EL (Jamaica) v Secretary of State for the Home Department

An application made before existing leave expires may engage the statutory continuation-of-leave provisions in the Immigration Act 1971. It may therefore be arguable that the applicant satisfies paragraph 284(i) of HC395. The Court of Appeal granted permission on that issue without deciding its merits.

An Article 8 challenge based on delay allegedly caused by misapplying the immigration rules depends on success on the underlying rules issue. Relatively modest delay, assessed against the engagement of Article 8(1) rights and the Article 8(2) justification of effective immigration control, was insufficient to warrant permission on the alternative ground.

EL entered the United Kingdom lawfully as a visitor on 20 December 2001 with leave until 20 June 2002. Before that leave expired, he applied to vary his leave so that he could remain as the spouse of a person present and settled in the United Kingdom.

The Secretary of State refused the application under paragraph 284 of HC395, treating EL as having overstayed and finding no exceptional circumstances. The Secretary of State also considered Article 8 of the European Convention on Human Rights but regarded any interference as justified.

On reconsideration, the Asylum and Immigration Tribunal upheld that reasoning. Richards LJ refused permission to appeal on paper. On renewal, the central issues were whether sections 3C and 2(a) of the Immigration Act 1971 made the paragraph 284(i) issue arguable, and whether delay could support an alternative Article 8 challenge.

Application granted in part. Permission to appeal was granted on the paragraph 284 ground and refused on the Article 8 delay ground. The Court did not finally determine the construction of the relevant immigration provisions.

1. Paragraph 284(i). The Tribunal had held that an application made before expiry of visitor leave could not circumvent the six-month limitation while the application was pending. EL relied on sections 3(c)(i), 2(a) and 3C of the Immigration Act 1971, as interpreted in FB and others v The Secretary of State [2006] UKIAT 00030. Those provisions arguably continued limited leave where an application to vary was made before the existing leave expired. Although the interpretation of section 3C presented difficulties, there was enough in the argument and in FB to justify permission on this ground.
2. Article 8 delay. The alternative argument was not free-standing. It depended on success under paragraph 284 and on delay caused by an alleged misinterpretation or misapplication of the immigration rules. If EL failed on paragraph 284, that premise fell away. Applying the balancing approach identified by the House of Lords in Huang v The Secretary of State [2007] UKHL 11, the relatively modest delay was nowhere near sufficient to provide a basis for challenging the refusal by reference to the extent of engagement under Article 8(1) and the countervailing justification under Article 8(2), including effective immigration control.
3. The Court observed that any humanitarian concerns arising at that stage could be raised in a further application to the Secretary of State under Article 8.

The order was: application granted in part.

• Court of Appeal (Civil Division): Richards LJ had refused permission to appeal on paper. On renewal, Auld LJ granted permission on the paragraph 284 issue but refused permission on the Article 8 delay issue.
• Asylum and Immigration Tribunal: On reconsideration, the Tribunal upheld the Secretary of State’s refusal under paragraph 284 and his Article 8 reasoning.