Supreme Court decision on section 3C: Need for rationalisation and simplification of Immigration Rules
By Dr. Catherine Taroni - Immigration Barrister
The matter of R (on the application of Mirza, Iqbal and Ehsan) v Secretary of State for the Home Department UKSC 63 was heard by the Supreme Court on 19 October 2016 and the judgment of Lady Hale, Lord Wilson, Lard Carnwath, Lord Hughes and Lord Hodge was given on 14 December 2016. The appealed Court of Appeal decision is here.
The case considered the application of section 3C of the Immigration Act 1971 which 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 where the application made is procedurally defective in some way.
In two cases (Mr Iqbal and Mr Mirza) the defect in the in-time application made related to non-payment of fees: Mr Iqbal paid an old fee (£29 short of the fee at time of application). Mr Mirza’s application fee was not taken successfully. In the third case (Ms Ehsan), it was due to a failure to provide biometric information or to provide a reasonable explanation for failure to do so.
The need for a statutory mechanism to extend the right to remain pending a final decision on an application to vary was identified as a result of the decision of the House of Lords in Suthendran v Immigration Appeal Tribunal AC 359. Lord Carnwath set out further details of the legislative history of section 3C leave in paragraphs 20-29 of the Supreme Court determination.
The Home Office has policies in relation to flexibility and discretion, and there are Regulations regarding the invalidation of applications.
Lord Carnwarth found it: “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… are entitled to expect the legislative scheme to be underpinned by a coherent view of their meaning and the policy behind them…” and that there was an “‘overwhelming need’ for rationalisation and simplification” (paragraph 30).
The question before the court related to statutory interpretation, as the legality and rationality of the rules was not challenged.
The Supreme Court dismissed the appeals.
Paragraph 33: “I have no doubt that, at least in respect of Mr Iqbal and Mr Mirza, the Court of Appeal reached the correct conclusion. There is no ambiguity in the words of regulation 37 of the 2011 Regulations. It provides 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 is nothing in the regulation to exclude section 3C from its scope.”
ParagRaph 35: “The problem arose because the application had been made very close to the expiry of leave and left no time for correction. It follows that the appeals of Mr Iqbal and Mr Mirza must be dismissed.”
Lord Carnwarth considered that there was a potential difference in the approach to be taken in relation to Ms Ehsan’s case, as a biometrics invitation follows the submission of an application rather than at the date of application, and the question of validity is therefore at a different stage in the process.
Paragraph 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… 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…”
Nonetheless, this appeal was also dismissed.
The application and expiry of Section 3C leave continues to have important and potentially devastating consequences for individuals, and the state of the law clearly concerned the Supreme Court.
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