Iqbal & Ors, R (on the application of) v The Secretary of State for the Home Department

There are three interrelated appeals all concerned with the proper construction of section 3C of the Immigration Act 1971. This section has the effect of automatically extending a person’s leave to remain in the UK pending the determination of an application to vary the period of leave, but only if the application to vary is made before the original leave expires. In each case the appellant made an application before leave expired which was treated as invalid by the Secretary of State because not presented in accordance with the rules. In each case there was a further application made after leave had expired, which was unsuccessful. In each case, if the original invalid application had triggered the automatic extension, the application would have had to be considered differently and may well have succeeded. The appellants submit that on a proper construction of section 3C, leave had been extended notwithstanding that the original applications were invalid under the rules.

There are two principal reasons why it is important that an application to vary should be made before the original leave expires. The first, as I have indicated, is that various policies operate more favourably with respect to those who have a lawful right to remain in the United Kingdom than those who do not. In the case of Mr Iqbal and Ms Ehsan, they both applied for extension of leave to stay as a student. In each case the first timeous application was held by the Secretary of State to be invalid because not in accordance with the rules. In each case they made a fresh application naming a particular sponsoring college. In each case their Confirmation of Acceptance for Studies (CAS) was revoked because the sponsoring college had its licence revoked. Had they been treated as lawfully in the country they would have had sixty days to find a new sponsoring college, which in all likelihood they would have been able to do. However, that leeway was not afforded to them because the Secretary of State considered that they did not have leave to remain.

In the case of Mr. Mirza, he applied for leave to remain as a Tier 1 (Post Study Work) Migrant. In his case he had to qualify under a points system. He was not awarded points for his academic qualification because the Secretary of State considered that he did not have leave to remain during the period of study. He would have obtained the necessary points had he been lawfully in the UK.

In each of these appeals, therefore, their applications would have had to be treated differently had their leave to remain been extended by section 3C.

The second reason why it is important for the applicant to have leave to remain when a decision on his application to vary is made is that there is no right to appeal the decision unless his is lawfully present. This is the effect of section 82 of the Nationality, Immigration and Asylum Act 2002 which provides, so far as is material:

“(1)

Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2)

In this Part "immigration decision" means - ……

(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.”

If an applicant has no leave to remain when the decision is taken, the result of that decision is not to deprive him of leave; he does not have it in any event. Accordingly, the decision is not an immigration decision as defined and there is no right of appeal. Any challenge must be by way of judicial review. In fact in these cases the logic of the appellants’ arguments is that they did have leave at the material time and therefore did have a right of appeal.

I will initially focus only on the facts in Iqbal. It is conceded that the other two appeals will be resolved by the answer to that appeal. It is therefore not necessary to engage with them in any detail and I deal with the salient features of their cases at the end of this judgment. In addition, Iqbal raises a particular ground of appeal which does not arise in the other two cases.

Mr Iqbal is from Pakistan. He was granted entry clearance in January 2007 to come to the UK as a student. Initially this was until 31 May 2008 but a fresh application was later issued giving leave to remain until 30 April 2011. On 7 October 2010 his wife was also given entry clearance as a dependent for the period up to 30 April 2011.

The chronology of events thereafter is important. On the 19 April, before leave had expired, Mr Iqbal made an application for leave to remain as a Tier 4 (General) Student. Unfortunately he did not submit the appropriate fee with his application because he had not appreciated that it had recently been increased by some £29. On 26 April the application and supporting documents were returned to him and he received them on the 2 May, after leave had expired. He was informed that the failure to pay the proper fee meant that his application was invalid, as the relevant regulations stipulated: see reg. 37 of the Immigration and Nationality (Fees) Regulations 2011 (SI 2011/1055) which states in terms that “where an application…is to be accompanied by a specified fee, the application is not validly made unless accompanied by that fee.” He was also told that because of its invalidity, “this attempted application cannot be considered”.

