The Secretary of State for the Home Department v Waqar Ali
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lord Justice Arnold,Lady Justice Andrews |
| Judgment Date | 14 September 2021 |
| Neutral Citation | [2021] EWCA Civ 1357 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C6/2020/1423 |
[2021] EWCA Civ 1357
Lady Justice Simler
Lord Justice Arnold
and
Lady Justice Andrews
Case No: C6/2020/1423
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Upper Tribunal Immigration and Asylum Chamber
Upper Tribunal Judge Craig
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Zane Malik QC (instructed by Government Legal Department) for the Appellant
Mr Rashid Ahmed and Mr Zeeshan Raza instructed by (Marks & Marks Solicitors) for the Respondent
Hearing date: 21 July 2021
Approved Judgment
Introduction
This appeal concerns a narrow question of construction of the phrase “in-time” for the purposes of paragraph 39E(2) of the Immigration Rules in the context of applications for leave to remain in the United Kingdom. The question arises in relation to the Tier 1 (Entrepreneur) Migrant route but applies equally to many other leave to remain routes where applications for leave are made after the expiry of existing leave.
Where paragraph 39E applies “ any current period of overstaying will be disregarded” when deciding whether the requirements that must be satisfied for the particular leave route chosen are satisfied. Paragraph 39E applies in two situations: under subparagraph (1) where the leave application is made within 14 days of expiry of leave and there was good reason why the application could not be made “in-time”; or under subparagraph (2) where the application was made following the refusal of a previous “in-time” application and within a prescribed time period. It is common ground that subparagraph (1) does not apply in this case. The question raised by the appeal is whether “in-time” in paragraph 39E(2) simply means before the expiry of a person's leave as the appellant, the Secretary of State for the Home Department (“the SSHD”) contended; or whether, in a case where the Immigration Rules provide for or permit an application to be made within a period of up to 28 days after the expiry of a person's leave, the additional 28-day period is also in-time for these purposes, as the respondent contended and as the judge found below.
Mr Ali, the respondent to the appeal, is a national of Pakistan. He came to the UK in January 2010 with entry clearance as a student and his leave to remain was extended several times. Thereafter, Mr Ali made a series of applications for leave (dealt with in more detail below) but all were refused. Following the refusal, dated 6 March 2019, of an application for administrative review, Mr Ali sought judicial review. Following a hearing on 3 February 2020 by a decision dated 10 July 2020, the Upper Tribunal (Immigration and Asylum Chamber) (UTJ Craig) granted judicial review and quashed the decision of the SSHD refusing to grant his application for leave to remain. This appeal is a challenge to that decision.
Mr Zane Malik QC appeared for the SSHD and Mr Rashid Ahmed and Mr Zeeshan Raza appeared for Mr Ali. I am grateful to all counsel for their helpful submissions.
Sequence of applications
Although the background facts are not relevant to the resolution of the appeal, it is necessary to understand the sequence of applications made by Mr Ali in order to address the arguments advanced by the parties.
Mr Ali was last granted leave on 8 March 2013 to remain in the UK as a Tier 1 (Post-Study) Migrant valid until 8 March 2015. Before the expiry of his leave, on 27 February 2015, he made an in-time application as a Tier 1 (Entrepreneur) Migrant (“application 1”). This was refused on its merits by a decision dated 8 May 2015, the SSHD finding that he was not a genuine business person. The decision letter of 8 May 2015 set out his in-country appeal rights, the fact that his previous leave would be extended until such time as any appeal was resolved, and that any new application should be made “ before your current leave expires”.
Mr Ali exercised his appeal rights by appealing to the First-tier Tribunal (“the FTT”). There was a hearing at which he gave oral evidence and was cross-examined. By a decision dated 23 March 2016 his appeal was dismissed and he was refused permission to appeal both by the FTT and, on renewal, by the Upper Tribunal (“the UT”) by a decision dated 14 October 2016. It is common ground that having continued to be lawfully present pursuant to section 3C Immigration Act 1971 (“3C leave”) until this decision, on 14 October 2016 he became appeal rights exhausted and his 3C leave came to an end. From that date his presence in the UK was without leave and he was in breach of immigration law by remaining here.
