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Invalid applications and automatic extensions of leave

On 23 December 2015, the Supreme Court (Lady Hale, Lord Carnwath and Lord Hughes) granted permission to appeal the decision of the Court of Appeal in Iqbal v SSHD [2015] EWCA Civ 838, which decided that an application rejected as invalid, did not extend a person’s leave to remain even though the application had been made before the expiry of that person’s leave.

The contrary contention, had never previously been argued before the court in any other case, and in the lead case upon the effect of s3C Immigration Act 1971 of JH (Zimbabwe) v SSHD [2009] EWCA Civ 78, the court had acted on the undisputed assumption that the statutory extension would only apply if the application to vary was a valid one under the rules.  Unperturbed by this, and despite having run an entirely different argument before the Upper Tribunal, it was argued by the appellant, albeit in agreement with the Secretary of State, that an application which is invalid under the immigration rules, may nevertheless be an application which engages and brings into effect the automatic extension provisions in s3C.  The difference between the parties being that whereas the Secretary of State contended that if the application was decided after the expiry of leave, leave will terminate at the date the invalidity decision was notified; the appellant argued that notification of invalidity was not a decision for the purposes of s3C.

Elias LJ giving the only judgment (with whom LLJ Rafferty and Beatson agreed) rejected the Secretary of State’s contention that notification of invalidity constitutes a relevant decision within the meaning of s3C.  That was wholly misconceived because rejection of an application as invalid, was not a determination of the application to vary at all.

As observed by the court in argument (and accepted by the appellant), the consequences of the appellant’s argument, if correct, was that the making of an invalid application prior to the expiry of leave to extend a person’s leave, would be an application within the meaning of s3C that would serve to extend their leave indefinitely.  Understandably, Elias LJ confessed reluctance to accept that Parliament had intended an outcome where anyone lawfully present in the UK could extend their leave indefinitely by such a simple device, unless the statutory language permitted no other acceptable construction.

Unsurprisingly perhaps, the court held that it was possible to construe the word ‘application’ in s3C as meaning a valid application.  This was not to allow subsequent regulations to determine the construction of the statute; but because there had always been a statutory power known to Parliament, that enabled regulations to be made by the Secretary of State, for prescribing the formal requirements of certain applications and stipulating consequences for non-compliance,  which included invalidation.  It mattered not that Parliament would not have known how those powers would have been exercised in practice.

Notwithstanding these conclusions on the points of statutory construction, the court of appeal did find merit in the appellant’s submissions as to the unfairness for applicants and their employers, both of whom would unwittingly be committing a criminal offence once the original period of leave had expired, in the harsh results that were produced as a result of delay in processing postal applications.  Although the court observed that the 2014 amendments to the immigration rules to allow an applicant 10 days to remedy what would otherwise be an invalid application (r. 34C(b)- which does not apply to failure to enrol biometric information), ameliorated some of the unacceptable and arbitrary consequences arising from the application of the rules; that did not assist the appellant, as the changes did not operate retrospectively and the finding by the Upper Tribunal that there had been no unreasonable delay in rejecting the application, had not been subject of any appeal.

It remains to be seen, therefore, whether the Supreme Court will give applicants (and their employers) any reprieve from the arbitrary and unacceptable consequences that arise from this key provision in the system of immigration control.

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