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

JH, a citizen of Zimbabwe, 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 here. The difficulties with which the court is now concerned arise out of the fact that she used the prescribed form for an application for indefinite leave to remain, for which she plainly did not qualify, rather than the form for limited leave to remain which was better suited to her case. This was noticed by the Home Office, which sent her the correct form. She completed and returned the correct form and in due course the Secretary of State reached a decision refusing to grant limited leave. The notice of decision accepted that there was a right of appeal against the decision, including an appeal on human rights grounds. An appeal was lodged and was allowed by an immigration judge by reference to article 8 ECHR. The Secretary of State then applied for and obtained an order for reconsideration, and on the reconsideration the tribunal found a material error of law in the first immigration judge’s decision and substituted a fresh decision dismissing JH’s appeal. But that decision, in turn, was set aside on a consent order by the Court of Appeal, which remitted the case for reconsideration by a differently constituted tribunal.

The matter then came before Senior Immigration Judge Spencer (“the SIJ”) who for the first time in the proceedings, and of his own motion, took a jurisdictional point. He held that JH’s application for indefinite leave to remain was invalid and that her second application, for limited leave to remain, could not be treated as a variation of the first application since only a valid application can be varied. The second application therefore stood alone. Since it was made after the time when JH’s original leave to enter had expired, s.3C of the Immigration Act 1971 (“the 1971 Act”) did not operate in the circumstances to extend her original leave. This had the further consequence that JH had no right of appeal under s.82(1)(d) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) against the Secretary of State’s decision refusing her leave to remain, and the tribunal had no jurisdiction to entertain her appeal. The SIJ stated that the tribunal was obliged by rule 9(2)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the Procedure Rules”) to take no further action. His decision, expressed as a decision that JH had no right of appeal, was promulgated on 19 September 2007.

JH’s challenge to the SIJ’s decision comes before us in two different ways: first, as an appeal, for which purpose we are constituted as the Court of Appeal; and, secondly, as an application for permission to apply for judicial review, for which purpose we are constituted as a Divisional Court. The dual procedure was adopted because there is an issue as to the Court of Appeal’s jurisdiction to entertain an appeal against a decision of this kind. I think it appropriate to decide at the outset whether we are exercising an appellate jurisdiction or a first instance supervisory jurisdiction. I therefore turn at once to consider that issue.

It is the Secretary of State who contends that there is no right of appeal to the Court of Appeal against the SIJ’s decision. In order to consider that contention, it is helpful first to set out rule 9 of the Procedure Rules, to which the SIJ referred, and the provisions of the 2002 Act governing reconsiderations and further appeals to the Court of Appeal.

Rule 9 of the Procedure Rules provides:

“9.(1) Where (a) a person has given notice of appeal to the Tribunal; and (b) there is no relevant decision, the Tribunal shall not accept the notice of appeal.

(2)

Where the Tribunal does not accept a notice of appeal, it must (a) notify the person giving the notice of appeal and the respondent; and (b) take no further action.”

I note that rule 9 is in part 2 of the Procedure Rules, whereas the rules relating to reconsiderations are in part 3; and rule 9 is not one of the part 2 rules that are applied by rule 29 to proceedings for reconsideration.

The tribunal’s power to reconsider one of its decisions and the right to bring a further appeal to the Court of Appeal following a reconsideration by the tribunal are governed respectively by ss.103A and 103B of the 2002 Act, which provide in material part:

“103A. Review of Tribunal's decision

(1)

A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.

(2)

The appropriate court may make an order under subsection (1) -

(a)

only if it thinks that the Tribunal may have made an error of law, and

(b)

only once in relation to an appeal.

…

(7)

In this section a reference to the Tribunal's decision on an appeal does not include a reference to –

(a)

a procedural, ancillary or preliminary decision, or

(b)

a decision following remittal under section 103B ….

…

103B. Appeal from Tribunal following reconsideration

(1)

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.

(2)

In subsection (1) the reference to reconsideration is to reconsideration pursuant to -

(a)

an order under section 103A(1), or

(b)

remittal to the Tribunal under this section ….

