Upper Tribunal (Immigration and asylum chamber), 2019-10-30, JR/07887/2018

JurisdictionUK Non-devolved
Date30 October 2019
Published date05 November 2019
Hearing Date18 July 2019
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberJR/07887/2018

Case Number: JR/7887/2018

IAC-FH-LW-V4


IN THE UPPER TRIBUNAL



JR/7887/2018


Field House,

Breams Buildings

London

EC4A 1WR



18 July 2019



The QUEEN

(ON The application OF)

md safiul alam topadar

Applicant



and



THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Before


UPPER TRIBUNAL JUDGE ALLEN



‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑


Mr M Biggs, instructed by Hubers Law Solicitors appeared on behalf of the Applicant.


Mr W Hansen, instructed by the Government Legal Department appeared on behalf of the Respondent.



‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑

ON AN APPLICATION FOR JUDICIAL REVIEW


APPROVED JUDGMENT

‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑



JUDGE allen:

1. The applicant challenges the Secretary of State’s decision of 27 September 2018 refusing to grant him leave to remain under Tier 2, a decision which was upheld on administrative review on 31 October 2018. The applicant also seeks a declaration that his current status is that of a person with section 3C leave.

2. Permission to apply for judicial review was granted at an oral hearing by Lang J on 7 March 2019.

3. There are two grounds of challenge. The first of these concerns the nature of administrative review and its relationship with section 3C of the Immigration Act 1971. The second issue is a point on procedural fairness.

Chronology

4. The relevant facts and dates in this case are as follows. The applicant was granted leave to enter the United Kingdom as a Tier 4 (General) Student on 19 November 2009. He was granted further subsequent periods of leave up to 6 July 2016. On 6 July 2016 he made an application in time for FLR(O). On 22 August 2016 he applied for leave to remain as a Tier 2 (General) Migrant. On 24 August 2016 he submitted a letter to the Home Office varying his FLR(O) application to a Tier 2 (General) application.

5. On 7 August 2018 a request was made by the respondent for further information from the applicant’s sponsor. The deadline for a response to that letter expired on 14 September 2018 without a response.

6. On 27 September 2018 the applicant was refused leave to remain as a Tier 2 (General) Migrant with a right to administrative review. He applied for administrative review on 8 October 2018.

7. On 18 October 2018 the applicant sent a letter to the Home Office requesting leave to remain on the basis of Article 8. The administrative review was concluded on 31 October 2018, maintaining the decision of 27 September.

8. The essential argument of the applicant is that the letter of 18 October amounted to a variation of an outstanding application for further leave to remain and hence the respondent erred by failing to appreciate that the administrative review had become otiose as it had been taken over by the variation of the application for leave to remain which resulted in the decision of 27 September 2018. As a consequence it is argued that that application remains outstanding and that the applicant has leave to remain by virtue of section 3C of the Immigration Act 1971. It is in particular argued that the application of 18 October 2018 was a human rights claim which amounted to a variation of a pending application for further leave to remain for the purposes of section 3C(4) and (5) of the Immigration Act 1971.

9. As regards the second ground, it is argued that the decision was procedurally unfair because the Secretary of State acted unfairly and exercised a discretion under paragraph 77J of Appendix A of the Immigration Rules unlawfully in not extending the time granted to the sponsor to provide the further documents requested in the letter of 7 August 2018 and in not giving the applicant notice that a request of information had been sent to the sponsor, not notifying him of the timeframe that had been identified for a response and failing to inform him of the possible result if this was not responded to. In addition it is argued that the applicant should have been informed in advance of the decision of 27 September 2018 that the request had not been complied with.

Submissions

10. In his written and oral submissions Mr Biggs argued that the letter of 18 October 2018 amounted to a variation of a pending application for further leave to remain for the purposes of section 3C(4) and (5) of the Immigration Act 1971. He noted what had been said in JH (Zimbabwe) [2009] EWCA Civ 78 including the point made at the end of paragraph 35 that: “once a decision has been made, no variation to the application is possible since there is nothing left to vary”. He argued that that was not an obstacle in the instant case.

11. With regard to the nature of administrative review, Mr Biggs argued that the power to decide or refuse an application for administrative review is provided by sections 3A-3B and 4 of the 1971 Act. On that basis the administrative review process is simply an extension of the decision-making application process available when an application for leave or further leave has been made. He argued that as a consequence until the administrative review process is concluded the application for leave which underlines it remains outstanding, albeit that an initial, necessarily inchoate decision to refuse that application has been taken. Unlike the situation in JH, which was decided before the abolition of appeal rights in the 2014 Act and the introduction of the administrative review process, when an application for administrative review is pending there must necessarily be something left to vary for the purposes of section 3C(5) of the 1971 Act.

12. He supported his argument by reference to paragraph 2.2 of Appendix AR of the Immigration Rules which provides that on administrative review the presumptive refusal of the application for leave under consideration can be “withdrawn” or, where the initial decision is upheld, the basis of that decision can be modified by providing further or fresh reasons for the decision. Paragraph 34N(2) of the Immigration Rules provides also that where the decision is upheld but for new reasons there is a further right to administrative review.

13. Mr Biggs argued that those features of the administrative review process strongly indicated that while an administrative review was pending so too was the underlying application for leave. If this were not so, he argued, it was impossible to understand how the administrative reviewer could remake the review decision in the applicant’s favour or maintain the refusal but for new and potentially fundamentally different reasons. He argued that this confirmed that administrative review was simply an extension of the underlying application process.

14. Mr Biggs referred also to paragraph 34X(4) of the Immigration Rules which states that an application for administrative review which has not been determined will be treated as withdrawn if the applicant makes an application for entry clearance, leave to enter or leave to remain. He argued that when this was read together with paragraphs 34BB(1) and (2), it was consistent with the argument that it was possible to vary an application for leave to remain while an administrative review of the decision presumptively deciding that application was pending and that indeed in respect of an application for administrative review which had triggered an extension of leave by section 3C(2)(d), Rule 34X(4) could only work on this basis. He argued that it must follow that the words “an application for entry clearance, leave to enter or leave to remain” in paragraph 34X(4) must, by Rule 34BB(2), be read to mean “a variation of an application …”. Mr Biggs argued that paragraph 34X(4) when read with paragraph 34BB(2) could not work if by section 3C(2)(d) and (4) an application made while an administrative review was pending was invalid. There would in that situation be no “application” to trigger the withdrawal of the application for administrative review because the “application” was invalid ab initio. It would not be appropriate to read the word “application” as including “invalid application”. A nullity would have the effect of ending the extension of leave under section 3C and involved depriving a migrant of the benefit of administrative review.

15. With regard to the arguments made by Mr Hansen in reliance upon paragraphs AR2.10(b) and AR2.6 of Appendix AR, it was argued that paragraph AR2.6 was irrelevant since the result of the applicant’s argument was that the administrative review had been overtaken as a result of the variation of the continuing application which occurred while the administrative review was pending. The administrative review should therefore be treated as having been withdrawn and the varied application should have been decided in lieu of the administrative review.

16. As regards paragraph AR2.10(b), this would not apply, as it referred to a “fresh application” rather than a “variation” of a pending application which was in fact the case. The retrospective effect of AR2.10(b) could not make an application for leave to remain which was at the time it was made invalid by section 3C(4)...

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