R Ali Basir v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice King DBE,Lady Justice Nicola Davies DBE,Lord Justice McCombe |
| Judgment Date | 23 November 2018 |
| Neutral Citation | [2018] EWCA Civ 2612 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C7/2016/1403 |
| Date | 23 November 2018 |
[2018] EWCA Civ 2612
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE FREEMAN
JR74942014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice King DBE
and
Lady Justice Nicola Davies DBE
Case No: C7/2016/1403
Zane Malik (instructed by Mayfair Solicitors) for the Appellant
Jack Anderson (instructed by Government Legal Department) for the Respondent
Hearing date: 8 November 2018
Judgment Approved
This is an appeal from the decision of the Upper Tribunal (“UT”) promulgated on 3 March 2016. The UT dismissed the appellant's claim for judicial review seeking to challenge the decision of the Secretary of State for the Home Department (“SSHD”) of 17 March 2014 refusing his application for further leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant. Permission to appeal has been granted.
Factual background
The appellant is a citizen of Pakistan, born on 26 November 1981. He was granted leave to enter the United Kingdom as a student on 7 February 2005 until 30 March 2006. Further periods of leave to remain as a student were granted which ended on 31 December 2010. On 15 January 2011 the appellant was granted further leave to remain as a Tier 1 (Post-Study Work) Migrant until 15 January 2013.
The appellant made an application for further leave to remain as a Tier 1 (Entrepreneur) Migrant on 19 December 2012. The SSHD refused that application on 8 May 2013; it was served on 15 May 201It is accepted by the parties that an application is decided when it is served. The appellant had until 24 May 2013 to appeal against the refusal, no appeal was instituted. The appellant then made a further application for leave to remain as a Tier 1 (Entrepreneur) Migrant on 22 May 201At the time he made the application the appellant was on leave extended under section 3C(2)(b) of the Immigration Act 1971 (“the 1971 Act”). The SSHD determined the application on its merits. It was refused on 18 June 2013 and the decision was served on 24 June 2013.
The appellant made another application for further leave to remain as a Tier 1 (Entrepreneur) Migrant on 11 July 2013. The SSHD refused that application on 17 March 201The SSHD gave two reasons for that decision:
i) The appellant had overstayed in the United Kingdom for more than 28 days;
ii) The appellant had not established that he was a genuine entrepreneur.
In refusing the SSHD stated:
“Although your leave to remain expired on 15 January 2013 your leave was extended under section 3C of the Immigration Act 1971 until 24 May 2013. You did not submit this application for leave to remain until 11 July 2013. This was more than 28 days after your previous leave was extended by virtue of section 3C of Immigration Act 1971. In light of this the Secretary of State had deemed that refusal is appropriate under paragraph 245DD(g). You do not, therefore, meet the requirements specified in the Immigration Rules in order to be granted leave under the Tier 1 (entrepreneur) category.”
The refusal decision made no reference to the second application made on 22 May 2013.
The appellant sent a pre-action protocol letter to the SSHD on 28 April 2014. The SSHD responded to that letter and maintained his decision on 12 May 2014. The appellant issued the judicial review proceedings advancing two principal grounds before the UT:
i) The SSHD had erred in law in holding that he had overstayed for more than 28 days;
ii) The SSHD's conclusion that he had not established that he was a genuine entrepreneur was unfair and irrational.
The UT ruled against the appellant in relation to the first ground and, in the circumstances, did not find it necessary to consider and determine the second ground. In summary the UT held:
“18. … the Secretary of State in her final decision was fully entitled to take the view that the 22 May application had been invalid, as made by someone with s3C(2) leave only, and its invalidity could not be cured by the form of the 18 June decision on it. It follows that the applicant's s3C(2) leave ran only till 24 May, and the 11 July application, made more than 28 days after that, was barred by the terms of paragraph 245DD(g).”
Legal framework
At the relevant time, section 3C of the 1971 Act provided automatic statutory extension of leave to remain in certain circumstances, namely:
“(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), or
(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).
(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).”
Paragraph 245DD(g) of the Immigration Rules sets out a requirement for further leave to remain as a Tier 1 (Entrepreneur) Migrant in these terms:
“The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.”
The appeal
The issue on this appeal is whether an application for leave to remain which the applicant is not permitted to make by reason of section 3C(4) of the 1971 Act operates to extend the applicant's leave under section 3C(2) of that Act because the Respondent refuses that application on its merits (which refusal is not challenged) rather than rejecting it as invalid.
The appellant's case
The appellant accepts that when he made his application for leave to remain on 22 May 2013 he was on leave extended pursuant to section 3C(2) of the 1971 Act. He also accepts that section 3C(4) restricts a person's ability to make an application, however it is submitted, it does not restrict the SSHD's ability to consider the application. The application remained with the SSHD for over 28 days before a decision on the merits was made. The SSHD was entitled to treat that application as a valid application and did so. Consequently, that application triggered leave under section 3C(2)(a) of the 1971 Act which ended on 24 June 2013 with the service of the SSHD's decision of 18 June 2013. Further, between 24 June 2013 and 8 July 2013, the appellant was on leave extended under section 3C(2)(b) of the 1971 Act as he could have appealed the SSHD's decision during that time. As a matter of law, his leave extended under section 3C of the 1971 Act, ended on 8 July 2013. Therefore, the gap between that date and 11 July 2013, when he submitted his fresh application, was three days. Thus, the UT erred in law in holding that the gap was over 28 days.
In oral submissions Mr Malik accepted that section 3C(4) provides no express power or discretion to the SSHD to grant leave to remain. However he contends that the same is to be found in section 3(1)(b) and section 3(3) of the 1971 Act. Neither provision is qualified by reference to section 3C(4) or to compliance with the Immigration Rules. Thus, section 3C(4) is not an absolute bar to the power of the SSHD to determine an application made in contravention of it.
Reliance was also placed upon the common law concept of unfairness. The SSHD had taken more than 28 days to make the decision of 18 June 2013. Fairness required that the SSHD should not now be permitted to take the time bar point in ruling on the third application. Had the SSHD made the determination within 28 days, pursuant to Rule 245DD, the appellant would have had 28 days to make a further application and so would not have contravened section 3C(4). Implicit in Mr Malik's argument was a contention that, although not expressed in the 1971 Act or the Rules, there should be a 28-day period within which the...
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