…

(4)

On an appeal under subsection (1) the appropriate appellate court may -

…

(c)

remit the case to the Tribunal ….”

For the Secretary of State, Mr Beer submits that the SIJ’s decision was not a decision taken after reconsideration of the appeal, so as to engage a right of appeal under s.103B(1), but was taken pursuant to rule 9 of the Procedure Rules and was a procedural or preliminary decision within the meaning of s.103A(7). Although the case had been remitted by the Court of Appeal for a fresh reconsideration, what happened thereafter was that the SIJ expressly declined to reconsider the case, on the ground that the tribunal lacked jurisdiction to accept the appeal in the first place. Mr Beer seeks to reinforce his case by policy arguments, contending that Parliament must have intended that tribunal decisions on procedural or preliminary points would be final and would not be subject to appeal (though judicial review might still lie).

I have no hesitation in rejecting those submissions. In this case the tribunal had moved far beyond the rule 9 stage. The notice of appeal had been accepted by the tribunal and the appeal had already been determined and reconsidered once. The case had then gone to the Court of Appeal and had been remitted for a fresh reconsideration. That was how it came before the SIJ. I think it plain that his decision was reached on a reconsideration pursuant to the remittal and that the conditions for a further appeal to the Court of Appeal under s.103B(1) and (2) were therefore satisfied. Although the SIJ referred to rule 9, it makes no sense to treat his decision as having been made under rule 9 or as a procedural or preliminary decision of the kind referred to in s.103A(7). It happens from time to time that the tribunal, on the determination of an appeal or on a reconsideration, decides that the tribunal lacks jurisdiction to entertain the appeal. I see no good reason of principle or policy why such a decision should be excluded from review or appeal under s.103A or s.103B. In the unusual circumstances of the present case, where a decision on jurisdiction was made for the first time on a second reconsideration, it would in my view be extraordinary if no right of appeal existed. I am satisfied that a right of appeal does exist.

I therefore conclude that the case and should be dealt with as an appeal under s.103B. It follows, as is common ground, that the application for permission to apply for judicial review should be refused on the basis that the appellate procedure provides an appropriate alternative remedy.

I can now proceed to the substantive issues in the case. First, since the whole debate takes place against the background of s.3C of the 1971 Act, to which I have already made brief reference, I should set out the material provisions of that section:

“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 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 is pending (within the meaning of section 104 of that Act).

...

(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)

In this section a reference to an application being decided is a reference to notice of the decision being given in accordance with regulations under section 105 of that Act (notice of immigration decision).”

The question whether and for how long JH’s original leave to remain was extended under s.3C is central to her right of appeal. That is because, by s.82(1) of the NIAA 2002, decisions against which there is a right of appeal to the tribunal include “(d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain” (emphasis added). If JH’s original leave to remain had already expired by the time of the Secretary of State’s decision, her lack of leave to enter or remain was not the result of the refusal and she no right of appeal under that provision; and no other provision of s.82(1) is relevant for present purposes.

In order to establish that her original leave to remain had been extended up to the date of the Secretary of State’s decision, JH has to get over a number of hurdles.

The first question is whether her first application, for indefinite leave to remain as a spouse, was itself a valid application falling within s.3C(1)(a) and triggering the statutory extension of her then existing leave to remain.

At the relevant time the procedural requirements as to the making of such applications were governed by s.31A of the 1971 Act, which provided:

“31A. Procedural requirements as to applications

(1)

If a form is prescribed for a particular kind of application under this Act, any application of that kind must be made in the prescribed form.

(2)

If procedural or other steps are prescribed in relation to a particular kind of application under this Act, those steps must be taken in respect of any application of that kind.

(3)

‘Prescribed’ means prescribed in regulations made by the Secretary of State.

(4)

The power to make regulations under this section is exercisable by statutory instrument.

(5)

Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

Section 31A was repealed by the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), with effect from 29 February 2008, and it will be necessary to refer later to the successor provisions; but it is s.31A and the regulations made under it that are material for present purposes.

