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

An application made after limited leave has expired does not attract the statutory extension of leave or a right of appeal against refusal under the statutory appeal scheme. The Secretary of State has no general discretion to treat expired leave as continuing or to create an appeal right not provided by statute. Any discretion to overlook technical non-compliance with the Immigration Rules does not extend that far.

A legitimate expectation must arise from a sufficiently clear commitment by the public authority. A request for further information, silent on leave and appeal rights, does not generate such an expectation. It is not irrational to separate refusal of an application from later removal action, particularly where voluntary departure and any challenge to the refusal may first be considered.

The claimant, a Jamaican national, sought judicial review of decisions refusing leave to remain as the unmarried partner of a person present and settled in the United Kingdom. Her application was posted one day after her student leave expired. The Secretary of State refused the application and concluded that there was no right of appeal.

The claimant argued that the Secretary of State should have treated the application as made in time, or should have recognised a legitimate expectation of an appeal. She also argued that removal directions should have been issued immediately, thereby generating an appeal concerning removal and her Article 8 case. The claim challenged the decisions of 21 December 2006, 8 May 2009 and 13 January 2010.

1. The claim was dismissed. The application was posted after the claimant’s limited leave had expired. Section 3C of the Immigration Act 1971 therefore did not extend her leave. Under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, refusal did not generate a right of appeal because the refusal did not result in the loss of extant leave.

2. The Secretary of State had no discretion to treat expired leave as subsisting or to confer a statutory appeal right. A limited discretion to overlook trivial technical failures in applying the Immigration Rules could not displace the statutory scheme. Even if a wider discretion existed, refusing to create an extra-statutory appeal would not have been irrational, given the expiry of leave and the substantial evidential deficiencies.

3. The legitimate expectation argument failed. Applying the approach in R (Bibi) v Newham London Borough Council [2001] EWCA Civ 607, the court had to examine carefully what the public authority had said or done. The letter requesting further documents indicated only that the application would be considered. It contained no commitment to overlook the absence of extant leave or to provide an appeal.

4. The failure to initiate removal action at the same time as refusing the application was not irrational. It was reasonable to allow voluntary departure and to await any challenge to the refusal. TE (Eritrea) v Secretary of State for the Home Department [2009] EWCA Civ 174 did not establish that refusal and removal appeals must always be combined. The claimant had no underlying refusal appeal, and the circumstances differed materially.

5. The Secretary of State was awarded 90 per cent of his costs, subject to the restriction that costs incurred during periods of public funding were not enforceable without further order.

Not stated in the judgment.