JH (Zimbabwe) v Secretary of State for the Home Department

An application made on the prescribed form is not necessarily invalid merely because the applicant cannot satisfy the substantive conditions for the form of leave sought. Where regulations specify particular conditions for invalidity, those conditions must be considered and applied. The interaction between those regulations and paragraph 32 of the Immigration Rules requires examination. A later application may potentially vary an earlier application for leave, including where section 3C of the Immigration Act 1971 is engaged. A jurisdictional decision that the Tribunal had no power to entertain an appeal may raise a question about the scope of section 103B of the Nationality Immigration and Asylum Act 2002. These issues were arguable and required determination by a full court.

The appellant entered the United Kingdom as a visitor in October 2004 and applied before her leave expired to remain as the spouse of a person settled in the United Kingdom. She used the prescribed form for indefinite leave to remain, although she could not qualify for that status. After the Home Office sent her the form for limited leave to remain, she submitted it after her original leave had expired.

On reconsideration, the Senior Immigration Judge held that the first application was invalid because the appellant had not supplied documents required by paragraph 32 of the Immigration Rules. He therefore concluded that the Tribunal had no jurisdiction and took no further action under rule 9 of the AIT (Procedure) Rules 2005. The appeal concerned whether the first application was valid, whether the later application varied it so as to engage section 3C of the Immigration Act 1971, and whether an appeal lay to the Court of Appeal under section 103B of the Nationality Immigration and Asylum Act 2002.

1. Permission granted. The appellant’s revised arguments disclosed an arguable case requiring consideration by the full court.
2. The use of the prescribed form for indefinite leave did not, on its face, make the application invalid merely because it was bound to fail on the substantive conditions for indefinite leave. Failure to provide required documents could invalidate an application, but regulations 11 and 12 of the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 specified the relevant procedure. Regulation 12 contemplated invalidity only where the Secretary of State notified the applicant of the failure and the applicant failed to comply within the specified period. Those conditions had not occurred.
3. The relationship between paragraph 32 of the Immigration Rules and the regulations made by statutory instrument required determination. The court was not prepared at the permission stage to conclude that paragraph 32 independently invalidated the application where the regulatory conditions for invalidity had not been met.
4. The later application for limited leave might be capable of being treated as a variation of the earlier application. The restrictive approach in DA (Section 3C - meaning and effect) Ghana [2007] UKAIT 00043 was sufficiently arguable to warrant consideration by the full court. The issue arose under section 3C, which prevents a fresh variation application while leave is extended under that section but permits variation of an application made before the original leave expired.
5. The Tribunal’s jurisdictional conclusion also raised an arguable question under section 103B of the Nationality Immigration and Asylum Act 2002: it was uncertain whether an appeal had been reconsidered for the purposes of section 103B(1) when the Tribunal decided that it had no jurisdiction and could take no further action under rule 9. The court declined to resolve that issue summarily. Order: application granted.

• Court of Appeal (Civil Division): permission to appeal granted from the reconsideration decision of the Asylum and Immigration Tribunal. The Tribunal had held that the first application was invalid, that it lacked jurisdiction to entertain the appeal, and that it was required to take no further action under rule 9 of the AIT (Procedure) Rules 2005.
• The judgment states that an earlier reconsideration decision had been set aside by the Court of Appeal by consent and the matter remitted to the Tribunal. The citation of that earlier decision is not stated in the judgment.