Mr Iqbal submitted a further application on 6 May, after his leave had expired, to remain in a temporary capacity as a student at the William Shakespeare College. Later he sought to amend this by naming the Equinox College as the appropriate educational institution. On 11 October the Home Office confirmed that he could change the establishment at any time before a decision on his application was taken. However, his CAS for Equinox College was automatically rendered invalid in May 2012 when that college lost its licence, and on 18 March 2013 the application was refused because he had not identified an approved college. If he had been entitled to the automatic extension of leave under section 3C, then he would have been given 60 days in which to identify another approved institution who would accept him. He was not given that opportunity because the Secretary of State considered that he had no right to remain because the relevant application had been made after his leave had expired.

The claimant lodged a notice of appeal. By a decision dated 16 April 2013 the First Tier Tribunal determined that he had no right of appeal under the Nationality, Immigration and Asylum Act 2002. He sought judicial review of that decision and HH Judge Bird refused permission on the papers. He renewed the application and it was remitted to the Upper Tribunal (this being mandatory for immigration judicial reviews since 1 November 2013). Again permission was refused following an oral hearing before UT judges Gill and Perkins on 14 November 2013. An appeal was lodged out of time with the Court of Appeal. Gloster LJ granted permission and an extension of time.

As at the material time (and until October 2014), section 3C provided for the automatic continuation of leave in the following terms:

“3C Continuation of leave pending variation decision

(1)

This section applies if—

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,

the application for variation is made before the leave expires, and

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—

the application for variation is neither decided nor withdrawn, ...

(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).

(6)

The Secretary of State may make regulations determining when an application is decided for the purposes of this section;….”

The original forerunner of this section was introduced in 1976 to remedy a problem highlighted by the decision of the House of Lords in Suthendran v Immigration Appeals Tribunal [1977] AC 359. Their Lordships held, by a majority, that the effect of the legislation then in force was that in order to pursue a right of appeal against a refusal to vary or extend leave, the applicant had to have leave to remain both at the date of the original application seeking to vary the leave and at the date of any subsequent notice of appeal.

The effect of section 3C was succinctly summarised by Richards LJ in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; [2009] Imm A R 499 para. 35, in a judgment with which Wall and Laws LJJ agreed, as follows:

“[35] 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.”

It is pertinent to observe that the court in that case acted on the assumption, apparently not disputed by anyone, that the statutory extension would only apply if the application to vary was a valid one under the rules: see para. 13.

The regulations made pursuant to regulation 3C(6) which were in force at the material time were the Immigration (Continuation of Leave) (Notices) Regulations 2006 (SI 2006/2170). They are concerned only with identifying when a decision is deemed to have been taken. Regulation 2 is as follows:

“For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is decided—

(a)

when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002; or where no such notice is required,

(b)

when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971.”

It has been held that the actual decision is not made under these regulations until notification; the notification is not a separate stage after the decision has been made: see Ahmadi v Home Secretary [2013] EWCA Civ 512; [2014] 1 WLR 401, para. 25 per Sullivan LJ. As he succinctly put it, “Giving the notice does not follow the exercise of the power, it is the manner in which the power is exercised.”

Section 105 (1) of the 2002 Act provides as follows:

“(1)

The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.”

Such regulations have been made: the Immigration (Notices) Regulations 2003 (SI 2003/658).

As we have seen, however, an immigration decision would not include a decision to refuse to vary the leave of someone who did not already have leave at the date of the decision. Their notification would therefore have to be made pursuant to section 4 of the 1971 Act which requires that the save where otherwise specified in the Act (as in section 105), any decision made under the power to vary shall be exercised by notice in writing to the person affected.