Mr Ali did not leave the UK. Instead, on 9 November 2016 (just less than 28 days after the expiry of his leave), he made a fresh application to remain, still as a Tier 1 (Entrepreneur) Migrant (“application 2”). The SSHD disregarded the period of overstaying between 14 October and 9 November 2016 (in accordance with the Immigration Rules as they stood at that time) because it was a period of less than 28 days and dealt with the application on its merits. However, by a decision dated 6 January 2017, application 2 was refused by the SSHD. Again Mr Ali was warned of his liability to detention and removal and of the consequences of illegally overstaying. He did not leave but instead, applied for administrative review. The refusal decision was maintained on administrative review by a decision dated 16 February 2017, though not served until 18 February 2017. The letter made clear that Mr Ali should leave the UK, failing which he would be liable to be detained and removed. It also set out in detail the consequences of illegally staying in the UK.
Within 14 days of the 18 February decision, on 4 March 2017, Mr Ali made a fresh application for leave as a Tier 1 (Entrepreneur) Migrant (“application 3”). Application 3 was refused by a decision dated 28 January 2019 which again set out the consequences of illegal overstaying. The basis for this refusal was paragraph 245DD(g) of the Immigration Rules which excludes those who have overstayed after the expiry of their leave unless one of the exceptions in paragraph 39E of the Immigration Rules applies. The SSHD concluded that none of the exceptions in paragraph 39E applied to Mr Ali's current application: paragraph 39E(1) did not apply because the application was not made within 14 days of the expiry of his 3C leave on 14 October 2016; and paragraph 39E(2) did not apply because his application was not made within 14 days of the refusal of an “in time application” or the refusal of an application to which paragraph 39E(1) had been applied. Although the letter appears to have awarded maximum points under each relevant heading, it also stated that the SSHD had not carried out an assessment in line with paragraph 245DD(o) as detailed in paragraph 245DD(h) of the Immigration Rules.
Again Mr Ali did not leave following receipt of that decision. Rather, by letter dated 6 February 2019 he sought a review of the decision to refuse application 3. By a decision dated 6 March 2019, the SSHD maintained the refusal decision for the same reasons. The SSHD explained that application 1 was in time and had been refused on its merits. The fact that Mr Ali was an overstayer was disregarded for the purposes of application 2 because the application was made within 28 days of the earlier refusal. By the time of application 3 Mr Ali was an overstayer for 5 months and his current application had been refused accordingly.
The Legal Framework
Section 1 of the Immigration Act 1971 (“the 1971 Act”) provides that people who have a right of abode in the United Kingdom may come and go freely, but that those who do not may only do so, and live, work and settle in the UK by permission and subject to such restrictions and controls as are imposed by the 1971 Act. For those without a right of abode in the UK, section 1(4) recognises that the SSHD lays down rules as to the practice to be followed for regulating their entry into and stay in the UK. The requirement to have a grant of leave to enter or remain in accordance with the provisions of the 1971 Act for persons who are not British citizens is provided for by section 3(1) of that Act.
Section 3C of the 1971 Act automatically extends a person's leave to remain in certain circumstances. So far as relevant, it provides:
“(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,
…
(d) an administrative review of the decision on the application for variation –
(i) could be sought, or
(ii) is pending.”
The Immigration Rules are made by the SSHD under section 3(2) of the 1971 Act which provides for the SSHD to:
“lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…”.
The conditions for leave to remain as a Tier 1 (Entrepreneur) Migrant are in paragraph 245DD of the Immigration Rules. This paragraph identifies a series of cumulative requirements that must be met in order to qualify for leave to remain under this route. So far as relevant to this appeal, it provides:
“To qualify for leave to remain as a Tier 1 (Entrepreneur) Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these...
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