R (on the application of Rashid) v Home Secretary

JurisdictionUK Non-devolved
JudgeUpper Tribunal Judge Gill
Judgment Date18 February 2015
Neutral Citation[2015] UKUT 190 (IAC)
Date18 February 2015
CourtUpper Tribunal (Immigration and Asylum Chamber)

[2015] UKUT 190 (IAC)

UPPER TRIBUNAL

(Immigration and Asylum Chamber)

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

Before

UPPER TRIBUNAL Judge Gill

The Queen (On the Application of Md Mamunur Rashid)
Applicant
and
The Secretary of State for the Home Department Respondent
Respondent
Representation:

For the Applicant: Ms S Kansal, of Counsel, instructed by Universal Solicitors.

For the Respondent: Mr G Lewis, of Counsel, instructed by the Treasury Solicitor.

R (on the application of Rashid) v Secretary of State for the Home Department IJR

delivered on: 2 April 2015

Judge Gill:
Introduction and background facts:
1

The applicant is a national of Bangladesh. He has been granted permission to apply for judicial review of a decision of the respondent of 20 September 2013 rejecting an application he made on 8 August 2013 for leave to remain as a Tier 4 (General) Student. The respondent refused the application on the ground that the applicant had an outstanding appeal against an earlier decision of 14 January 2013 and he was therefore restricted from making a fresh application for leave whilst his appeal was outstanding in accordance with s.3C of the Immigration Act 1971 (the “1971 Act”).

2

The claim was lodged out of time. As this is a matter which goes to jurisdiction, I shall deal with it at the outset (as it had not been dealt with previously). I apply the guidance given by the Court of Appeal in R (Dinjan Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 which explained that there are three stages in a court's consideration of the question whether time should be extended. The claim was lodged on 23 December 2013, less than a week after the “long-stop” period of 3 months. The reason given in the claim form for the delay was that the letter of 20 September 2013 was received on 25 September 2014. Having regard to the fact that the delay was not substantial and the explanation, I have decided to exercise my discretion and extend time. The application is therefore admitted.

3

The respondent's letter dated 20 September 2013 reads:

“I write regarding the completed application form your client submitted for consideration to the Home Office on 08 August 2013 for leave to remain on the basis of a Tier 4 (General) Student visa.

Your client already has an outstanding appeal against the Secretary of State's decision to refuse your client's application for leave to remain as a Tier 4 (General) Student. Your client is restricted from making a fresh application whilst your client's appeal is outstanding in accordance with Section 3C of the Immigration Act 1971 (as substituted by Section 118 of the Nationality, Immigration and asylum Act 2002).

Your client may apply to the Asylum and Immigration Tribunal to have your client's application for leave to remain as a Tier 4 (General) Student to be treated as a variation of your client's grounds of appeal. To this end, your client's documents have been retained on the Home Office file as they may be considered as part of your client's existing appeal.”

4

The applicant arrived in the United Kingdom on 8 May 2010 with entry clearance as a Tier 4 (General) Student valid until 30 April 2012. On 9 March 2012, his Tier 4 leave was extended until 30 May 2013. On 23 October 2012, his sponsor college informed the Secretary of State that he had failed to enrol on his course of study. The following is the subsequent chronology:

14 Nov 2012 The applicant applied in-time for leave to remain as a Tier 2 (General) migrant.

9 Jan 2013 The applicant's leave to remain was curtailed to expire on the same day as he was no longer studying at the approved sponsor for which the leave had been granted.

14 Jan 2013 The respondent refused the applicant's Tier 2 application with a right of appeal. The applicant appealed to the First-tier Tribunal (“FtT”).

3 May 2013 The FtT dismissed his appeal (appeal number: IA/03700/2013). The applicant was granted permission to appeal to the Upper Tribunal (“UT”).

29 July 2013 The UT dismissed the applicant's appeal. The determination of the UT was sent by post.

8 Aug 2013 The applicant made a “fresh application” for leave to remain as a Tier 4 (General) student. This is the application that is the subject of the respondent's letter dated 20 September 2013. The application was sent to the respondent. It was not sent to the UT but it was included in the claim bundle for these judicial review proceedings.

14 Aug 2013 Last date on which the applicant could have made an in-time application to the UT for permission to appeal to the Court of Appeal. No such application was made. This is therefore the date that the applicant exhausted his appeal rights.

5

The Upper Tribunal Judge (UTJ) who granted permission considered it arguable that the respondent erred in law in stating that the applicant was restricted from making a fresh application by virtue of s.3C. The UTJ considered it arguable that the applicant's s.3C leave expired on 29 July 2013 and that the application of 8 August 2013 was made within the period of 28 days provided for in para 245ZX(m) of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the “IRs”).

The relevant provisions
6

The version of s. 3C of the 1971 Act which is relevant in this claim is the version that was in force from 31 August 2006 to 19 October 2014. This provided as follows:

“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), 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).

  • (6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations–

    • (a) may make provision by reference to receipt of a notice,

    • (b) may provide for a notice to be treated as having been received in specified circumstances,

    • (c) may make different provision for different purposes or circumstances,

    • (d) shall be made by statutory instrument, and

    • (e) shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

(my emphasis)

7

The relevant version of s.104 of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) is the version that was in force from 15 February 2010 until 19 October 2014. This provided as follows:

“104 Pending appeal

  • (1) An appeal under section 82(1) is pending during the period-

    • (a) beginning when it is instituted, and

    • (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).

  • (2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while-

    • (a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,

    • (b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or

    • (c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.

  • (4) …

  • (4A) …

  • (4B) …

  • (4C) …

  • (5) …”

8

The applicant's skeleton argument refers to s.103 of the 2002 Act. The version of s.103 that was in force from 1 April 2003 is set out below. S.103 was repealed with effect from 4 April 2005 (the date when the Asylum and Immigration Tribunal was abolished) subject to transitional provisions which are not relevant in this case:

“103 Appeal from Tribunal

  • (1) Where the Immigration Appeal Tribunal determines an appeal under section 101 a party to the appeal may bring a further appeal on a point of law-

    • (a) where the original decision of the adjudicator was made in Scotland, to the Court of Session, or

    • (b) in any other case, to the Court of Appeal.”

The Grounds:
9

Eight grounds have been advanced. Ground 1 may be summarised as follows:

  • i) S.104(2) of the 2002 Act only applies to s.104(1)(b). It does not purport to apply to s.3C(2)(c), i.e. it does not apply to s.3C leave.

  • ii) Accordingly, a proper construction of the words “ when it is finally determined” in s.104(2) of is that an appeal is “ finally determined” when the determination is promulgated.

10

Ground 2 contends that the respondent has a discretion to consider the merits of any application by an individual who has lost his or her appeal before the UT for permission to appeal to the Court of Appeal. If it would be hopeless for such an individual to pursue an appeal to the Court of Appeal, then the respondent should exercise her discretion so that any application for leave made by such an individual to the respondent during the period when an application for permission to appeal to the Court of Appeal could be made...

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