The argument advanced before the UT was very different from that now pursued before us by Mr Malik on behalf of all three appellants. It seems to have been accepted that if the decision that there was an invalid application had been properly determined, there could be no automatic extension of leave and the decision of the Secretary of State was justified. Until this case it seems that this had always been understood to be the correct analysis, and as I have said, that was the assumption of this court in JH (Zimbabwe). The submission which was unsuccessfully advanced before the UT was as follows: that the Secretary of State had unreasonably delayed in notifying the appellant of the decision to treat his application as invalid; that this rendered the decision unlawful; that the original application therefore remained valid; and leave was thus automatically extended by section 3C. The judges held that there was no undue delay and that the contrary was not even arguable. As vexing as it was for the applicant to be notified too late that his original application was invalid, that gave rise to no error of law.

The appellant now runs entirely different arguments to those addressed below. However, the Secretary of State has not objected to the points being taken and indeed wishes the issues to be decided. In the circumstances we have allowed them to be advanced.

First, Mr Malik, counsel for all three appellants, submits that the premise on which the Upper Tribunal acted, namely that an invalid application was not an application falling within the scope of section 3C, was erroneous. He says that the original application did engage the automatic extension provisions in section 3C. In fact Ms Broadfoot, counsel for the Secretary of State does not, in her primary submission, contend otherwise. She accepts that an application which is invalid under the rules may nevertheless be an application which engages and brings into effect section 3C. However, she submits that a notification to the appellant that his application is invalid constitutes a decision on the application within the meaning of section 3C. If that decision is made before leave has expired, leave will simply expire in the normal way and section 3C has no role to play: see section 3C(1)( c). If it is decided after the expiry, leave will terminate at the date of the decision: section 3C(2)(a). Mr Malik submits that this analysis is wholly misconceived.

Mr Malik’s second submission is that even if the notification of invalidity is capable of constituting a relevant decision, the procedure adopted by the Secretary of State in Mr Iqbal’s case was unfair and that rendered the decision invalid. Accordingly, the original application remained good and section 3C automatically extended his leave to remain.

I turn to consider the three issues. Before doing so, however, I pause to note the consequences of Mr Malik’s argument. If he is correct, anyone already granted limited leave to remain in the country could send in a rudimentary application to the Secretary of State simply containing a request for an extension of the period, whether or not it is in the specified form or indeed any form at all. Provided the request is made prior to the original leave expiring, it would be an application within the meaning of section 3C and time would be extended. Contrary to the submissions of the Secretary of State, the notification that the application was invalid would not constitute a decision within the meaning of section 3C and would not, therefore, bring the extension of leave to an end. So leave would continue notwithstanding that decision. However, there would be no obligation on the applicant to send in a fresh application, and so he could remain lawfully in the UK indefinitely. Mr Malik conceded that this was indeed the consequence of his submissions but contended that it was no reason to distort the proper construction of the legislation. He said that the solution lay in the hands of the Secretary of State who could introduce the necessary amending legislation. I confess that I would be reluctant to accept that Parliament intended an outcome where anyone lawfully present could extend their leave indefinitely by such a simple device unless the statutory language permitted no other acceptable construction.

As I have said, the primary argument of the Secretary of State is that the appellant is right in his submission that his original application did engage section 3C notwithstanding that it was invalid because not in compliance with the rules. As Ms Broadfoot frankly admitted, this marks a change in the Secretary of State’s approach to this issue, and is at odds with the way in which cases have been argued in the past. It does not follow from her analysis, however, that the applicant has in effect indefinite leave to remain as Mr Malik contends because she says that the decision to treat the application as invalid is a relevant “decision” within the meaning of section 3C(2) which brings the extension to an end. Moreover, she submits that it is a decision which does not attract any right of appeal.

However, whilst that is her preferred method of countering Mr Malik’s submissions, she adopts as a fall back argument the premise on which all these appeals were analysed below, namely that an invalid application is not an application at all within the meaning of section 3C.

A number of arguments have been advanced in support of the proposition that an invalid application still falls within the terms of section 3C. Mr Malik submits that the natural meaning of the word requires no more than an application to vary; if, on a fair construction of the application, that is what it seeks to do, it is a relevant application. To insert the word “valid” is illegitimate and is allowing subsequent regulations to determine the construction of the statute, which is plainly impermissible.