The regulations made under s.31A were the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 (“the 2003 Regulations”). They provided in material part:

“4.

The form set out in Schedule 2 is hereby prescribed for an application for limited leave to remain in the United Kingdom:

(a)

as the spouse of a person present and settled in the United Kingdom, or

(b)

as the unmarried partner of a person present and settled in the United Kingdom, for the purposes of the immigration rules.

…

7.

The form set out in Schedule 5 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom:

(a)

as the spouse of a person present and settled in the United Kingdom, or

(b)

as the unmarried partner of a person present and settled in the United Kingdom, for the purposes of the immigration rules.

…

11.

The following procedures are hereby prescribed in relation to an application for which a form is prescribed in any of regulations 3 to 9 above:

(a)

the form shall be signed and dated by the applicant, save that where the applicant is under the age of eighteen, the form may be signed and dated by the parent or legal guardian of the applicant on behalf of the applicant;

(b)

the application shall be accompanied by such documents and photographs as specified in the form; and

(c)

the application shall be:

(i)

sent by prepaid post to the Immigration and Nationality Directorate of the Home Office, or

(ii)

submitted in person at a Public Enquiry Office of the Immigration and Nationality Directorate of the Home Office

…

12.(1) A failure to comply with any of the requirements of regulation 11(a) or (b) above to any extent will only invalidate an application if:

(a)

the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,

(b)

the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 21 days of the date on which the application is made, and

(c)

the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State of the failure.”

It is also relevant to refer to paragraph 32 of the Immigration Rules (HC 395) as it existed at the material time. The relevant part of paragraph 32 stated:

“… all applications for variation of leave to enter or remain must be made using the form prescribed for the purpose by the Secretary of State, which must be completed in the manner required by the form and be accompanied by the documents and photographs specified in the form. An application for such a variation made in any other way is not valid.”

JH’s first application was made on the form prescribed for the purpose of an application for indefinite leave to remain as the spouse of a person settled in the United Kingdom. The form was signed and dated, though curiously the date was 20 November 2004 whereas the form was sent under cover of a letter dated 15 February 2005 and was received by the Home Office on 7 March 2005. The important point is that it was received before the date when JH’s original leave to remain was due to expire, which was 27 March 2005. On the face of it, therefore, it was capable of triggering the extension of the original leave under s.3C of the 1971 Act.

By a letter of 8 April 2005, however, the Home Office purported to reject the application as invalid, on the ground that JH had not used the form prescribed for the application she was attempting to make. The letter enclosed the form prescribed for an application for limited leave to remain as a spouse. I shall deal in due course with JH’s second application, made on the form provided to her.

As I read the SIJ’s decision, he found that the first application was invalid because JH had not provided, and was not in a position to provide, all the documents that were required in support of an application for indefinite leave to remain as a spouse. The difficulty about that analysis is that the 2003 Regulations provide in regulation 12 that a failure to comply with the requirement to provide specified documents will only invalidate an application if the Secretary of State notifies the applicant of the failure and certain other conditions are met, and it is common ground that the Secretary of State did not give any such notification in this case.

The SIJ sought to avoid that difficulty by recourse to para 32 of the Immigration Rules, holding at the end of para 12 of his decision that “… since the appellant could not supply the documents specified in the form and thus comply with the requirements of rule 32 of HC 395, it was not necessary for the Secretary of State to have notified the appellant of her failure to submit the required documents under regulation 12(1)(b) before treating the application as invalid”. Mr Cox takes issue with that reasoning, submitting that the relevant requirements were those prescribed in the 2003 Regulations, made under s.31A of the 1971 Act, and that their effect could not be displaced by paragraph 32 of the Immigration Rules. On behalf of the Secretary of State, Mr Beer accepts the point and, in my view rightly, does not seek to support this part of the SIJ’s reasoning.

