Basir, R (On the Application Of) v Secretary of State for the Home Department [2018] EWCA Civ 2612

[2018] EWCA Civ 2612Case No C7/2016/1403
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE FREEMAN
JR74942014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/11/2018
Before
LORD JUSTICE McCOMBELADY JUSTICE KING DBELADY JUSTICE NICOLA DAVIES DBE
Between
THE QUEEN on the application of ALI BASIRAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Zane Malik (instructed by Mayfair Solicitors) for AppellantJack Anderson (instructed by Government Legal Department) for RespondentHearing Hearing date: 8 November 2018
Judgment ApprovedLady Justice Nicola Davies DBE:
[1]This is an appeal from the decision of the Upper Tribunal (“UT”) promulgated on 3 March 2016. The UT dismissed the appellant’s claim for judicial review seeking to challenge the decision of the Secretary of State for the Home Department (“SSHD”) of 17 March 2014 refusing his application for further leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant. Permission to appeal has been granted.

Factual background

[2]The appellant is a citizen of Pakistan, born on 26 November 1981. He was granted leave to enter the United Kingdom as a student on 7 February 2005 until 30 March 2006. Further periods of leave to remain as a student were granted which ended on 31 December 2010. On 15 January 2011 the appellant was granted further leave to remain as a Tier 1 (Post-Study Work) Migrant until 15 January 2013.[3]The appellant made an application for further leave to remain as a Tier 1 (Entrepreneur) Migrant on 19 December 2012. The SSHD refused that application on 8 May 2013; it was served on 15 May 2013. It is accepted by the parties that an application is decided when it is served. The appellant had until 24 May 2013 to appeal against the refusal, no appeal was instituted. The appellant then made a further application for leave to remain as a Tier 1 (Entrepreneur) Migrant on 22 May 2013. At the time he made the application the appellant was on leave extended under section 3C(2)(b) of the Immigration Act 1971 (“the 1971 Act”). The SSHD determined the application on its merits. It was refused on 18 June 2013 and the decision was served on 24 June 2013.[4]The appellant made another application for further leave to remain as a Tier 1 (Entrepreneur) Migrant on 11 July 2013. The SSHD refused that application on 17 March 2014. The SSHD gave two reasons for that decision: i) The appellant had overstayed in the United Kingdom for more than 28 days; ii) The appellant had not established that he was a genuine entrepreneur. In refusing the SSHD stated:
“Although your leave to remain expired on 15 January 2013 your leave was extended under section 3C of the Immigration Act 1971 until 24 May 2013. You did not submit this application for leave to remain until 11 July 2013. This was more than 28 days after your previous leave was extended by virtue of section 3C of Immigration Act 1971. In light of this the Secretary of State had deemed that refusal is appropriate under paragraph 245DD(g). You do not, therefore, meet the requirements specified in the Immigration Rules in order to be granted leave under the Tier 1 (entrepreneur) category.”
The refusal decision made no reference to the second application made on 22 May 2013.[5]The appellant sent a pre-action protocol letter to the SSHD on 28 April 2014. The SSHD responded to that letter and maintained his decision on 12 May 2014. The appellant issued the judicial review proceedings advancing two principal grounds before the UT: i) The SSHD had erred in law in holding that he had overstayed for more than 28 days; ii) The SSHD’s conclusion that he had not established that he was a genuine entrepreneur was unfair and irrational. The UT ruled against the appellant in relation to the first ground and, in the circumstances, did not find it necessary to consider and determine the second ground. In summary the UT held:
“18. … the Secretary of State in her final decision was fully entitled to take the view that the 22 May application had been invalid, as made by someone with s3C(2) leave only, and its invalidity could not be cured by the form of the 18 June decision on it.

(g) ”

Legal framework

[6]At the relevant time, section 3C of the 1971 Act provided automatic statutory extension of leave to remain in certain circumstances, namely: “(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).” (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. (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).[7]Paragraph 245DD(g) of the Immigration Rules sets out a requirement for further leave to remain as a Tier 1 (Entrepreneur) Migrant in these terms:
“The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.”

The appeal

[8]The issue on this appeal is whether an application for leave to remain which the applicant is not permitted to make by reason of section 3C(4) of the 1971 Act operates to extend the applicant’s leave under section 3C(2) of that Act because the Respondent refuses that application on its merits (which refusal is not challenged) rather than rejecting it as invalid.

