Halil and Another v Davidson

A person whose limited leave to enter or remain has expired cannot appeal under section 14(1) of the Immigration Act 1971 against the refusal of a later application. The Secretary of State has no power to vary leave after its expiry. A subsequent application may instead be treated as an application for leave de novo, but refusal of that application is not appealable to an adjudicator under section 14(1).

If a notice grants a short period of fresh leave, an appeal can arise only after a timely application to vary that subsisting leave and a refusal of that application.

The appellants, Turkish Cypriots, had received successive periods of limited leave to remain in the United Kingdom. Their final leave expired on 3 July 1975. They later applied for further leave, which the Secretary of State refused using form APP101. The form purported to vary their leave so that they could remain for one further month to arrange their departure.

The appellants appealed to an adjudicator. The adjudicator held that the appeal had no standing and that he lacked jurisdiction. The Divisional Court and the Court of Appeal refused certiorari, although the Court of Appeal granted leave to appeal to the House of Lords. The central issue was whether the APP101 decision generated a right of appeal under section 14(1) of the Immigration Act 1971.

1. Appeal dismissed unanimously. Lord Russell of Killowen delivered the substantive speech. Lord Wilberforce, Viscount Dilhorne, Lord Salmon and Lord Fraser of Tullybelton agreed with it and with the proposed disposition.

2. Per Lord Russell, the Secretary of State had no power to vary limited leave after that leave had expired. The House's decision in Suthendran v Immigration Appeal Tribunal [1977] AC 359 fully governed the case. An application framed as one to vary expired leave could be treated as an application for leave de novo, but refusal of that application carried no appeal to an adjudicator under section 14(1) of the Immigration Act 1971.

3. On any possible construction of form APP101, the appellants had no valid appeal. If it refused fresh leave, the refusal was not appealable. If its one-month period for arranging departure constituted fresh limited leave, an appeal could arise only after a prompt application to vary that grant and a refusal of that application. No such application had been made. If the form conferred and removed no rights, it equally supplied no foundation for an appeal.

4. The adjudicator was therefore plainly right to disclaim jurisdiction. The appellants' submissions were inconsistent with Suthendran.

5. Lord Russell inclined to retain his view that the short period allowed by APP101 could be construed as a grant of leave de novo, notwithstanding the contrary view expressed in R v Immigration Appeal Adjudicator, ex parte Bhanji [1977] Imm AR 89. The point made no difference because no application to vary that period had been made. Changes to administrative practice had also rendered the issue academic.

6. Lord Russell further considered that the Court of Appeal had no sound basis for granting leave to appeal to the House. The appeal was dismissed.

1. House of Lords: Dismissed the appeal unanimously and upheld the adjudicator's conclusion that he lacked jurisdiction.

2. Court of Appeal: Refused certiorari but granted leave to appeal to the House of Lords.

3. Divisional Court: Refused certiorari.

4. Adjudicator: Held that the purported appeal had no standing and disclaimed jurisdiction.