The Queen (on the application of Swaitch) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill |
| Judgment Date | 24 January 2017 |
| Neutral Citation | [2017] EWCA Civ 163 |
| Date | 24 January 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2015/2239 |
[2017] EWCA Civ 163
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Underhill
Case No: C2/2015/2239
Mr M Biggs appeared on behalf of the Applicant
The applicant is an Indian national born on 9 April 1976. On 14 October 2010 he entered the UK with a visa valid until 1 October 2012. Leave to remain was subsequently extended to 25 January 2013. On 30 July 2012 he made an application for further leave to remain, but that was refused on 21 August 2013. He appealed to the First-tier Tribunal, but his appeal was refused on 5 March 2014. An application for permission to appeal to the Upper Tribunal was also. His time for applying to the Upper Tribunal itself expired on 12 April.
On 3 April 2014 the applicant made a fresh application for further leave to remain. The Home Office acknowledged receipt by letter dated 8 April 2014.
Some six weeks later, on 15 April, the Home Office refused to accept the application. Its reasons were as as follow. Section 3C (2) of the Immigration Act 1971 provides that where an applicant makes an in-time application for an extension of leave to remain, as the applicant did here, then leave to remain is automatically extended
"during any period when
(a) the application for variation is neither decided or withdrawn;
(b) an appeal under section 82(1) of the National 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 …".
There is also a subparagraph (d) which I need not read. Subsection (4) says: "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." The Home Office's position is that the applicant's appeal, which was of course an appeal under section 82 (1) of the 2002 Act, was still "pending" as at 3 April 2014 so that his section 3C leave was still in force, and accordingly that he falls within the terms of section 3C (4). It is necessary also to set out the relevant terms of section 104, as referred to in section 3C (2)(c). It reads (so far as material):
"(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 …
(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 Tribunal Courts Enforcement Act 2007 could be made or is awaiting determination;
(b) …
(c) …"
As at 3 April 2014 an application for permission to appeal under section 82 (1) "could have been made" because the time for making it had not yet expired. So, the argument goes, the appeal had not been finally determined and was accordingly still pending.
The applicant brought proceedings for judicial review of that decision. At an oral hearing on 12 June 2015 UTJ Clive Lane and UTJ Finch refused permission. They also refused permission to appeal to this court. I refused permission on the papers, but the application is now before me orally. Mr Michael Biggs of counsel appears for the applicant and has put the points available to him succinctly and forcefully. There are two grounds of appeal,...
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