Naresh Kumar Marepally v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lewis LJ,Baker LJ,Holroyde LJ |
| Judgment Date | 24 June 2022 |
| Neutral Citation | [2022] EWCA Civ 855 |
| Docket Number | Case No: CA-2020-000959 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 855
Lord Justice Holroyde
Lord Justice Baker
and
Lord Justice Lewis
Case No: CA-2020-000959
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE HANSON
HU/10446/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Jay Gajjar and Ahmad Badar (instructed by way of direct access) for the appellant
Nicholas Ostrowski (instructed by Government Legal Department) for the respondent
Hearing date: 17 May 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on Friday 24 June 2022.
INTRODUCTION
This is an appeal against a decision of the Upper Tribunal promulgated on 11 August 2020. By that decision, the Upper Tribunal dismissed an appeal from the First-tier Tribunal which itself had dismissed an appeal by the appellant, Mr Marepally, against a decision of the respondent of 6 June 2019 refusing the appellant's application for indefinite leave to remain in the United Kingdom made on the basis that he had completed 10 years' continuous lawful residence in the United Kingdom.
In brief, the appellant applied on 25 January 2017 for leave to remain in the United Kingdom as a Tier 5 (Temporary Worker) Migrant. That application was refused on 29 March 2017. The respondent sent the appellant a notice of the decision but the notice did not inform him that he had a right of appeal. Consequently, the appellant contends that his application had not been determined and section 3C(2)(a) of the Immigration Act 1971 (“the 1971 Act”) extended his existing leave to remain until a notice was served which did inform him of his right of appeal. As he had entered the United Kingdom on 21 February 2009, and as a notice informing him of his right of appeal against the earlier decision had not been sent by 21 February 2019, he contends that he had completed 10 years' continuous lawful residence in the United Kingdom and so was entitled to indefinite leave to remain under paragraph 276B of the Immigration Rules. The respondent was, therefore, wrong to refuse his application for indefinite leave and his appeal against the refusal should have succeeded.
The respondent contends that the appellant's leave to remain was in fact curtailed and expired on 21 January 2014. An application for leave made on that day was determined to be invalid on 3 April 2014. Consequently, the appellant had no leave to remain after that date at the latest. Secondly, and alternatively, the respondent contends that the appellant's leave to remain ended once his application for leave to remain as a Tier 5 (Temporary Worker) had been refused on 29 March 2017 and the time for appealing that decision had passed. The respondent contends that no appeal against the 29 March 2017 decision could have succeeded and there is no proper basis for treating any existing leave to remain as continuing. Consequently, the appellant had not completed 10 years' continuous lawful residence by 21 February 2019. The Upper Tribunal was therefore right to dismiss the appeal against the refusal of leave.
THE LEGAL FRAMEWORK
A person who is not a British citizen needs leave to enter and remain in the United Kingdom. Leave may be given for a limited or an indefinite period: see section 3 of the 1971 Act. A person who is given limited leave may apply for that leave to be extended (or may apply for the grant of indefinite leave to remain). The respondent will decide whether to grant or refuse any application for leave. Certain decisions may be appealed under section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Amendments restricting the scope of the rights of appeal were made by the Immigration Act 2014 (“the 2014 Act”).
The Immigration (Notices) Regulations 2003 (“the 2003 Regulations”) made under section 105 of the 2002 Act deal with the giving of notice of decisions. Regulation 4 requires the decision-maker to give written notice of an appealable decision. Regulation 5 deals with the contents of the notice and provides, so far as material, that:
“ Contents of notice
5(1) A notice given under regulation 4(1) –”
(a) is to include or be accompanied by a statement of the reasons for the decision to which it relates
…..
(3) … the notice given under regulation 4(1) shall also include, or be accompanied by, a statement which advises the person —
(a) his right of appeal and the statutory provisions on which his right of appeal is based;
(b) whether or not such an appeal may be brought while in the United Kingdom;
(c) the grounds on which such an appeal may be brought…..”.
The 1971 Act recognises that an application for an extension of leave to remain may not be determined, or any appeal or review may not be concluded, before the existing leave expires. Section 3C of the 1971 Act, therefore, provides for the continuation of an existing leave in certain circumstances. It provides, so far as material, that:
“ 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 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, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom is pending (within the meaning of section 104 of that Act) …..
(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.
…..
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).”
Section 3C of the 1971 Act therefore extends leave when an application has not been determined or when the time for appealing has not passed. Regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006 (“the 2006 Regulations”) provide that:
“2. For the purposes of 3C of the Immigration Act 1971 an application for leave is decided –
(a) when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002; or where no such notice is required,
(b) when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971”.
The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the Rules”) make provision for appeals to the First-tier Tribunal. Rule 19(1) provides that an appellant must start proceedings by providing a notice of appeal to the tribunal. Rule 19(2) provides that “the notice of appeal must be received not later than 14 days after [the person is] sent the notice of decision against which the appeal is brought”. There is provision for applying to extend time for providing the notice of appeal in rules 4(3)(a) and 20 of the Rules.
The purpose of section 3C of the 1971 Act is to protect the immigration status of those with existing leave to remain who have applied for a variation of that leave and who are awaiting a decision on the application or who are exercising appeal or review rights in respect of that decision. Continuing a person's existing leave during that period will prevent the person becoming an overstayer and being subject to the disadvantages faced by those who remain in the United Kingdom without leave. The purpose of the section is not to enable persons to be able to rely on continuations of leave for the purpose of building up 10 years' continuous lawful residence in order to claim indefinite leave under paragraph 276B of the Immigration Rules although the fact that section 3C extends periods of lawful residence may have an impact on that issue. See generally, paragraphs 40 and 41 of the judgment of Sir Stephen Richards, with whom the other members of the Court agreed, in R (Akinola) v Secretary of State for the Home Department [2021] EWCA Civ 1308, [2022] 1 WLR 1585.
THE FACTUAL BACKGROUND
The appellant is a national of India born on 29 June 1982. His immigration history is complex and not always clear. The material facts for present purposes are as follows.
The Appellant seeks leave to remain in the United Kingdom as a student
On 21 February 2009 the appellant entered the United Kingdom with entry clearance as a Tier 4 (General) Student which was valid until 31 January 2011. His leave to remain as a student was extended until 30 April 2014.
On 26 April 2013, the respondent decided to curtail the appellant's leave so that it would expire on 21 January 2014. The appellant applied on 21 January 2014 for further leave to remain as a student. On 3 April 2014, that application was rejected as invalid as the appellant had not supplied the required biometric data. One of the critical issues governing the appellant's immigration status is whether those events...
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Upper Tribunal (Immigration and asylum chamber), 2023-07-03, [2023] UKUT 00165 (IAC) (Ahmed (historical injustice explained))
...hearing we drew to the attention of Mr Malik and Ms Ahmed a recent authority Marepally v Secretary of State for the Home Department [2022] EWCA Civ 855; [2022] Imm AR 1341, where the Court of Appeal did not accept that a decision refusing leave under the Immigration Rules was invalid becaus......
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Upper Tribunal (Immigration and asylum chamber), 2023-05-19, IA/13694/2021
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