Mr Beer submits, however, that the first application was invalid for a different reason, namely failure to use the prescribed form. He says that the correct analysis was that JH was applying for limited leave to remain but simply used the wrong form for the purpose: it is inconceivable that she was applying for indefinite leave to remain, an application that was bound to fail. An application for limited leave to remain was required to be made in the form prescribed by regulation 4 of the 2003 Regulations, whereas she used the form prescribed by regulation 7 for an application for indefinite leave. An application made in any other way than on the form prescribed for the purpose was invalid by virtue of paragraph 32 of the Immigration Rules (and regulations 11 and 12 of the 2003 Regulations are not relevant here because they are not concerned with a failure to use the prescribed form).

I regard those submissions as hopeless. The nature of the application made by JH depends on what she actually applied for, and there can be no doubt that she applied for indefinite leave to remain as a spouse. That was the SIJ’s finding, in the first sentence of para 5 of his decision, and it was plainly correct. The application was in the form prescribed for the purpose of an application for indefinite leave and it contained a declaration, signed by JH herself, that “I hereby apply for indefinite leave to remain in the UK …”. It is true that she was applying for something for which she could not possibly qualify and that her application was doomed to failure. But it does not follow that she intended to make a different application, for limited leave to remain: the more plausible explanation is that those advising her made a mistake about what application she should be making. In any event, whatever her intention may have been, the plain fact is that she made an application on the prescribed form for indefinite leave to remain.

Accordingly, the first application was in my view a valid application for indefinite leave to remain, and the SIJ was in error in finding to the contrary. The first application had the effect of triggering the statutory extension, under s.3C, of JH’s original leave to remain, and that remained the position up to the time when she submitted her second application.

The second application was made on the form prescribed for the purpose of an application for limited leave to remain as a spouse. The form was duly signed. It was dated 18 April 2005 and was probably sent on or soon after that date, though we have not seen any covering letter.

On 16 May the Secretary of State notified a refusal decision, together with an explanatory statement, in terms that made clear that the decision was addressing the application for limited leave to remain: indeed the explanatory statement expressly described the application as having been made on 18 April. The ground of refusal does not matter. The relevant question is whether in the circumstances JH had a right of appeal against the decision. That depends on the interrelationship between the first application and the second application.

As to that, Mr Cox advances two lines of argument. His principal submission is that the second application constituted a variation of the first and that the Secretary of State’s decision of 16 May related to the first application as so varied. If that is correct, then the effect of s.3C will have been to continue the extension of JH’s original leave up to the date of the Secretary of State’s decision.

If the first application was not varied by the second application, then Mr Cox’s alternative submission is that the first application simply continued in being without any decision ever being taken on it; and in the absence of a decision the statutory extension of JH’s original leave to remain has continued to this day. Mr Cox acknowledges that that submission, if correct, gives rise to a different difficulty for him as regards the present appeal, in that it would mean that JH did not have a right of appeal under s.82(1)(d) against the Secretary of State’s decision in respect of her second application and the SIJ’s decision would therefore be correct for an altogether different reason from that given by him: it occurs to me that on this hypothesis the second application may simply have been invalidated by the effect of s.3C(4) of the 1971 Act, but the result would be the same. Nevertheless JH would be in the happy position of having leave to remain unless and until the Secretary of State took a decision on the first application, and once a decision was taken she would have the right to appeal it.

For the Secretary of State, Mr Beer does not seek to contend that the first application was decided by the Secretary of State. His submission is that by submitting the second application JH withdrew the first application, so that the extension of leave under s.3C resulting from the first application came to an end. Thus the second application could not be a variation of the first; and the second application taken by itself could not give rise to an extension of the original leave since it was made after the original leave had already expired. In addition to his withdrawal argument, Mr Beer submits that in any event the second application was not and could not be a variation of the first.

The submissions on withdrawal and variation run into one another and are best considered together.

The variation/withdrawal issues break down into two distinct elements, one of law and the other of fact. As to the law, there is no doubt that the first application was capable of being withdrawn, but there is a dispute as to whether the second application was capable of amounting to a variation of the first. If it was, then there is a separate question of fact as to whether, in the events that occurred, the second application amounted to a withdrawal of the first or a variation of it (or neither).

