namely, section 7 of the Immigration Act 1988 and paragraph 1 of Schedule 2 to the 2006 Regulations (see paragraph 15 above).
22. The Court held as follows:-
"20. It is clear, and it was accepted by Mr Kannangara, that a person who has a right under EU law to be in the United Kingdom does not require leave under the 1971 Act. This must include rights under the 2004 Directive and the 2006 Regulations. It is also clear from the decision of the Third Chamber of the CJEU in case C-325/09, Secretary of State for Work and Pensions v Dias (21 July 2011) [2011] 3 CMLR 40, that the grant of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to European Union law. The CJEU made it clear that residence permits have a declaratory as opposed to a constitutive character. The effect of residence permits on the position of family members of EU and EEA citizens who qualify under the Directive and the 2006 Regulations cannot differ from that of EU and EEA citizens. The family members' rights stem from EU law and not from a decision of the Secretary of State. See also McDonald's Immigration Law & Practice 9th Edition at 6.156 where it is stated that 'It is trite law that a residence card is the evidence of a right and not the source of it', although, as was observed in Sanneh & Ors v The Secretary of State for Work and Pensions [2015] EWCA Civ 49, [2015] 1 WLR 1867 at [68], 'Matters of entry and stay for non-EU citizens are matters outside the exclusive competence of the EU but the CJEU has laid down the principle that decisions which member states take on these matters must not be such as to make the rights of EU citizenship ineffective'. It was also observed in that case (at [170]) that 'The right to reside conferred by EU law takes effect automatically in domestic law'.
21. It is common ground that there are two regimes potentially in play for those in this country who are not UK citizens. The first is that under the 1971 Act which requires a grant of leave by the Secretary of State. The second is that under the Free Movement of Citizens Directive 2004 and the 2006 Regulations. As is perhaps clear from the discussion above, the question to be asked in each category is different. Under the 1971 Act a person requires leave and if he or she does not have it, that person has no status in this country. Those who have status pursuant to a grant of leave may have that leave extended if an application to vary the leave is refused and there is an appeal against the immigration decision that is refusing the application.
22. The position of those claiming to have EEA rights differs. Their rights result from their position and, in the case of their dependants, the position of the EEA citizen. They either have those rights or they do not have those rights. The EEA citizen only has those rights so long as he or she remains a qualified person within regulation 6 of the 2006 Regulations. Although there is provision for an appeal against the decision refusing an application under the Regulations, no provision has been made in the Regulations for a right to remain in this country pending the exercise of such an appeal.
23. I do not accept that the Regulations and in particular paragraph 1 of Schedule 1 and paragraph 1 of Schedule 2 can be construed to mean that there is a different answer. Mr Kannangara's submission that a person 'should' have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court. In the particular circumstances of this case where the appeal under the Regulations was abandoned and it appears that the appellant's right to be in this country as a dependant of an EEA national may have ceased before the divorce in 2011 and thus before his application for permanent residence on 16 November 2011, his argument is, in my judgment, without merit.
24. It follows from this consideration of the Directive and the UK statutes and regulations that the appellant did not have leave to remain at the time he made his application via the 'private life' route. It follows from this that the decision of the Secretary of State dated 16 August 2013 refusing that application could not have been an immigration decision.
25. As well as the provisions to which I have referred, paragraph 4(2) of schedule 2 to the 2006 Regulations expressly provides that a person who has been issued with a residence card shall have no right of appeal under section 82(1) of the 2002 Act, and regulation 19(5) recognises the distinction between the right to reside under EU law and the right to remain under the 1971 Act. It provides that a person must not be removed as a person who does not have or ceases to have a right under the 2006 Regulations it he has a right to remain by virtue of leave granted under the 1971 Act."
23. In AS (Ghana), the submissions for the appellant amounted to a contention that paragraph 1 of Schedule 1 to the EEA Regulations should be construed as having an effect corresponding to that of section 3C of the 1971 Act. The Court rejected those submissions, on the basis that it is for Parliament, rather than the courts, to expand upon what Parliament has seen fit to say in section 7(1) of the 1988 Act, concerning the relationship between EU rights of residence and the regime under the 1971 Act.
24. We find that the interpretation of paragraph 245HD(p) urged on us by Mr Jafar is open to the same objection. It too would result in a judge-made equivalent of section 3C of the 1971 Act, covering appellate proceedings under the EEA Regulations.
25. As Beatson LJ pointed out at paragraph 22 of AS (Ghana), "Although there is provision for an appeal against the decision refusing an application under the Regulations, no provision has been made in the Regulations for a right to remain in this country pending the exercise of such an appeal". That finding was reiterated a few weeks after the handing down of the judgment in AS (Ghana) by another division of the Court (which included Beatson LJ) in R (Ahmed) v Secretary of State for the Home Department [2016] EWCA Civ 303. In Ahmed, it was held that rights of appeal under the EEA Regulations in the case of third-country nationals asserting rights as family members are not suspensive. The Court agreed with the Upper Tribunal that it is wrong
"to conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion" (paragraph 10: Laws LJ).
26. The ability of the respondent to remove a third-country national, who is pursuing an EEA appeal, arises from the fact that the national "requires leave to enter or remain in the United Kingdom but does not have it" (section 10 of the Immigration and Asylum Act 1999). As the heading to section 10 makes clear (see paragraph 15 above), such a person is in the United Kingdom unlawfully; otherwise, he or she could not be removed. There is also no escaping the fact that, at least in theory, the person concerned risks prosecution for an offence under section 24 of the 1971 Act.
27. As can now be seen, an acceptance of Mr Jafar's first submission would be directly contrary to the judgments in Ahmed, as well as those in AS (Ghana). If, by pursuing an EEA appeal, a person must be treated as being present in accordance with immigration laws, then he or she cannot be removed from the United Kingdom until he or she becomes appeal rights exhausted.
28. We do not find there is any scope for holding that paragraph 245HD(p) and section 10 should be construed differently, so that a person will be in breach of immigration laws for the purposes of removal under section 10 but not for the purposes of the requirement in sub-paragraph (p). To do so would undermine the structure of the legislative scheme. In enacting section 7 of the 1988 Act and paragraph 1 of Schedule 2 to the 2006 Regulations (which is declaratory of the effect of section 7), Parliament has specified the relationship between the 1971 Act regime and that of EU law. Since there is nothing in EU law to indicate that this specification is contrary to the United Kingdom's obligations under EU law, any change must be a matter for Parliament.
29. The present applicant asserted that he should be given a residence card as an extended family member, rather than as a family member. The difference between those two categories is that the respondent has discretion under regulation 12(2) whether to grant such a card to an extended family member, even where the person concerned is held to satisfy the requirements of regulation 8(2), (3), (4) or (5). In the case of family members, the respondent must issue the residence card, which acts as a recognition of the underlying right of the person concerned, rather than as an instrument conferring that right (regulation 12(1)).
30. In Sala v Secretary of State for the Home Department [2016] UKUT 00411 (IAC), the Upper Tribunal held that there is no statutory right of appeal against the decision of the respondent not to grant a residence card to a person claiming to be an extended family member. This is because the EEA Regulations confer a right of appeal only in respect of EEA decisions which concern a person's "entitlement to be issued with or to have renewed, or not to have revoked, a residence permit or residence document" (regulation 2(1)).
31. The issue in Sala is the subject of a pending appeal to the Court of Appeal. Our findings, however, do not depend upon any distinction between family members and extended family members. We have found that a person is in breach of immigration laws for the purposes of paragraph 245HD(p) during such time as he or she (i) was in the United Kingdom without leave and (ii) required such leave. That is so of persons who unsuccessfully contend they are family members, as much as it is of those unsuccessfully seeking recognition as extended family members.