The appellant’s case

[9]The appellant accepts that when he made his application for leave to remain on 22 May 2013 he was on leave extended pursuant to section 3C(2) of the 1971 Act. He also accepts that section 3C(4) restricts a person’s ability to make an application, however it is submitted, it does not restrict the SSHD’s ability to consider the application. The application remained with the SSHD for over 28 days before a decision on the merits was made. The SSHD was entitled to treat that application as a valid application and did so. Consequently, that application triggered leave under section 3C(2)(a) of the 1971 Act which ended on 24 June 2013 with the service of the SSHD’s decision of 18 June 2013. Further, between 24 June 2013 and 8 July 2013, the appellant was on leave extended under section 3C(2)(b) of the 1971 Act as he could have appealed the SSHD’s decision during that time. As a matter of law, his leave extended under section 3C of the 1971 Act, ended on 8 July 2013. Therefore, the gap between that date and 11 July 2013, when he submitted his fresh application, was three days. Thus, the UT erred in law in holding that the gap was over 28 days.[10]In oral submissions Mr Malik accepted that section 3C(4) provides no express power or discretion to the SSHD to grant leave to remain. However he contends that the same is to be found in section 3(1)(b) and section 3(3) of the 1971 Act. Neither provision is qualified by reference to section 3C(4) or to compliance with the Immigration Rules. Thus, section 3C(4) is not an absolute bar to the power of the SSHD to determine an application made in contravention of it.[11]Reliance was also placed upon the common law concept of unfairness. The SSHD had taken more than 28 days to make the decision of 18 June 2013. Fairness required that the SSHD should not now be permitted to take the time bar point in ruling on the third application. Had the SSHD made the determination within 28 days, pursuant to Rule 245DD, the appellant would have had 28 days to make a further application and so would not have contravened section 3C(4). Implicit in Mr Malik’s argument was a contention that, although not expressed in the 1971 Act or the Rules, there should be a 28-day period within which the SSHD must respond to such an application. He appeared to confine this point to the issue of validity of an application rather than the refusal of a valid but defective application.[12]The appellant relies on the decision of the UT in Kishver (Limited Leave: Meaning: Pakistan) [2011] UKUT 410; [2012] Imm AR 128. In that case, the appellant had failed to use the correct form in making her application for leave to remain, as a result it did not comply with Regulation 11 of the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 (“the 2003 Regulations”). The SSHD refused her application and indicated that there was no right of appeal. The appellant lodged a notice of appeal which was received by the First Tier Tribunal. It proceeded to hear the appeal without objection from the SSHD. On a reconsideration, the SSHD contended that there had never been a right of appeal.[13]The UT held that Regulation 12 of the 2003 Regulations permitted the SSHD to treat an invalid application as valid because, under Regulation 12(1)(b), a failure to comply with Regulation 11 would invalidate an application only if the SSHD notified the applicant. There was a statutory basis for concluding that the SSHD could, in effect, “condone” a failure to comply with Regulation. The SSHD had no power to confer a right of appeal in respect of an invalid application, however in treating her decision as one in respect of which there was a right of appeal, the SSHD had effectively treated the application as a valid application.[14]In my judgment the appellant’s reliance on the authority of Kishver does not assist. Section 3C(4) of the 1971 Act was not in issue in the case. Further, Regulation 12 of the 2003 Regulations permitted the SSHD to treat an invalid application as valid because pursuant to Regulation 12(1)(b) a failure to comply with Regulation 11 would invalidate an application only in the event that the SSHD notified the applicant. There was a clear statutory basis for concluding that the SSHD could in effect “condone” the failure to comply with Regulation 11. No such specific provision in the 1971 Act gives the SSHD the power to treat as valid an application made in contravention of section 3C(4).[15]The appellant also relies on the decision of the Court of Appeal in Anwar & another v Secretary of State for the Home Department [2010] EWCA Civ 1275 which concerned section 92 of the Nationality, Immigration and Asylum Act 2002. Section 92(1) provided:
“A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies”
[16]The issue before the Court was whether, if an immigration decision carried no in-country right of appeal but the First-Tier Tribunal nonetheless proceeded to hear the appeal, the SSHD could thereafter contend that there was no jurisdiction to entertain the appeal. The Court of Appeal held that the bar to an appeal under section 82 did not operate independently of the will of either party: it was a point which could be, but need not be, taken. Reliance is placed upon the opening words of section 92(1) of the 2002 Act as being not materially different from the opening words of section 3C(4) of the 1971 Act. The jurisdictional bar in these provisions is said to be of similar character.[17]The issue in Anwar was whether or not a tribunal had jurisdiction. That is distinct from the issue in this case. At [20] of the authority, the distinction between constitutive and adjudicative jurisdiction was recognised. Section 3C(4) does not operate as a “bar to justice” it imposes a limitation on the automatic extension of leave provided by section 3C. In her decision of 18 June 2013 the SSHD made no determination upon its validity. The appellant’s reliance upon this authority takes the matter no further.[18]The difficulty for the appellant is the Supreme Court decision in R (Iqbal, Mirza and Another) v Secretary of State for the Home Department [2017] 1 WLR 85 which considered the construction of section 3C of the 1971 Act. The court dismissed appeals in which the claimants had applied to vary their periods of leave to remain in the United Kingdom, in each case the application was made before the expiry of leave period but was procedurally defective. As a result the SSHD declared the applications invalid. The claimants reapplied for variation of leave after their original periods had expired. The SSHD considered the applications on the basis that the provisions of section 3C of the 1971 Act did not apply so as to automatically extend their existing leave to remain as their first application had been invalid. Since they no longer had leave to remain different and less favourable policies applied to their second applications which were rejected.[19]The principle issue in the appeals was the operation of section 3C where an application is made in time but, for some reason, is procedurally defective. In the judgment of the Supreme Court it is recorded that the Court of Appeal held that section 3C did not extend to an application which was not validly made in accordance with the Immigration Rules. Elias LJ, with whom the other Lord Justices agreed, stated at [14] that this had hitherto been assumed to be the effect of the Rules by all including the Court of Appeal. At [33] Lord Carnwath stated that the issues had to be approached by the application of the ordinary principles of statutory interpretation; they start from the natural meaning of the words in their context. He had no doubt that in the relevant appeals the Court of Appeal had reached the correct conclusion. Accordingly, it was held that an invalid application did not operate to extend leave under section 3C of the 1971 Act.

