Weiss, R (on the application of) v Secretary of State for the Home Department

Where the Immigration Act 1971 requires an application to be made in a prescribed form, that requirement is mandatory. A court cannot require indefinite leave to be granted without a formal application unless the procedural requirement is unlawful. An immigration judge’s view that an applicant would be likely to succeed under Rule 276B of the Immigration Rules is not a determination of entitlement, especially where a stated requirement was not addressed. A one-stop appeal may permit overlapping grounds to be considered, but it does not dispense with the prescribed application.

Mr Weiss, a Namibian national married to a United Kingdom national, was refused permanent residence under the Immigration (European Economic Area) Regulations 2006 because the marriage had taken place in the United Kingdom rather than in an EEA state. An Immigration Judge dismissed his EEA appeal but allowed it under Article 8, observing that he was likely to succeed under Rule 276B because of more than ten years’ lawful residence.

The Secretary of State later granted discretionary leave and required a fresh application for indefinite leave to remain. The Administrative Court dismissed judicial review. The central issue was whether the Immigration Judge had already determined the Rule 276B entitlement despite the absence of a prescribed application.

Appeal dismissed unanimously. Lord Justice Longmore gave the judgment. Lord Justice Wilson and Lord Justice Mummery agreed.

1. Section 31A of the Immigration Act 1971 requires an application of a prescribed kind to be made in the prescribed form and requires any prescribed procedural steps to be taken. Mr Weiss had never made an application for indefinite leave to remain on the ground of continuous residence. The Secretary of State was therefore entitled to require him to make one. The requirement was not unlawful, and the court could not interfere with it.
2. The Immigration Judge had not decided that Mr Weiss was entitled to indefinite leave under Rule 276B of the Immigration Rules. The determination stated only that an application was likely to succeed. It did not address the requirement of sufficient knowledge of English and life in the United Kingdom, and it did not purport to grant indefinite leave.
3. AS (Afghanistan) v SSHD [2009] EWCA Civ 1076 was distinguishable. The passage relied on concerned matters brought together under a one-stop appeal, which an Immigration Judge could, and perhaps should, determine. There was no one-stop notice in this case, and the absence of a prescribed application prevented the Immigration Judge from deciding the Rule 276B application.
4. The likely success of a properly made application, and the administrative burden of making it, did not make the Secretary of State’s requirement unlawful. The appeal was dismissed.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 803: appeal dismissed.
• High Court, Queen’s Bench Division, Administrative Court — Wyn Williams J dismissed judicial review on 2 September 2009, holding that no formal Rule 276B application had been made and that the relevant requirements had not been conclusively determined. Dobbs J had refused permission on the papers; Sullivan J later granted permission to appeal after an oral hearing.