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

A pending application for variation of immigration leave may be varied before it is decided. Section 3C of the Immigration Act 1971 does not confine a variation to an application made for the same purpose or on the same prescribed form. It prevents serial fresh applications, while allowing the single pending application to be amended.

The validity and nature of an application depend on what the applicant actually submitted. An application made on the prescribed form for indefinite leave was valid, even though it was bound to fail on its merits. A tribunal decision, made on a remitted reconsideration, that it lacks jurisdiction is appealable under section 103B of the Nationality, Immigration and Asylum Act 2002.

JH, a Zimbabwean visitor, applied before the expiry of her leave for indefinite leave to remain as the spouse of a settled person. The application used the prescribed form for indefinite leave, although she could not qualify for it. The Home Office sent her a form for limited leave, which she completed. It later refused that application.

An immigration judge allowed JH’s appeal on article 8 grounds. After reconsideration and a consent order setting aside a later tribunal decision, the case was remitted. On the further reconsideration, Senior Immigration Judge Spencer held that the first application was invalid, that the later application could not vary it, and that there was therefore no right of appeal.

The central issues were whether the first application was valid, whether the second was a variation or withdrawal of it, and whether the Court of Appeal had jurisdiction to hear a further appeal.

1. Appeal allowed unanimously. Richards LJ gave the judgment, with which Wall and Laws LJJ agreed. The Senior Immigration Judge’s jurisdictional decision was made on the reconsideration ordered after remittal. It was therefore appealable under section 103B of the Nationality, Immigration and Asylum Act 2002. Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 did not apply after the tribunal had accepted, determined and previously reconsidered the appeal.

2. The first application was valid. Its character depended on what JH actually applied for, not on the leave she could realistically obtain. She had applied, in the prescribed form and in express terms, for indefinite leave to remain. The failure to provide supporting documents did not invalidate it without the notification required by the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003. Paragraph 32 of the Immigration Rules (HC 395) could not displace that regulatory scheme.

3. Under section 3C of the Immigration Act 1971, one timely application extends the existing leave while it remains undecided and through any appeal process. Section 3C(4) prevents additional applications during that period, but section 3C(5) permits variation of the pending application. A variation may seek leave for a different purpose and use a different prescribed form. The Court rejected the restrictive approach in DA (Section 3C – meaning and effect) Ghana [2007] UKAIT 00043, while accepting that no variation is possible after the original application has been decided.

4. On the facts, returning the form supplied by the Home Office did not withdraw the first application. The second application was properly treated as a variation. JH’s original leave therefore remained extended when the Secretary of State refused the application, giving her a right of appeal under section 82(1)(d) of the 2002 Act.

5. The case was remitted to a differently constituted tribunal to reconsider the substantive article 8 issue. Permission to apply for judicial review was refused because the statutory appeal was an adequate alternative remedy.

1. Court of Appeal (Civil Division): Allowed JH’s further appeal under section 103B of the Nationality, Immigration and Asylum Act 2002, set aside the jurisdictional outcome, and remitted the case for reconsideration.
2. Asylum and Immigration Tribunal: Senior Immigration Judge Spencer, on a remitted reconsideration, held that JH had no right of appeal because her first application was invalid and the second could not vary it.
3. Earlier tribunal proceedings: An immigration judge had allowed JH’s appeal on article 8 grounds. A subsequent reconsideration dismissed it, but that decision was set aside by consent in the Court of Appeal and remitted for a fresh reconsideration.