Singh, R (On the Application Of) v The Secretary of State for the Home Department

This is an appeal from the decision of Philip Mott QC, sitting as a Deputy High Court Judge. On 15 December 2015 the judge dismissed the Appellant’s claim for judicial review of the Respondent’s decision on 19 November 2014 to reject as invalid the Appellant’s application for further leave to remain as a Tier 4 (General) migrant. The decision was reached on the basis that the Appellant had failed to provide his passport in support of his application, within the specified time. As the chronology will show, the relevant decision came close to the date of an amendment to the Immigration Rules, subject to transitional provisions. Which form of the Rules applied turns on whether and when the Appellant made an “application” for an extension of leave to remain. The Appellant’s central contention is that, under all the relevant provisions, an “application” must be a valid application, otherwise the time provisions do not begin to run. The judge rejected this, and the appeal challenges that conclusion.

The Appellant is an Indian national, born on 6 December 1990. On 25 March 2011, he was granted leave to enter the United Kingdom as a Tier 4 (General) student until 25 October 2014. On 16 October 2014, the Secretary of State issued amendments to the Immigration Rules as HC693, with accompanying transitional provisions.

On 22 October 2014 (three days before his leave would expire), the Appellant submitted an on-line application (“the application”) for further leave to remain. He was required to provide supporting documents within 15 working days, including his passport. That period expired on 11 or 12 November 2014, the distinction being unimportant for this case. On 30 October 2014, the Respondent wrote to the Appellant pointing out that the passport had not been received and asking him to provide it by 10 November. The Appellant’s solicitors responded by letter of 5 November, indicating that they would forward the passport when received from the Appellant and asking the Respondent to exercise her discretion and allow an extension of time to cover the provision of this document and others.

On 15 November 2014, the Appellant was arrested at Hillingdon Registry Office where he was intending to marry a UK citizen. The ceremony was prevented by the arrest. On the same day his passport was seized and thereafter remained in the custody of the Respondent. The disruptive action taken by officials was based on the belief that the intended marriage was a sham and that the Appellant had been working breach of the conditions of his previous leave to remain. The Respondent has accepted that she wrongly purported to deem the Appellant’s application for further leave withdrawn (hence purporting to curtail any s.3C leave) on that basis and as a consequence that the Appellant was unlawfully detained from 15-19 November 2014. This aspect of the case was not material to the judgment below and is not material to this appeal.

On 19 November 2014, the Respondent wrote to the Appellant pointing out that he had failed to provide his passport within the specified time (that is to say by either 11 or 12 November) and that therefore his application was rejected as invalid.

The application for judicial review was based on three grounds for which permission had been given. It is helpful to paraphrase two of them. Ground 7(b) claimed that the decision to reject the application as invalid was an error, because the Appellant’s passport was in the Respondent’s possession as from 15 November. Ground 7(c) alleged that the Respondent unlawfully and in breach of her own policy failed to extend time to submit the passport and other relevant documents in support of the application. The third ground is not material to this appeal.

The judge rejected the Appellant’s submission that “application” in the transitional provisions in HC693 means “valid application”. He rejected the Appellant’s reliance on the decision of this court in R (Iqbal) v SSHD [2015] EWCA Civ 838. That case, he said, was of no assistance, as it arose from different provisions and in a different context. The decision of the Supreme Court in the same case (R (Iqbal) v SSHD SC(E) [2017] 1 WLR 85) was not then available.

The judge accepted the submissions of the Respondent that the term “application” in the transitional provisions should be interpreted in the same way as “application” in the Immigration Rules, and should include applications which are later rejected as being invalid. Rule 34G defines the date of making an application via the on-line process as the date on which the on-line application is submitted (judgment, paragraph 16). On-line applications must be followed by the postal provision of required documents. The judge found that no on-line application is “valid” at the point of submission and only becomes “validated” by the provision of the required documents within 15 working days (judgment, paragraph 16).

Here, the Appellant’s application never became “validated” and the Respondent’s decision was correct.

The relevant extracts from statute, regulations, transitional provisions and guidance are appended to this judgment as Annex 1.

The Appellant argues that the natural and ordinary meaning of the term “application” in these provisions is and must be “valid application”. Mr Biggs submits that otherwise an “application” could be made in any way whatever; by a migrant telephoning the Respondent and indicating an intention to apply for leave, or “by simply shouting out an intention to apply for leave to remain in the street”. He says that “an intrinsic aspect of the concept of an application” is that it refers to an existing procedure, and it follows that whether an “application” has been made, depends on the relevant procedural context. The “validity” of an application depends on whether “a true application has been made in a given procedural context”.

Further, the submission is that any reference to a “decision” in the Immigration Rules means a decision on the merits, to be distinguished from a conclusion, on consideration of the file, that an application is invalid. As Elias LJ said in Iqbal at paragraph 31: “In order to constitute a decision [within the meaning of section 3C] there must be a determination of the application to vary”. The text in the “Implementation” Preamble to HC693 includes the following: “… save that if an application has been made for … leave to … remain before 6 November 2014, the application will be decided in accordance with the Rules in force on 5 November 2014”. The word “decided” must refer to a “decision” as so defined. The Appellant submits that this does not address which version of the “validity determining Rules” should be applied, to determine whether a valid application has been made, since “an application” must mean a valid application, and the verb “decided” must refer to a decision on the substance of the application, not a conclusion on its validity.

