Saqib Zia Khan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Underhill |
| Judgment Date | 08 June 2017 |
| Neutral Citation | [2017] EWCA Civ 424 |
| Docket Number | Case No: C7/2015/2241 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 June 2017 |
[2017] EWCA Civ 424
Lord Justice Gross
and
Lord Justice Underhill
Case No: C7/2015/2241
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UTJ O'Connor
Royal Courts of Justice
Strand, London, WC2A 2LL
Rowan Pennington-Benton and Julia Lowis (instructed by Farani Javid Taylor) for the Appellant
Zane Malik (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 16 May 2017
Approved Judgment
THE ISSUE AND THE PROCEDURAL HISTORY
The issue on this appeal is comparatively narrow, but it arises out of a particular situation which occurs quite frequently in connection with applications by non-nationals for leave to remain in the UK and which has generated a number of cases in the First-tier and Upper Tribunals. I will set out the essentials of the situation in generic terms – what I will call the paradigm case – before turning to the facts of the instant case. In doing so I will refer to the law as it stood in 2013, which is the relevant date for our purposes; but it should be noted that it has since changed in some important respects.
The essential factual elements of the paradigm case are as follows:
(1) C, a non-national with limited leave to remain, applies for an extension of his period of leave. The extension may be on the same basis as the original leave, e.g. a student wishing to continue their studies, or on a different basis, e.g. a student who has married a U.K. national: in either case the legislation describes it as a "variation". He makes the application before the expiry of his current period of leave. I will call this application "A1".
(2) The Secretary of State rejects A1 because of an asserted technical invalidity, e.g. non-payment of the fee or failure to supply required information or documents.
(3) The rejection is, or is arguably, ill-founded – either because it was on an incorrect factual basis (e.g. the documents had in fact been supplied) or because it was unlawful for some other reason (e.g. breach of a flexibility policy or of the common law duty of fairness).
(4) There is no right of appeal, since a rejection of this kind does not constitute an "immigration decision" 1. C could in principle challenge it by way of judicial review; but he takes the more pragmatic course of re-submitting the application and correcting the alleged error. I will call this application "A2".
(5) Because of the interval between the lodging of A1 and the Secretary of State's rejection of it, which will typically be months rather than weeks, C's current leave has (subject to the point considered at para. 3 below) expired by the time he lodges A2. This is potentially significant for his right of appeal if A2 is refused: that is because the right of appeal under section 82 (2) (d) of the Nationality Immigration and Asylum Act 2002 only applies where the applicant has leave to remain at the time that the
application was made: see SA (Section 82 (2) (d): interpretation and effect) Pakistan [2007] UKAIT 83.(6) The Secretary of State considers A2 and refuses it on the merits.
(7) The Secretary of State is obliged by regulation 5 (3) of the Immigration (Notices) Regulations 2003 ("the Notices Regulations") to include in the notice of decision a statement of any right of appeal. The decision notice communicating the refusal of A2 contains a statement that C has no right of appeal because the application was made at a time when he had no leave to remain – see (5) above.
The question is what are C's rights in that situation. On the face of it the Secretary of State's statement that he has no right of appeal is correct, for the reason given in the notice. However, in Basnet (Validity of application – respondent) [2012] UKUT 00113 (IAC) the UT (Blake J and UTJ Macleman) identified an important qualification. Section 3C (1)-(2) of the Immigration Act 1971 provides that, where an application to vary leave to remain is made during the currency of existing leave, leave is automatically extended until that application is finally disposed of: I refer to this as "3C leave". Accordingly, if the Secretary of State was indeed not entitled to reject A1, C still enjoyed leave to remain at the point that he lodged A2 and is entitled to a right of appeal after all. The result is that whether there is a right of appeal against the refusal of A2 depends on the validity of the rejection of A1. This issue, i.e. whether C has a statutory right of appeal because he has 3C leave, was referred to before us as "the jurisdiction issue".