In DA (Section 3C – meaning and effect) Ghana [2007] UKAIT 00043 the tribunal adopted a restrictive approach to what can count as a variation. The appellant in that case had applied, during the currency of his leave to remain as a student, for further leave to remain as a student. That application was refused. He then applied for leave to remain as the unmarried partner of the sponsor. The tribunal held, and was undoubtedly correct to hold, that the second application could not be a variation of the first because the first application had already been decided and the appellant had therefore ceased to have a pending application that could be varied. Its first reason for dismissing the appeal, however, was that the second application was not capable of being a variation of the first because the two were different in character. Criticising an Immigration Directorate Instruction that a new application could be treated as a variation of the original application even if the new application was completely different, the tribunal said this (at para 13):

“So far as concerns the first of those directions, we have the gravest doubts whether it can be lawful. An application for variation or extension of leave is not made in purely general terms. It is made for a specific purpose under the Immigration Rules, and, following provisions also introduced under the 1999 Act and subsequently amended, has to be made in and on a specific form, and every application has to be accompanied by documentation appropriate to the specific application being made. Further, to take the example mentioned in the instructions themselves, an application for a variation of leave in order to remain as a student is an application for leave which is different in quality from an application for leave to remain as a spouse. A student’s leave is dependent on following a respectable course successfully, and the leave has conditions relating to the course and restricting other work. A spouse’s leave is linked to the marriage and has no conditions restricting work. To describe an application for student leave as being merely ‘varied’ by being replaced by an application for leave as a spouse distorts the meaning of the word ‘variation’ in subs.(5); and, more crucially, it essentially nullifies the prohibition in subs.(4). If an application can be varied in that way, it is difficult to see that any new application is in fact prohibited at all ….”

Later, referring again to s.3C(4) and (5), the tribunal stated (at para 19) that Parliament could have enacted a provision that any new application received during a particular period might (or must) be treated as a variation of the original application, but Parliament did not do so. It prohibited new applications, and any interpretation must respect that prohibition. Then, in concluding that the appellant’s second application could not be a variation of the first, the tribunal expressed its first reason as follows (para 21):

“The first, as we have already indicated, is that in our view an application for leave to remain as an unmarried partner cannot be regarded as a ‘variation’ of an application for leave to remain as a student, within the meaning of s.3C(5). It is an application for leave for a different purpose, for a different period and under different conditions; and, under the provisions of the [2003 Regulations] it had to be made on a different form and accompanied, as the form required, by different documents. If the distinction between ‘variation’ and ‘application’ in s.3C means anything (and it must, because of the prohibition on applications as distinct from variations) then what the appellant did … was not, and was not capable of being, a variation of his application for leave to remain as a student.”

The Secretary of State’s position is that DA Ghana was rightly decided, and Mr Beer has advanced submissions in support of that decision. He submits that the possibility of a “variation” within s.3C(5) is limited to cases where the further application is for leave in the same capacity as the first application and the same prescribed form must be used but there is a change in the details: for example, an application for leave to remain as a student can be varied by a further student application changing the details of the type of course to be pursued or the length of time required to pursue it. But an application for leave to remain in one capacity cannot be varied by an application for leave in another capacity requiring the use of a different prescribed form; and although it might be thought that an application for limited leave to remain as a spouse is made in the same capacity as an application for indefinite leave to remain as a spouse, the need to use a different prescribed form is, in Mr Beer’s submission, fatal to the possibility of one application being a variation of the other.

Mr Cox, on the other hand, submits that DA Ghana was wrongly decided on this point. I have found his arguments persuasive; and rather than set them out in extenso, I propose to incorporate them as appropriate in my own reasons for concluding that the approach in DA Ghana is mistaken and that the possibility of variation is much wider than the tribunal in that case was prepared to accept.

The key to the matter is an understanding of how s.3C operates. I have set the section out at para 10 above. The section applies, by subs.(1), where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2), a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending: I paraphrase the statutory language, but that seems to me to be the effect of it. During the period of the statutory extension of the original leave, by subs.(4) no further application for variation of that leave can be made. Thus, there can be only one application for variation of the original leave, and there can be only one decision (and, where applicable, one appeal). The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subs.(5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary.