Mr Biggs also relies on the Court of Appeal decision in Iqbal. In that case there were three inter-related appeals, the Appellants being Iqbal, Mirza and Ehsan. In each case this Court found that an “invalid” application for a variation of leave was made before the end of a relevant stipulated period. The Court of Appeal made no distinction between the three cases in respect of their invalidity. After the end of the period a further application was made, and those further applications “would have had to be considered differently and may well have succeeded”, if the original invalid application had triggered an automatic extension of time pursuant to s.3C of the Immigration Act 1971. S.3C is reproduced in Annex 1. This Court in Iqbal concluded that the automatic extension could only be triggered where a valid application had been made in time: see the judgment of Elias LJ in Iqbal, paragraphs 1 and 30. In the latter paragraph Elias LJ wrote:

“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.”

As a consequence, Mr Biggs says this Appellant’s application must be regarded as invalid throughout.

Mr Biggs makes further, rather complex, submissions for the Appellant. I summarise only some of them. He says that the transitional provisions within the statement of changes HC693 “provide no means of determining whether a true (valid) application has been made” and nor do the transitional provisions “address which version of these validity-determining rules should be applied” at the relevant time, which the Appellant suggests is 19 November 2014, since that was when the matter was actually considered. Thus, he submits the judge’s construction leads to circularity, from which the “only escape” is to be found in an application of Odelola v SSHD [2009] UKHL 2, [2009] 1 WLR 1230. In that case (which turned on different facts), it was established that, in the absence of defining transitional provisions, the Immigration Rules in effect at the date of the relevant decision apply. The Appellant further submits that Rules A34 and 34C address a situation where a valid application becomes invalid, because “the requirements of the rules regarding the validity of applications have not been met”.

Overall, the Appellant emphasises that his principal argument is that the word “application” should be given what he says is its natural and ordinary meaning, namely a valid application. The question of the validity of the application had to be judged at a given time and the relevant time on the facts of this case was 19 November 2014.

The Secretary of State in reply begins by emphasising the provision in HC693 that “if an application has been made for entry clearance or leave to enter or remain before 6 November 2014, the application will be decided in accordance with the Rules in force on 5 November 2014”. Mr Cornwell goes on to emphasise that, under the new Rules and the old, paragraph 34G provides that:

“… the date on which an application … is made is as follows:

…

(iv)

where the application is made via the on-line application process, on the date on which the on-line application is submitted.”

The language of A34 in the Rules, in both forms, defining the “relevant on-line application process”, separates the necessary dates for making an on-line application process and submitting necessary documents by post:

“A34(iii)

(c)

… in the specified manner within fifteen working days of submission of the on-line application.”

From that starting point, the Secretary of State seeks to support the judge’s rejection of the submission that “application” in this context means only “valid application”. Paragraph 34G of the Rules expressly determines the date on which an application is made at a point before the validity can be tested. Unless that is the correct interpretation, confusion is produced as to which set of Rules – “old” or “new” are to be applied.

The Respondent rejects the relevance of Iqbal to the question in this case. Mr Cornwell argues that Iqbal was concerned with the particular statutory context of s.3C of the 1971 Act. He submits there is a real distinction between the cases and contexts. Central to the decision in Iqbal was the construction of Parliamentary intention. It cannot have been intended that an invalid application would bring an automatic extension of leave to remain – see the judgment of Elias LJ at paragraph 24 and the judgment of Lord Carnwath in the Supreme Court at paragraph 16. The Respondent submits that neither in the decision of the Court of Appeal or the Supreme Court in Iqbal was there any suggestion or conclusion that in the context of the Rules (as opposed to s.3C) “application” had to be construed as meaning “valid application”.

In my view the submissions in this case have become over-complicated. It also seems to me the parties failed, before the hearing at least, to read sufficiently closely the decision in Iqbal in the Supreme Court.

The suggestion that a telephone call to an official or a shout in the street could constitute an “application”, whether valid or otherwise, is nonsensical. Mr Biggs acknowledged as much, but the acknowledgement does not strengthen his submission. The provisions we have to consider turn on an on-line application made in a specified form, whether or not the proper accompanying documents are subsequently deposited by post. Since the whole timetable turns on an on-line application, the eventual validity of which cannot be tested for some period afterwards, the intention of the Rules and the transitional provisions seem to me rather obvious. The intention must be that the time provision runs from the point of the on-line application, made using the stipulated software, whether or not that application subsequently proves to be “valid” or “invalid” by reference to the provision of aftercoming necessary documents and information. This accords with the conclusions of the judge below.