The primary question raised by this appeal concerns the forum in which the jurisdiction issue should be decided. The Appellant's case is that it should, or in any event can, be determined in judicial review proceedings in the UT. The Respondent's case is that C must seek to appeal to the FTT, which will then itself determine the issue in order to decide whether it has jurisdiction to entertain the appeal. But before I consider that question I should set out the facts, and the procedural history, of the present case. It will be seen that we are in the same area as the paradigm case, but that there are peculiar features which may affect the legal analysis.
As for the facts, they can be sufficiently summarised as follows:
(1) The Appellant is a national of Pakistan. He came to this country on a student visa in July 2007. His leave was subsequently extended to 30 July 2012.
(2) On 4 April 2012 he applied for leave to remain as a Tier 1 (Post Study Work) Migrant: I call this "the April application". At that stage he was awaiting a decision about his degree, and in the covering letter he asked for that decision to be deferred until he could receive the degree certificate. 2 The application required payment of a fee, and for that purpose he supplied his credit card details.
(3) UKBA did not on receipt of the application promptly apply for the card payment. On 2 May 2012 the Appellant's solicitors, Farani Taylor, now Farani Javid Taylor, ("FT") wrote to point out that the card of which he had supplied details had expired at the end of April: they asked UKBA to contact them as soon as possible "in order to allow us to provide you with new card details in a secure manner".
(4) In the event there were difficulties about the completion of the Appellant's degree. On 27 July 2012, i.e. a few days before his current leave was due to expire, he applied for 60 days' leave on an exceptional basis: I call this "the July application". It appears from FT's covering letter that he was intending to apply to take a different course but that for that purpose he needed to be able to show the college that he had current leave to remain.
(5) The July application itself required to be accompanied by a fee. However, payment was not included with it, nor were credit card details provided on the form. It seems that UKBA attempted nevertheless to obtain payment, using the credit card details supplied in the April application, but the attempt was unsuccessful because, as it had been warned was the case, the card had expired. On 24 September UKBA wrote to FT rejecting the application on the basis that it had not been accompanied by payment of the fee.
(6) On 20 November 2012 FT wrote to UKBA pointing out that the problem of non-payment could have been avoided if it had asked for fresh credit card details as previously offered. However, they submitted a further copy of the July application with the credit card details completed: I call this "the November application".
(7) The November application was refused on the merits by a decision letter dated 24 May 2013. The decision notice informed the Appellant that he had no right of appeal.
It will be seen that those facts conform to the paradigm in as much as the July application was made during the currency of the Appellant's original (extended) leave, so that if the Secretary of State's rejection of that application was unlawful he still enjoyed "3C leave" at the time that he made the November application. The July application corresponds to "A1" and the November application to "A2". Mr Rowan Pennington-Benton, who appears for the Appellant with Ms Julia Lowis (as he did in the UT), is constrained to acknowledge that the July application was defective because it did not include any credit card details, but he would if necessary submit that it was
nevertheless unfair of UKBA to reject it on that basis when they could and should have applied for up-to-date details as invited by FT (see para. 5 (5) above). However, there is in this case the additional feature of the April application, which has no equivalent in the paradigm case. That application had never been determined, nor was there any challenge to its validity; and accordingly, Mr Pennington-Benton would argue, he can rely on it as generating 3C leave and thus has no need to rely on arguments about the lawfulness of the rejection of the July application (which, though he made no concessions, I think he recognised would face real difficulties). To that extent this case differs from Basnet.On 22 August 2013 the Appellant issued judicial review proceedings. The decision challenged was the decision of 24 May 2013, i.e. the refusal of the November application, but it was made clear in the grounds that what was in fact challenged was not the refusal on the merits but the denial of a right of appeal, which turned, for the reasons explained above, on whether he enjoyed 3C leave as at the date of the application – in other words, it raised the jurisdiction issue.
After an initial refusal on the papers, permission was granted by UTJ Freeman at an oral hearing, at which the Respondent was represented by counsel, on 8 August 2014.
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