Second, as both counsel point out, it is a criminal offence for someone to work whilst here illegally, and indeed for the employer to employ them. However, it is often difficult to be sure whether an application properly complies with the rules or not. It follows that in an employment context there may be a bona fide but invalid application and unless leave is extended by section 3C, both the applicant and his employer will be committing a criminal offence once the original period of leave has expired. It may be true that a prosecution is unlikely in practice, but the risk is there and the statute should be construed so as to avoid this unfortunate result.

Moreover, there are certain circumstances where the requirements for validity can arise after the application is made. For example, in some cases it is necessary to provide biometric information if it is sought by the Secretary of State. This will typically have to be provided weeks after the original application is lodged. The invalidity in such cases may result (as in the appeal of Ms Ehsan) in the failure to provide the information, perhaps a long time after the application was made and the leave expired.

I accept that there is merit in these submissions, and in particular in the concern that someone making a bona fide application may nonetheless unwittingly fall in breach of the criminal law. But ultimately I reject them. It has always been assumed that an application must be one which is validly made in accordance with the rules and the point has not, so far as I am aware, ever been in issue. In my view the assumption is correct. I do not accept that it involves the regulations determining the scope of the rules. When the version of section 3C now under consideration was introduced by the Nationality, Immigration and Asylum Act 2002, a power was given to the Secretary of State by section 31A of the 1971 Act to enable regulations to be made prescribing the formal requirements of certain applications and also stipulating the consequences of failure, including when an application would be invalidated. That power was at the time of the decisions challenged in these appeals found in section 50 of the Immigration, Asylum and Nationality Act 2006. Similar powers were given by section 51 with respect to the charging of fees and the consequences of non-compliance. Parliament would have known, therefore, that rules would be adopted regulating the form of applications, and identifying when breaches would render the applications invalid. It is true that Parliament would not have known how those powers would be exercised, but in my view it is a cogent reading of the section to construe the reference to an application as one which is a proper application as defined by rules which Parliament has permitted the Secretary of State to formulate.

It is the Secretary of State who advances this argument. She says that the notification of invalidity constitutes a relevant decision within the meaning of section 3C. In my judgment this is wholly unsustainable. In order to constitute a decision, there must be a determination of the application to vary. That is not what the rejection of an application achieves. It is effectively telling the applicant that no decision has been made because no proper application has been received. Indeed, Mr Iqbal was told that his attempted application could not be considered. Furthermore, an applicant may, after the rejection, make a fresh application (which may sometimes be before leave has expired) so as to have the substantive issue determined. If the original application has already been determined, I can see no room in such circumstances for another determination. Moreover, if the effect is to decide the application as one refusing leave, there would be a right of appeal, which the Secretary of State submits is not the case. Ms Broadfoot submits that this would not be the effect of the rejection of the application; but if it does not have that effect I cannot see how it can possibly be a relevant decision at all.

In my judgment, if a decision on the application for leave was intended to include a decision that there is no valid application, Parliament would have had to say so in terms. In my view this is not even a possible reading of the section as it stands.

Ms Broadfoot put much emphasis on the fact that a decision under section 3C may be notified either by a notice under section 105, which relates to immigration decisions with respect to which there is a right of appeal, or by a notice under section 4 of the Immigration Act. She says that this shows that there will be decisions made on an application to vary which will not fall within section 105 and she suggests that this was intended to cover cases where the application is rejected. I do not accept that this argument advances her case at all. First, as I have pointed out above, a notification under section 4 would cover those refusals where there is no right to appeal; and as Mr Malik pointed out, a section 4 notification would also apply where the variation of leave is granted. Second, the only purpose of the regulations made under section 3C(6) is to determine when a decision within the meaning of the section is treated as having been taken. Ms Broadfoot is seeking to use the regulations to dictate what constitutes a relevant decision under the section. That is not legitimate; they can have no bearing on that question.

