Supreme Court seeks to simplify issues on validity of applications and Section 3C leave

supreme_court_crest_official-svgThe newly notified  Supreme Court decision, Mirza & Ors, R (on the applications of) v Secretary of State for the Home Department [2016] UKSC 63, at first brush appears as a  short and  easy read, however is quite  loaded with  legislation,  rules and caselaw that makes  very dry and  uninteresting  reading.

It is noteworthy that in Mirza, Lord Carnwath  (with whom Lady Hale, Lord Wilson, Lord Highs and Lord Hodge agreed) admitted to  finding  the case  troubling.    He  found that it was , “particularly disturbing that the Secretary of State herself has been unable to maintain a consistent view of the meaning of the relevant rules and regulations. The public, and particularly those directly affected by immigration control, are entitled to expect the legislative scheme to be underpinned by a coherent view of their meaning and the policy behind them. I agree with the concluding comments of Elias LJ (para 49) on this aspect, and the “overwhelming need” for rationalisation and simplification”.

There was some discussion during the proceedings as to the  extent to which  guidance to officers allowed for a degree of flexibility in the operation of the rules.   In relation to  the Home Office policy  guidance on “Specified application forms and procedures“, it was  observed by the Court, that it  seemed  that  matters  for the Secretary  of State  have proved to be a more onerous task than anticipated because of the number of versions in force at various times- the  guidance  was however noted to  recognise a measure of discretion to depart from requirements of the rules in particular cases.

The issues in summary:

The principal issue raised by the  three appeals was how section 3C applies where an application is made in time, but is procedurally defective for some reason. Section 3C of the Immigration Act 1971 extends a person’s leave to remain pending determination of an application to vary the period of leave, provided that the application is made before the expiry of the original leave.

All three cases concerned students who sought to extend their leave to remain. Rejection and invalidation  of the applications at various points came about as follows:

  • one applicant provided an inadequate Home Office application fee as he was unaware the fee had recently been increased;

  • the other was considered not to have provided any application fee as the Home office was unable to collect payment from the bank details provided;

  • the third failed to make and attend an appointment for providing biometric information within the requisite time period .

Previous Court of Appeal proceedings:

The Court of Appeal held, contrary to the primary submissions of both parties, that section 3C did not extend to an application which was not validly made in accordance with the rules. The Court held that the powers in sections 50 and 51 of the Immigration, Nationality and Asylum Act 2006 to provide for the consequences of procedural failure gave sufficient Parliamentary endorsement for that position. It was  rejected as “wholly unsustainable” the Secretary of State’s argument that notification of invalidity could constitute a relevant decision for the purposes of section 3C, since the context clearly required a determination of the application, not its rejection or a decision that there is no valid application.

The Court of Appeal also rejected a separate argument for one of the appellants  that the procedure in his case was unfair, because of the failure to notify him of the defect in time for him to correct it before the expiration of leave. Elias LJ in the Court of Appeal accepted that “in practical terms” a personal applicant had the advantage that a defect could be more quickly remedied, but short of unreasonable delay (which the Upper Tribunal had not found) there was no obligation on the Secretary of State to prioritise cases where lack of the appropriate fee might be fatal.

Supreme Court proceedings and conclusion of the Court:

In the Supreme Court, on behalf  of the  appellants was  renewed the argument that the word “application” in section 3C is unqualified by reference to any procedural requirements in subsequent regulations, and should not be interpreted by reference to them.  For  the appellants was  reliance  on the original interpretation of the term “application”, as it appeared in the Immigration (Variation of Leave) Order 1976  as requiring no more than “a request in unambiguous terms”.  It was submitted  that there was  no reason to interpret the same word any differently in the equivalent provisions in later statutory enactments, including the 2002 Act.  It was put forward that  there was  no indication that Parliament intended the meaning of that word to be restricted by reference to later provisions relating to fees or biometric information which were not in contemplation at the time.

The Secretary of State in turn also relied upon  previous caselaw  as recognising the consequences of an “invalid” application, an analysis which should be taken as “entrenched” in subsequent legislation in similar form.

The Supreme Court set out the relevant legislation, regulations and Immigration Rules at the material time  of the three applications  and also examined relevant caselaw and  concluded as follows:

  • The present appeals were to be decided within the legislation as it stood, there being no challenge to the legality or rationality of the relevant rules and regulations. The issues had to be approached by the application of the ordinary principles of statutory interpretation. They start from the natural meaning of the words in their context.  In respect of the first two appeals, the Court of Appeal reached the correct conclusion. There was no ambiguity in the words of regulation 37 of the 2011 Regulations. It provided in terms that if an application is not accompanied by the specified fee the application “is not validly made”. In ordinary language an application which is not validly made can have no substantive effect. There was nothing in the regulation to exclude section 3C from its scope.

  • There was nothing in the history of the provisions to support a different approach. It was true that, at the time of the enactment of section 3C in its present form by the 2002 Act, Parliament could not have had in contemplation the relevant provisions of the 2006 Act or the regulations made under it. However, that was nothing in point. The powers given by Parliament in the later Act were made within the same legislative framework as the 2002 Act. In the absence of any limitation on the scope of the powers given to the Secretary of State to prescribe the consequences of procedural failure, there was no reason to exclude section 3C. That was not, as argued on behalf of the appellants, to allow the executive to alter the interpretation of the primary legislation, but rather to determine the scope of the powers given to the executive by Parliament in the later statute.

  • Lord Carnwath agreed with the Court of Appeal’s rejection of Mr Iqbal’s separate ground of appeal based on alleged unfairness. The comments of the Upper Tribunal in Basnet while deserving respect cannot be treated as laying down a universal rule. It was unfortunate that Mr Iqbal was caught out by a recent change in the level of fees. But it is not suggested that there was any failure by the Secretary of State to publicise the change. The problem arose because the application had been made very close to the expiry of leave and left no time for correction.

  • The appeals for the 3 appellants were dismissed and the orders of the Court of Appeal upheld.

Conclusion:

As regards how some flexibility has been provided for  as  catered for by relevant Home Office guidance and the Rules,  the following previous blog post might be relevant:

  • Home Office Applications: The Very Things That Are Likely to Get An Application Rejected As Invalid By The Home Office

A subsequent rejection and invalidation of a timely submitted  extension application by the Home Office  after expiry of  relevant leave has the  following possible effects:

  • The applicant becomes an overstayer

  • An inability to switch into other permissible categories

  • Denial of a right of appeal

  • Inability to continue working legally whilst an application is under consideration

Meticulous preparation of an application  prior to submission is a must. Further, endeavouring  to submit an application to the home office  as  early as is  permissible is a relevant consideration to cater for  the likely event  of  rejection  of an application which may be  received prior to expiry of leave,  thus  leaving some room to rectify any errors.

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