(b) The second submission
32. We do not accept that any "fairness" issue, however described, arises from the terms of the "Certificate of Application" of 14 November 2013. The respondent's advice to the applicant not to make "any non-urgent travel plans until we have decided your client's application and return your client's passport(s) or travel document(s)" cannot properly be said to amount to a representation, let alone an acknowledgment, that the applicant had a right to remain in the United Kingdom merely by making the application for a residence card.
33. In any event, Mr Jafar's submissions regarding paragraph 245HD(p) relate to the period between the respondent's decision to refuse the residence card application and the point when the applicant became appeal rights exhausted as regards his appeal against that refusal. As is evident from paragraphs 11 and 12 above, the terms of the notice of decision and accompanying "reasons" letter were sufficiently plain: the applicant was told that he should leave the United Kingdom unless he considered that he had some other basis upon which to remain.

(3) The third submission
34. We are entirely satisfied that there is no common law basis for finding that the respondent should have given the applicant detailed written advice regarding the relationship between the 1971 Act and the relevant European law. It is plainly the case that a person who decides to pursue an application under the EEA Regulations may thereby prejudice their position under the Immigration Rules by becoming or remaining an overstayer. As can readily be appreciated, however, a bald statement to that effect in a notice of decision or associated "reasons" letter from the respondent is likely to carry its own difficulties. It might, for instance, be perceived as putting pressure on individuals not to pursue their European rights.
35. It is, in short, not the function of the respondent to advise individuals on legal and tactical considerations in the field of immigration law. The applicant was acting through solicitors at all material times. The applicant's only legitimate expectation was to receive advice from those solicitors.

E. Section 31A(2) of the Senior Courts Act 1981
36. Finally, the applicant's submissions regarding the interpretation of paragraph 245HD(p) in any event founder for a separate reason. As the Tribunal pointed out at the hearing, the application made on 25 November 2015, which gave rise to the decision under challenge, was made some four months and 26 days after the applicant became appeal rights exhausted. Thus, even if (which we do not find) there was any merit in the applicant's contention that he had not been in breach of immigration laws for 28 days, when he made his previous application on 27 July 2015, he plainly had been, by the time of his application in November 2015. Although the respondent's decision referred to the period leading up to 27 July 2015, it is manifest that the respondent's decision of 7 January 2016 would have been the same, had she counted back from 14 November 2015. Applying section 31A(2) of the Senior Courts Act 1981, the Tribunal would, accordingly, refuse relief.

F. Decision
37. The application is dismissed. The Tribunal will hear Counsel on the issue of costs, unless this can be agreed.~~~~0~~~~

23 June 2017