This ground of appeal is that the decision to reject the application was taken in an unfair manner which rendered it invalid and therefore left the original application in place. In pursuance of this argument the appellant relies upon the decision of the Upper Tribunal in Basnet v Secretary of State [2012] UKUT 00113. In that case the application for variation of leave to remain was rejected because the Secretary of State considered that the relevant fee had not been paid. This was because although credit/debit card details had been provided, the issuing bank rejected payment. The applicant re-applied but this was after his leave had expired. It was common ground that the appellant had the relevant funds in his account at the material time.

The issue for the Upper Tribunal in that case, as here, was whether there had been an application made prior to leave expiring. The applicant contended that he had provided a proper authorisation for the Secretary of State to secure the relevant funds and that the notice invalidating his application was itself invalid.

The Upper Tribunal held that the validity of the application had to be determined by whether it had been accompanied by a valid authorisation enabling the Secretary of State to obtain the requisite fee. It held that the once the applicant had alleged that he had made a proper application, the burden was on the Secretary of State to establish otherwise. That burden had not, in the Tribunal’s view, been discharged on the facts because documents which might have supported the Secretary of State’s decision had been destroyed.

In the course of its judgment the Upper Tribunal also noted that there was a different procedure adopted depending upon whether the application was made by post or in person. In the latter situation there was an opportunity immediately to remedy any error in the application (such as an error in the credit card number) so that a fresh attempt could be made there and then to process the application.

This had provided the basis of a second argument that the handling of the application was unfair because those making their applications personally were treated more favourably than those who had applied by post. The Tribunal (Mr Justice Blake P and Tribunal Judge Macleman) observed that it was not strictly necessary to address this submission, but they made the following, somewhat tentative, obiter remarks (paras.31-33):

“[31] ... We are however sufficiently impressed by the marked difference in treatment between the postal application and the personal application to indicate that it has every appearance of substantive unfairness.  This requires an immediate review if time and money is not to be spent on similar appeals, or indeed on applications for judicial review in the Court of Session of similar decisions where there is no right of appeal. 

[32] In our judgment one or more of the following measures should be adopted to prevent similar disputes in the future:

(i)

The fee is processed immediately on receipt of

the application and before an acknowledgment letter

has been sent.

(ii)

The standard letter is amended so that

it constitutes an acknowledgement that a valid

application has been made.

(iii)

In cases of a failure to collect the fee in an

application made in time, there is prompt

communication with the applicant to afford an

opportunity to check or correct the billing data.

(iv)

In cases where the accuracy of the billing

data is critical to the success of the application and

the existence of a right of appeal, the original application

form is securely retained along with the processing

report, and is produced to the judge in the event of a challenge

by way of appeal or by determination of a preliminary issue.

[33] The absence of such measures, or cogent reasons why they cannot be adopted, may well result in a determination that the consideration of the application has been unfair and therefore not in accordance with the law.”

Mr Malik relies upon these observations, and submits that the decision of the Secretary of State here was unfair and that the rejection of the application was a nullity. I do not accept this submission. It is true that when somebody presents an application in person they can quickly remedy any defect. In fact they pay a larger fee in those circumstances than when applying by post, and this does give them the opportunity to remedy the first invalid application and immediately submit a new and valid one. The opportunity to submit a fresh application is also of course given to those who applied by post. The problem is that in practical terms there will inevitably be some delay in processing their applications and if they are rejected as invalid, the notification of that decision will frequently be made after leave has expired. There is no doubt that this has produced harsh results which can be relatively arbitrary because they depend upon how far in advance of an expiry date an application is made and how quickly it is processed. Nonetheless if there is no unreasonable delay – and the Upper Tribunal in this case concluded that there was not and that finding has not been the subject of any appeal – I do not see why the Secretary of State is obliged as a matter of fairness to put in a system which will in effect prioritise those cases where the defect is the failure to accompany the application with the appropriate fees.

