Kishver and Others ('Ltd Leave': Meaning) and another
| Jurisdiction | UK Non-devolved |
| Judge | C M G OCKELTON |
| Judgment Date | 26 September 2011 |
| Neutral Citation | [2011] UKUT 410 (IAC) |
| Date | 26 September 2011 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2011] UKUT 410 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, Vice President
Upper Tribunal Judge Southern
For the Appellant: Mr Z Malik, instructed by Malik Law Chambers Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer
Kishver and others (“limited leave”: meaning) Pakistan
“Limited leave” under s. 10(i)(a) of the Immigration and Asylum Act 1999 includes leave under s. 3C of the Immigration Act 1971.
This appellant Sultana Kishver (“the appellant”) is a national of Pakistan. She came to the United Kingdom with her husband on 12 September 2004. They had leave to enter as visitors. Her leave was due to expire on 1 March 2005. In January 2005 applications or purported applications for leave to remain were made by the appellant and her husband. Her husband's application was refused under the rules. The appellant submitted a further application on 11 March 2005 having received no response to her application of 24 January. The appellant's application was refused but that refusal has subsequently been withdrawn. The substantive refusal on which these proceedings have been based was dated 19 March 2009; it refuses further leave and indicates that there is no right of appeal against that decision. Undaunted, the appellant put in a notice of appeal. That was received by the Tribunal on 2 April 2009 and on 12 June 2009 Immigration Judge R A Britton heard the appellant's purported appeal. He dismissed it in a determination sent out on 6 June 2009.
An application for a reconsideration order was on application granted on 27 July 2009 and the matter came before the Tribunal as the Asylum and Immigration Tribunal but as presently constituted by the then Deputy President and Senior Immigration Judge Southern on 8 October 2009. This is the second subsequent hearing. The difficulty raised by this appeal falls under two heads. The first question is whether the appellant had or has ever had a right of appeal to the Asylum and Immigration Tribunal or any Tribunal. The second question arises from the Secretary of State's treatment of her application.
So far as the first question is concerned, it is clear from the history as we have set it out that the matter was dealt with by the AIT as one in which there was a right of appeal. Before us today, although it is fair to say that the documents had been sent in earlier and apparently not put before us, Ms Isherwood raises the question whether there was ever a valid right of appeal. She bases her argument on the fact, and it is a fact, that in the application of 24 January 2005 the appellant used the wrong form. There was a form prescribed for the application which she made and it is accepted on her behalf by Mr Malik that the appellant used the wrong form. At the time the regime for in-country applications for leave to remain was in the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003; those regulations prescribed forms for a number of purposes, including the purpose for which the appellant sought leave.
Regulations 11 and 12 of those regulations are headed “Prescribed Procedures”. In reg 11 “the following procedures are hereby prescribed in relation to an application for which a form is prescribed in any of regulations 3-9 above” (Regulations 3-9 above are the regulations which prescribe the forms).
“(a) The form shall be signed and dated by the applicant…
(b) The application should be accompanied by such documents and photographs as specified in the form.
(c) The application shall be, [I summarise] sent.”
Regulation 12 is, so far as material, as follows:
“12 (1) A failure to comply with any of the requirements of Regulation 11(a) or (b) above to any extent will only invalidate an application if:
(a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,
(b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of state to represent the applicant, of the failure within 21 days of the date on which the application is made, and
(c) the applicant does not comply with the requirements within a reasonable time and in any event within 21 days of being notified by the Secretary of State of the failure”
Those Regulations make it clear that it was open to the Secretary of State to treat an invalid application as one which was valid, because invalidity would only arise if the Secretary of State notified the failure. Ms Isherwood's submission was that reg. 12 applies only when the prescribed form has been used. We do not accept that submission. In our judgement, reg. 11 relates to all matters relating to the application. The words are “the following procedures are hereby prescribed in relation to an application for which a form is prescribed” and the first requirement is that the form, that is to say the prescribed form, shall be signed and so on. It appears to us that reg. 12 clearly covers failures to use the correct form and that the non-use of the correct form could therefore properly, under the Regulations, be condoned by the Secretary of State in an appropriate case.
The position in this appeal is that although the notice of decision of March 2009 made clear the Secretary of State's view that the application of January 2005 was not a valid application, the Secretary of State's position has been at a number of stages during this appeal that there was a valid appeal. That could only be the case if the application of 24 January 2005 was a valid application, because otherwise the appellant's leave would have expired by the time she made her only valid application and she would have had no right of appeal against his refusal.
Ms Isherwood's submissions today were made on the basis that she sought to withdraw a concession which she acknowledged had been made in litigation, to the effect that there was a right of appeal. However we do not think that that is an appropriate way of putting the application which she made. Rights of appeal arise or do not arise by statute. In the present circumstances, although the right of appeal exists only if there was a valid application in January 2005, it was for the Secretary of State to decide, if appropriate, that the application made on that date was a valid application. If it was a valid application then there was a right of appeal in respect of his refusal. If it was not, there was not. It was not open to the Secretary of State to “concede” the right of appeal. What the Secretary of State has done at various stages in this litigation is to treat the application as a valid application. That was itself a...
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