JH (Zimbabwe) v Secretary of State for the Home Department

I propose to grant permission to appeal in this case. I do so not without misgivings, especially given the emphatic terms in which Buxton LJ refused permission on the papers. But since then there has been a change of counsel and a fundamentally revised skeleton argument, bringing the issues in the case into a new focus.

The appellant entered the United Kingdom as a visitor in October 2004. Before the expiry of her leave in March 2005, she applied for leave to remain as the spouse of a person settled in the United Kingdom. The difficulty with which the court is now concerned arose out of the fact that she used a prescribed application form for indefinite leave to remain for which she plainly did not qualify, rather than the form for limited leave to remain. This was spotted by the Home Office which sent her the correct form. She then submitted the correct form but only after her original leave to enter would in the normal course have expired. By Section 3C of the Immigration Act 1971, as amended, her original leave to enter was extended only if she applied to vary it before the date when it expired.

The issues to which all this gives rise are, in short, whether the application for indefinite leave to remain as a spouse was a valid application, and, if so, whether the subsequent application for limited leave to remain could be treated as a variation of it, in which case her leave was extended by virtue of Section 3C until such time as a decision was made on the application as varied and any appeals process was exhausted.

That there was a potential problem was spotted only late in the day by Senior Immigration Judge Spencer, on a reconsideration, after there had already been one decision on the reconsideration but that decision had been set aside by the Court of Appeal, by way of a consent order, and the case had been remitted to the Tribunal. Because the issue was one of jurisdiction, the Senior Immigration Judge had to take it despite a degree of reluctance even on the part of Home Office for the matter to be dealt with in that way so late in the proceedings.

The Senior Immigration Judge held that the application for indefinite leave to remain as a spouse was invalid, because the appellant could not supply documents specified in the form and thus comply with the requirements of paragraph 32 of the Immigration Rules. If that conclusion was right, that is an end of the matter. It seems to me, however, that the appellant has an arguable case that the conclusion was wrong. Section 31A of the 1971 Act, as amended, requires an application to be made in the form prescribed by regulations, and other procedural steps to be taken as prescribed. The power to make regulations under the section is exercisable only by statutory instrument. The relevant statutory instrument is the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003.

The appellant, on the first occasion, used the form prescribed by those regulations for indefinite leave to remain. The fact that the application was bound to fail because she could not meet the conditions for indefinite leave did not, on the face of it, render the application invalid. Failure to provide the required documents is capable of invalidating an application, but that is all covered by specific provisions in regulations 11 and 12. Regulation 11 includes requirements as to the provision of documents. Regulation 12 provides that a failure to comply with those requirements to any extent will only invalidate an application if certain conditions apply, including that the Secretary of Sate notifies the applicant of a failure and the applicant does not comply within a specified period. None of that happened in this case. The Secretary of State simply treated the application as invalid from the outset. Of course, had the Secretary of State duly notified the appellant, the outcome was inevitable and the application would have been rendered invalid; but in circumstances where the regulations specify that the application will be invalidated only if certain conditions are met, and those conditions were not in fact met, it seems to me to be arguable that it was not invalidated in this case.

It is also necessary to factor in the effect of paragraph 32 of the Immigration Rules, which provides that all applications for variation of leave must be made using the prescribed form, accompanied by the documents specified in the form, and that an application for such a variation made in any other way is not valid. The interaction between that and the regulations made by statutory instrument needs to be considered. I am not prepared at the permission stage to conclude that paragraph 32 renders an application invalid even where the specific conditions for invalidity under the regulations are not met.

If the application for indefinite leave to remain was valid, the question arises whether it was varied by the subsequent out-of-time application for limited leave to remain. The Senior Immigration Judge did not decide that issue, since he held the first application to be invalid. But he did refer in his decision to a passage from DA (Section 3C - meaning and effect) Ghana [2007] UKAIT 00043, in which a highly restrictive approach was adopted towards what can count as a variation; and on the basis of that reasoning it would seem that the application for limited leave could not be treated as a variation of the application for indefinite leave. The appellant challenges that reasoning, and it seems to me that the points advanced merit consideration by this court rather than being dealt with summarily at the permission stage. The points arise in the context of a statutory provision, Section 3C of the 1971 Act, which precludes an application for variation of leave while that leave is extended by virtue of the section, but expressly does not prevent the variation of an application made before the original leave has expired.

Those are not the totality of the submissions made by Mr Cox on the appellant’s behalf, but provide a sufficient basis for indicating why I think that the substance of the case merits the grant of permission.

There is a final issue, concerning the jurisdiction of this court to entertain the appeal at all. The Senior Immigration Judge, having found that there was no valid application before the Secretary of State, concluded that the Tribunal had no power to entertain an appeal, and held that he was obliged by Rule 9 of the AIT (Procedure) Rules 2005 to take no further action. It is doubtful whether an appeal lies from that decision to this court under Section 103B of the Nationality Immigration and Asylum Act 2002, which is the section conferring jurisdiction in respect of appeals on a point of law following a reconsideration by the Tribunal. In particular, Section 103B(1) provides that where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court. Can it be said in this case that the appeal was one which “has been reconsidered”, in circumstances where the decision ultimately reached was that there was no jurisdiction to entertain the appeal at all and that under Rule 9 the Tribunal should take no further action? If no appeal lies, then judicial review would presumably lie, and the appellant has launched an application for judicial review on a precautionary basis. Again, however, I am reluctant to determine a jurisdictional issue of this kind on a summary basis at the permission stage. I think it better that the matter be considered by the full court.

For all those reasons I grant permission.