The Queen (on the Applicaton of Olufunke Adenike Akinola) v Upper Tribunal
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Richards,Lord Justice Stuart-Smith,Lord Justice Phillips |
| Judgment Date | 26 August 2021 |
| Neutral Citation | [2021] EWCA Civ 1308 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C4/2019/2154, C2/2019/1454 and C2/2019/2801 |
and
[2021] EWCA Civ 1308
Lord Justice Phillips
Lord Justice Stuart-Smith
and
Sir Stephen Richards
Case Nos: C4/2019/2154, C2/2019/1454 and C2/2019/2801
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
AND FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Arfan Khan (instructed by Dylan Conrad Kreole) for Ms Akinola
Russell Wilcox and Anas Khan (instructed by Thompson & Co) for Mr Abbas
Benjamin Hawkin (instructed by Paul John & Co) for Mr Alam
Lisa Giovanetti QC and Ben Keith (instructed by the Government Legal Service) for the Secretary of State
The Upper Tribunal did not appear and was not represented
Hearing dates: 13–14 July 2021
Approved Judgment
The Court has before it three applications for permission to appeal which have been listed together for a “rolled-up” hearing with appeals to follow if permission is granted. The central issues in all three cases concern the interpretation and effect of section 3C of the Immigration Act 1971 as amended (“the 1971 Act”), which provides for the extension of immigration leave in certain defined circumstances. They relate in particular to the position under section 3C where an application has been made for variation of existing leave, the application has been refused by a decision of the Secretary of State, and subsequently (i) there is an out-of-time appeal for which an extension of time is granted, or (ii) the Secretary of State withdraws and/or reconsiders the decision. The issues arise in the context of applications under paragraph 276B of the Immigration Rules for indefinite leave to remain on the ground of long residence. In each case the question whether leave was extended by the operation of section 3C is relevant to whether the applicant had accumulated the required “10 years continuous lawful residence in the United Kingdom”.
This judgment is structured as follows: (1) the legislative framework; (2) the facts of the individual cases; (3) a discussion of the main legal issues; (4) specific consideration of each of the individual cases in the light of that discussion, dealing at the same time with any separate points specific to the case; and (5) a summary of conclusions.
The legislative framework
Section 3C
We were provided with various materials on the background to and history of section 3C, including the position under section 14 of the 1971 Act as considered by the House of Lords in Suthendran v Immigration Appeal Tribunal [1977] AC 359, and the introduction of the Immigration (Variation of Leave) Order 1976 to protect the rights of an applicant who had submitted an application for an extension of leave to remain before the expiry of their existing leave but whose application could not be decided until after their existing leave had expired. That regime was replaced by the Immigration and Asylum Act 1999, section 3 of which inserted a new section 3C into the 1971 Act.
Section 3C itself has been subject to some amendment over the years but the core provisions have remained the same. They read 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 ….”
That wording is taken from the version in force from 31 August 2006 to 19 October 2014 (which covers the first period relevant to the three cases before us). In the version in force between 20 October 2014 and 30 November 2016 there was inserted a new sub-section (2)(d), whereby the leave is also extended by virtue of the section during any period when “an administrative review of the decision on the application for variation (i) could be sought or (ii) is pending”. An “administrative review” is defined in a new sub-section (7) and is a specific procedure which was not engaged on the facts of the present cases. In the version in force between 1 December 2016 and 30 January 2020 (which covers the last period relevant to the present cases), the only further change was the insertion of a sub-section (3A) whereby leave extended by virtue of section 3C may be cancelled if the applicant fails to comply with a condition attached to the leave or used deception in seeking leave to remain. Again, that provision is not engaged on the facts of the present cases.
Section 3C(1)(c) and (2)(a) refer to an application being “decided”. In R (Topadar) v Secretary of State for the Home Department [2020] EWCA Civ 1525, [2021] 1 WLR 2307, at [44], Lewis LJ (with whom the other members of the court agreed) held that “it is clear that an application seeking to vary an existing leave is decided within the meaning of section 3C(2)(a) of the 1971 Act when the application is refused” by the Secretary of State and that a subsequent administrative review operates as a review of the refusal decision, not as an extension of the decision-making process. Further, regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006 provides that for the purposes of section 3C an application for variation of leave is decided when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”); or where no such notice is required, when notice of the decision has been given in accordance with section 4(1) of the 1971 Act.
Section 3C(2)(c) refers to the time when an appeal is “pending” within the meaning of section 104 of the 2002 Act. Section 104(1) provides that an appeal under s.82 of that Act 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)”. Section 104(2) makes further provision as to when an appeal is “finally determined” for the purposes of section 104(1), but the section does not give any guidance as to when an appeal is “instituted”. Rule 19(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 provides that an appellant “must start proceedings by providing a notice of appeal to the Tribunal”; and rule 19(2) provides that if the person is in the UK “the notice of appeal must be received not later than 14 days after they are sent the notice of the decision against which the appeal is brought”. Rule 20 concerns the position where a notice of appeal is provided outside the time limit in rule 19. Whether an out-of-time appeal for which an extension of time is granted is “instituted” when the notice of appeal is filed or when the extension of time is granted is another of the issues raised in the present applications.
Paragraph 276B of the Immigration Rules
Paragraph 276B of the Immigration Rules reads, so far as material:
“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
…
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.”
The interpretation and effect of paragraph 276B were the subject of detailed consideration in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, [2020] 4 WLR 154. In summary, and so far as relevant here, it was held by the majority (Underhill and Dingemans LJJ) that the requirements in sub-paragraphs (i) to (v) are intended to be free-standing and self-contained; nonetheless, the provision for disregarding previous periods of overstaying in the second sentence of sub-paragraph (v) (“Any previous period of overstaying …”) is misplaced and is to be understood as applying when calculating whether an applicant has accumulated 10 years continuous lawful residence for...
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