Once the operation of s.3C is understood, the concern of the tribunal in DA Ghana about nullifying the prohibition in subs.(4) if a second application is treated as a variation of the first can be seen to lose its force. A second application can be treated as a variation of the first only up to the point when the Secretary of States makes a decision on the application. There is nothing surprising about subs.(4) having only a limited impact during that period, given that it is qualified by subs.(5) which expressly permits a variation of the first application. Thereafter, however, subs.(4) is effective to prevent any further application which might otherwise have been made right up to the time when an appeal in relation to the first was no longer pending, and to prevent a succession of such applications. Far from being nullified, it retains an important function in avoiding abuse of the system.

As to the tribunal’s emphasis on the purpose for which an application is made, it is difficult to see why a difference in purpose should determine whether one application is capable of amounting to a variation of another. The statute refers, in s.3C(1), to an application for “variation” of existing leave even if the application is for a different purpose from that of the existing leave: for example, if the original leave is to remain as a student, an application for variation of that leave will fall within s.3C(1) even if it applies for leave to remain as a spouse. As a matter of language, there is no reason why a later application should not also be treated as a “variation” of the first application even if it is for a different purpose. I do not accept that a variation can only arise where the later application is for the same purpose but with different details. In any event it seems to me that an application for leave to remain as a spouse is an application for the same essential purpose even if the form of leave sought is in one case indefinite and in the other case limited.

I do not think that anything can turn on whether the later application is in the same prescribed form as the first application. The prescribing of forms lies within the power of the Secretary of State and the decision whether to prescribe different forms for different types of application is a matter of executive judgment on which the question whether something is a variation should not depend. For example, the form prescribed by regulation 6 relates to categories as varied as “au pair” to “postgraduate medical/dental training” and “other purposes/reasons not covered by other application forms”. There is no evident reason why the switch from au pair to postgraduate dental trainee should be capable of counting as a variation, whereas the switch from indefinite leave to remain as a spouse to limited leave to remain as a spouse should not, just because the same form has been prescribed for the former whereas different forms have been prescribed for the latter.

It also makes good sense to adopt an approach towards variations that will allow decisions to take account of any relevant change of circumstances since the first application was made, whether the change is one of detail or affects the capacity in which the applicant seeks leave to remain (for example, the student who has married a British citizen since making his application for leave to remain and who now seeks leave to remain as a spouse). Nor do I see any serious practical downside, such as the risk of delay: the speed with which a decision is made is to a large extent in the hands of the Secretary of State.

I am therefore satisfied that a later application is capable of being treated as a variation of the first application even if it is for a different purpose and on a different form.

That conclusion happens to sit more happily with the current rules than does the position adopted by the Secretary of State in this appeal. I have mentioned that s.31A of the 1971 Act was repealed with effect from 29 February 2008. That repeal was effected by s.50 of the 2006 Act, which also provided for relevant procedures to be specified in the Immigration Rules. Rules 34E and 34F, under the heading “Variation of applications or claims for leave to remain”, now provide as follows:

“34E. If a person wishes to vary the purpose of an application or claim for leave to remain in the United Kingdom and an application form is specified for such new purpose, the variation must comply with the requirements of paragraph 34A (as they apply at the date the variation is made) as if the variation were a new application or claim, or the variation will be invalid and will not be considered.

34F. Any valid variation of a leave to remain application will be decided in accordance with the immigration rules in force at the date such variation is made.”

That approach, allowing as it does a variation of the purpose of an application, would be difficult to fit with the tribunal’s reasoning in DA Ghana but appears to be consistent with the view I have taken of the legislative scheme.

I have referred throughout to the question whether a later “application” can be a variation of the first application. That language may be technically inaccurate, since s.3C(4) precludes any later “application”, though s.3C(5) allows a variation. In practice, however, a variation has to be applied for in exactly the same way as a stand-alone application, using the same prescribed form, and I do not think that any difficulty is caused by referring loosely in this way to the possibility of a later application constituting a variation.

