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Section 3C leave & Judicial review - Has it come to an end or not?

In the current version (8.0) of her policy, titled “Leave extended by section 3C (and leave extended by section 3D in transitional cases)”, published on 6 March 2017, the Secretary of State for the Home Department mentions on four occasions that “section 3C leave can exist only where it is a seamless continuation of leave, either extant leave or section 3C leave.”

This is mentioned in the context of out of time appeals or applications for administrative review when the Tribunal or the Secretary of State, respectively, accept the application for permission to appeal or for administrative review notwithstanding it was made out of time. It is also mentioned in the context of a decision by the Secretary of State on an application extending leave under s.3C, when that decision is subsequently withdrawn after s.3C leave has come to an end. In all circumstances, the Secretary of State’s interpretation of the meaning of the statutory provision is that “when section 3C leave has come to an end, it cannot be resurrected.”

An unlawful decision is a nullity – section 3C leave never came to an end

When has s.3C leave in fact come to an end, however? In the landmark judgment of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the House of Lords ruled that all species of public law error render an executive act ultra vires, unlawful and null ab initio. In Boddington v British Transport Police [1999] 2 AC 143, the House of Lord ruled that a public law error rendering an executive act a nullity can be relied on as a collateral challenge in ordinary (non-judicial review) proceedings even when the act has not been quashed.

Judicial review of a decision purportedly ending section 3C leave

In view of this, if a decision of the Secretary of State on an application by an individual whose leave, until the time decision, was extended by s.3C is subsequently quashed or declared unlawful following judicial review proceedings, the decision is void and never had effect. As a result, s.3C leave never came to an end.

For example, if an individual makes an in-time application to the Secretary of State to vary their leave and that application is refused and certified as clearly unfounded under s.94 of the Immigration, Nationality and Asylum Act 2002 whilst they are on s.3C leave, s.3C leave comes to an end on the date of the decision as there is no in-country right of appeal. However, if the certification decision is quashed as unlawful by the judicially reviewing court, according to the principle set out in Anisminic, that decision was null to begin with. As a result, s.3C leave never ceased.

The Home Office policy regarding withdrawn decisions – Applicants in a worse position

In her aforementioned policy, the Secretary of State states that “where [a] decision is withdrawn after section 3C leave has come to an end, withdrawal of the decision does not mean that the person once again has section 3C leave.” However, it is also stated that a person whose s.3C leave has ended and cannot be resurrected after a decision is withdrawn should not be disadvantaged by this. The outstanding application should be considered as if the person still had s.3C leave and, if upon reconsideration leave is granted, the break in the person’s leave should not be held against them in any subsequent application. For example, if the person then proceeded to make an application on the basis of 10 years’ lawful and continuous residence, they would be treated as being lawfully present during the period of the break in leave.

This is a small concession and is subject to any future changes to the Secretary of State’s published policy. Further, it is of little value when an individual is detained or is subject to the hostile environment on the basis of being an overstayer until a fresh decision, following that which was withdrawn, is made and any appeal against it, in the event of refusal, is determined.

Therefore, in circumstances where the Secretary of State has undertaken to withdraw her decision without judicial review proceedings being initiated, individuals are in a worse position than they would have been had the decision been quashed or declared unlawful following judicial review. That is equally the case when individuals sensibly – in an effort to avoid ongoing litigation – agree to settle judicial review proceedings following the grant of permission, when the Secretary of State offers to withdraw the decision under challenge. In both cases, the validity of the withdrawn decision and, by extension, the question whether s.3C leave has come to an end, has not been considered by the courts.

Collateral challenges to the lawfulness of withdrawn decisions

It is in such cases that the principle in Boddington becomes significantly important: the invalidity of the withdrawn decision could be relied on as a collateral challenge in non-judicial review proceedings, to consider whether s.3C leave ever did, in fact, come to an end or not (e.g. in an appeal to the  First-tier Tribunal, where this question is relevant). After all, in Lumba v. Secretary of State for the Home Department [2011] UKSC 12, Lord Dyson held, in the context of a private false imprisonment action against a decision to detain vitiated by a public law error, that “the significance and effect of that error cannot be affected by the fortuity that it is also possible for a victim to challenge the decision by judicial review proceedings (which are subject to tighter time limits than private law causes of action) and that judicial review is a discretionary remedy.” (paragraph 70)

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