Some of the unacceptable and arbitrary consequences arising from the application of these rules will now be ameliorated following changes to the rules in 2014. An applicant now has 10 days in order to remedy what would otherwise be an invalid application. But those new provisions do not operate retrospectively.

In my judgment, there was no unfairness in the procedure such as to render this decision of the Secretary of State invalid.

It follows that no application within the meaning of section 3C was made prior to leave expiring and therefore the automatic extension of leave provided by that section did not come in to play.

I shall deal with very briefly with these because they are determined by the outcome in Mr Iqbal’s case.

The essential facts in Mr Mirza’s case are as follows: he entered the UK on 27 July 2002 under a student visa which at various stages was extended so that he had leave to remain until 31 March 2009. It is now accepted by the Secretary of State, after having initially being disputed, that he put in an application to extend leave on 27 March 2009 so before leave had expired. That was wrongly rejected and he put in a fresh application on 4 April but that was rejected on the grounds that it was invalid because he had not enabled the respondent’s offices to obtain the appropriate fee from the bank. On 1 April 2012 he submitted a further application to remain a Tier 1 (Post Study Work) Migrant. On 10 November his application was refused because he did not have the necessary points because his original qualification had been obtained when he did not have leave to be in the UK. He sought judicial review but it was refused both on paper and subsequently at an oral hearing before Mr Justice Philips.

It is accepted that Mr Mirza can only claim that he had leave to remain on the date of the decision if his original application had the effect of extending time pursuant to section 3C. Since it was an invalid application it did not, for reasons I have given. Accordingly the appeal must be dismissed.

Ms Ehsan came to the UK on 8 March 2011 and had leave as a Tier 4 student valid until 25 December 2011. On 23 December she submitted an application for further leave as a Tier 4 (General) student. The Secretary of State thereafter requested on a number of occasions that she provide certain biometric information. She was told that this had to be provided within 17 days unless there was good reason for being unable to do that. She was told that if the information was not provided the application would be treated as invalid. She did not provide the information and her application was rejected on 26 March as being invalid. This is the consequence of regulation 23 of the Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048).

On 3 April Ms Ehsan made a fresh application and subsequently provided the relevant information. However in September 2012 the college which had sponsored her had its licence revoked. Had she been present in the UK with appropriate leave she would have been able to take advantage of the 60 day rule but the Secretary of State concluded that she did not have extended leave at the time of the application and she could not benefit from it. She sought judicial review. Permission was refused both on paper and orally before Judge Gill sitting in the Administrative Court as a Deputy High Court Judge.

Ms Ehsan’s argument is the same as the other two appellants, namely that her application made on 23 December 2011, although invalid, constituted a relevant application under section 3C and therefore automatically extended leave. Since I have rejected that fundamental step in her argument, this appeal too must fail.

I cannot, however, leave this judgment without observing how abstruse the law has become in this area. That is always a weakness but particularly so when so many immigrants are litigants in person with precious little, if any, understanding of English law. It is telling that in this case the Secretary of State had changed her view as to the proper interpretation of section 3C, an important provision which affects the legal rights of immigrants in numerous ways. Also it is difficult to identify precisely which laws were in force at any particular time. We were told that the website will now reveal an up to date set of rules, and that is an important and welcome development. But without analysing the relevant changes, it can be hard to discern which rules were in place at an earlier stage when particular disputed decisions were taken. The overriding impression given is that the rules are changed in a piecemeal way to deal with particular problems as and when they arise. But firefighting is not the way to produce a rational or consistent set of rules; and the process does not sit easily with the rule of law, and in particular the principle that litigants should be able to discover the laws applicable to their circumstances. There is an overwhelming need for a rationalisation and simplification of this area of law.

I agree.

I also agree.