In the light of the conclusion I have reached on the legal issue, I turn to consider whether the second application amounted as a matter of fact to a withdrawal of the first application or a variation of it (or neither). The issue was not presented in that form to the SIJ and I do not think that he can be said to have made any determinative finding of fact on it. The appeal to this court lies on law, not fact. If, however, there is only one conclusion that could reasonably be reached on the point, it is open to us to give effect to that conclusion. Otherwise the necessary fact-finding must be left to the tribunal on a remittal.

The second application was not put forward expressly as a variation of the first. Equally, however, nothing was said about withdrawing the first. On receipt of the Home Office’s letter of 8 April 2005 asserting that the first application was invalid, JH simply completed and returned the form enclosed with that letter. Mr Beer submits that she must have done so with the intention and effect of replacing the first application: she no longer intended to proceed with the first application and must be taken to have withdrawn it. It seems to me, however, that no such inference can be drawn. She was not adopting any position in relation to the first application but was merely doing in effect what the Home Office’s letter told her to do.

The Secretary of State’s own position at the time can be regarded as equivocal. On the one hand, the letter of 8 April asserted that the first application was invalid. On the other hand, the Secretary of State appears to have treated the second application in practice as a variation of the first, since only in that way can one explain the fact that JH was considered at the time to have a right of appeal against the decision. It seems to me that Mr Beer was right to concede that that was an inference available from the documents. Moreover, at no time did the Secretary of State say or do anything that could give support to the contention that the first application was withdrawn.

Looking at the facts within the legal context that I have already described, I have come to the conclusion that the second application fell to be treated as a variation of the first. I have hesitated over the question whether that is the only conclusion reasonably open, but it makes such good sense of what happened, and produces so obviously just a result, that I am prepared to go that far.

It follows that in my judgment the SIJ erred in law in finding that JH had no right of appeal and that the tribunal had no jurisdiction in the matter. I would allow JH’s appeal to this court and would remit the case to a differently constituted tribunal for a reconsideration; that is to say, for a reconsideration of the substantive issue under article 8 which was meant to have been the subject of the reconsideration on the last occasion when the case was remitted to the tribunal by this court. Mr Cox also sought a declaration that JH has a right of appeal, but in my view such a declaration is unnecessary even if it falls within the powers of the court under s.103B(4) of the 2002 Act. The legal position is stated clearly enough in this judgment.

I entirely agree with the judgment of my Lord, Richards LJ, which I have had the advantage of reading in draft, and which I would be content to adopt as my own. Like him, I would allow the appeal and remit the case to a differently constituted tribunal for reconsideration.

My principal concern during the course of argument was that, whereas the appellant in the present case is plainly genuine, the remedy proposed might be open to abuse by unscrupulous applicants, who would make repeated applications for variation as a means of prolonging indefinitely the process put in place to adjudicate finally upon their claims. It seemed to me, however, that Mr. Cox had several compelling arguments against such an outcome. The first, of course, is that identified by My Lord in paragraphs 36 of his judgment. The second is that any variation application requires the payment of a substantial fee, a fact which, Mr. Cox argued, was, of itself, likely to prove a substantial disincentive. In any event, it seems to me that these two factors, either jointly or severally, are amply sufficient to prevent abuse.

Conscious as I am of the maxim that hard cases make bad law, I am pleased that our construction of the statute and the regulations permits us to achieve what is plainly a just result. The appellant is not a lawyer, and judging by its notepaper, the body which advised her to submit the wrong form, the Southern African Cultural and Welfare Association Limited, does not appear to number lawyers amongst its members or sponsors. Thus the Secretary of State was only able to advance the arguments she did because by the time her officials sent the appellant “the appropriate form”, the latter’s original six months leave to enter had expired. I am not for one moment suggesting that the Secretary of State acted in bad faith, but it is clear to me that the applicant was the innocent victim of the initial advice she received, and - had we upheld the SIJ’s interpretation of events - would have equally proved the innocent victim of the fact that the six month period of her original leave to enter had expired.

I agree that the appeal should be allowed for the reasons given by Richards LJ.