The respondent’s case

[20]The respondent accepts that, pursuant to section 3(1) of the 1971 Act, the SSHD has a discretion to grant leave, e.g. human rights claims which can, in some circumstances, be exercised in the absence of a specific application. This is not the position in this case. The appellant made a specific and narrow application, namely leave to remain as a Tier 1 (Entrepreneur) Migrant under the Points Based System (“PBS”).[21]The application was made pursuant to the provisions of section 3 of the 1971 Act which included section 3C. When the appellant made the 11 July 2013 application he did so in contravention of section 3C(4). The wording of section 3C(4) is clear, there is nothing in it which confers any discretion on the SSHD to determine as valid an application made in contravention of that section.[22]This is primary legislation. If such a discretion existed which had the effect of further extending any leave provided by section 3C(2) it would negate the provisions contained in section 3C(4). The policy behind the provisions, as recognised in the authority of Iqbal, is that there should at any time be only one live application, the purpose of section 3C(4) is to prevent an infinite number of applications for leave to remain.[23]It is accepted that when the appellant made his application it was in contravention of section 3C(4). In Kousar & Others v SSHD [2018] EWCA Civ 2462, which considered a challenge to the decision of the UT in respect of an application for further leave to remain as a Tier 1 (Entrepreneur), Irwin LJ stated at [38]:
“It is accepted that the PBS [Points-Based System] system is as I have described it above: detailed, objective and bureaucratic. It is intended to reduce the exercise of discretion. The system promotes clarity over flexibility. These characteristics are congruent with a system which must cope with a very large number of applications handled by officials who are trained, but are not lawyers. As was said by Underhill LJ in Mudiyanselage: ‘56. …The clear message of those authorities, including Mandalia, is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process. It is important not to lose sight of the fact that the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed: though that may sometimes require a good deal of care and attention to detail, because of the regrettable complexity of the Rules, it will normally be possible to get it right.’” ‘56. …The clear message of those authorities, including Mandalia, is that occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process. It is important not to lose sight of the fact that the responsibility is on applicants to ensure that the letter of the requirements of the PBS is observed: though that may sometimes require a good deal of care and attention to detail, because of the regrettable complexity of the Rules, it will normally be possible to get it right.’”
[24]As to the appellant’s contention that in respect of a validity determination there should be a 28-day limit, there is no valid distinction in terms of any proposed time bar between a decision declaring an application invalid and a refusal on the merits. It makes no sense to have a time bar for one and not the other.

Conclusion

[25]The application made by the appellant on 11 July 2013 was narrow in its ambit, it was to obtain further leave to remain as a Tier 1 (Entrepreneur) Migrant. It could only be granted if it met the specific requirements of the 1971 Act and the Immigration Rules which included the requisite number of points. From the outset the application was invalid, being made in contravention of section 3C(4) of the 1971 Act.[26]The application of section 3C(4) represents the law, it is not dependent upon any decision taken by the SSHD. There is no discretion or power expressed within section 3C(4) which confers upon the SSHD a power to waive the prohibition it lays down. Section 3C(4) is clear in its terms. It would be contrary to the language and purpose of section 3C(4) to hold that an application made contrary to it nonetheless operates to extend leave under section 3C(2). Its purpose is to prevent abuse of the system by the making of successive applications and to ensure that there is only one application to vary leave at any one time. It was a situation envisaged by the court in Iqbal when it held that an invalid application did not operate to extend leave under section 3C(2).[27]The SSHD had no power to waive the prohibition contained in section 3C(4) of the 1971 Act, there was no considered decision to do so. As of 24 May 2013 the appellant’s section 3 leave came to an end. Nothing the SSHD did after 22 May 2013 could alter that fact.[28]Accordingly, the determination of the UT was correct; this appeal fails.

Lady Justice King DBE:

[29]I agree.

Lord Justice McCombe:

[30]I also agree.

Cited in 1 later judgment