The context in the Iqbal appeal was different: s.3C of the 1971 Act confers a clear advantage (a continuation of leave pending variation decision) proceeding from an application for variation before leave expires. Parliament cannot have intended such an automatic advantage to accrue from an application for variation which was ab initio invalid. Those policy considerations do not apply here. As I have indicated, it seems clear that the intention here must have been to provide a clear timetable which would apply to applications whether or not they turned out to be valid.

However, one of the three cases considered in Iqbal, that of the Appellant Ehsan, does provide a parallel to this case, and on a matter not distinguishable by reference to the different policy considerations at play. Lord Carnwath JSC observed:

“36.

I find more difficulty with the case of Ms Ehsan. Mr Malik did not, as I understood him, rely on any material distinction between the applicable provisions in the three cases. However, there is a potentially important difference. The obligation to pay the fee arises at the time of the application. There is no conceptual difficulty in providing that an application unaccompanied by a fee is invalid from the outset. The requirement to apply for biometric information arises only at a later stage, on receipt of a notice from the Secretary of State. Thus, in Ms Ehsan's case the application was made in December 2011, but it was not until the following February that she was required to make an appointment. Even then it was accepted that there might be a reasonable explanation justifying further delay.

37.

It is difficult to see any reason why a failure at that stage should be treated as retrospectively invalidating the application from the outset, and so nullifying the previous extension under section 3C of her leave to remain. There appears to be nothing in section 7 of the 2007 Act to support such retrospective effect. The revised version of regulation 23(2)(b) (which was in force at the time of the March decision to reject her application as invalid) does no more than give the Secretary of State power to "treat" the application as invalid. There might be some question as to how that wording relates to the terms of section 7(2), but as I have said there was no challenge to its validity. In any event there is no reason to read it as having retrospective effect. The natural reading, which is consistent with the statutory purpose, is to give power to invalidate the application as from the time of the decision, but not before.”

That seems to me an apt parallel for the instant case. There can be no material difference for these purposes between a requirement to supply biometric material and a requirement to supply a passport.

As I have observed, in the Court of Appeal all three of the cases in Iqbal were treated as if they were on the same footing. As the matter was put in paragraph 1 of the judgment of Elias LJ:

“In each case the appellant made an application before leave expired which was treated as invalid by the Secretary of State because it was not presented in accordance with the rules.”

It follows that the distinction made by the Supreme Court, to the effect that the application in Ehsan had been valid at the time it was made, but was subsequently invalidated “as from the time of the decision, but not before”, was not identified by the Court of Appeal. It appears to me to be a distinction which arises in this case.

Just as in the case of Ms Ehsan, this Appellant made an application in proper form. There was nothing further he was obliged to do at that point. I fail to grasp how that was not a valid application at that time. The subsequent failure to provide documentation properly led to the application becoming “invalidated”, but I can see no basis on which it could properly be invalidated retrospectively from the beginning, so that there never was a valid application. That is clearly to be distinguished from a case where the necessary steps for a valid application at the outset (such as payment of the relevant fee) had never been taken. If that is correct, then there was indeed a valid application on 22 October 2014, and time ran accordingly.

For my part, I also accept that the Appellant’s interpretation carries internal inconsistencies and incoherencies. If the Appellant’s application was all along invalid, and a valid application was required, then there was no application before 6 November 2014. The transitional provisions in HC693 would therefore not apply. Yet it is said that, as from 6 November 2014, there was an application to be considered (and by the unchanged paragraph 34G of the Rules). By that paragraph, that would be deemed to be made on the day it was submitted, namely 22 October 2014, and therefore, under the transitional provisions, the old rules would apply to the determination of the application on its merits. However, if that were to be the case, the old rules would also apply to the determination of the validity of the application.

There is a further problem with the Appellant’s submission. If the term “application” is read as “valid application”, then no date could exist within the rules on which an invalid application was submitted. It would follow that the 15 day period for the provision of documents would never begin. It appears to me that is a nonsense.

It is clear that the Rules envisage a consideration of the validity of each application. Whilst it is correct, for the reasons given by Elias LJ quoted in paragraph 12 above, that that is not a “decision” on the substance of the application, I see no insuperable difficulty in placing such consideration within the phrase “the application will be decided in accordance with the Rules in force on 5 November 2014”. The transitional provisions are not to be treated as statute, but as a practical document. The phrase “the application will be decided” seems to me broad enough to encompass the initial consideration of validity. Any other interpretation would produce a surprising contradiction. It would mean, presumably, that the validity of the application would be decided under the new Rules, but then the substance of any valid application would be decided by a reversion to the old Rules, since there would have been an “application” before 5 November.

On the facts of this case, I would hold there was a valid application. The application was made in proper form, using the on-line portal, and was not rendered retrospectively invalid ab initio, but rather “invalidated” from the time the matter was considered on 19 November 2014. That application started the procedural clock.

Were it necessary for the decision in this case, I would hold that the time provision runs from the point when an application, using the on-line portal, is submitted, even where that application subsequently proves to be invalid ab initio. In my view, it is a clear and natural interpretation of the relevant provisions that an application made in proper form, using the on-line portal, starts the clock for all purposes. Any other approach produces incoherence and confusion.

For those reasons I would dismiss this appeal.

I agree