QI v The Secretary of State for the Home Department

For paragraph 245ZX(l) of the Immigration Rules HC 395, an applicant’s “current … leave to remain” means the substantive period of limited leave. It does not include leave extended by section 3C of the Immigration Act 1971.

Section 3C leave arises only after substantive leave expires while an outstanding variation application remains undecided. Reading it into paragraph 245ZX(l) would prevent time from running and deprive the temporal requirement of effect. Appeal grounds, even if treated as a section 120 statement, do not constitute a fresh application requiring decision by the Tribunal.

The appellant, a Pakistani national, applied on 29 May 2009 for leave to remain as a Tier 4 (General) Student. His existing student leave expired on 30 May 2009. The Secretary of State refused the application under paragraphs 245ZX(c) and 245ZX(l) of the Immigration Rules HC 395.

An Immigration Judge dismissed the appeal. Following an order for reconsideration, treated under later legislative changes as permission to appeal to the Upper Tribunal, the appellant contended that the judge had wrongly disregarded an ACCA letter, wrongly applied paragraph 245ZX(l), and wrongly found the course was not at NQF level 7.

The central issue was whether the proposed course, commencing on 20 July 2009, met the requirement that studies begin no more than one month after the applicant’s current leave expired.

1. Appeal dismissed. The Immigration Judge made an error by declining to consider the ACCA letter solely because it was produced after the application. As the letter pre-dated the application, its relevance should have been considered under section 85(4) of the Nationality, Immigration and Asylum Act 2002. The respondent also conceded that the ACCA course was at NQF level 7. Neither point was material to the result.

2. Paragraph 245ZX(l) of the Immigration Rules HC 395 required the appellant’s proposed studies to begin within one month after expiry of his substantive limited leave. “Current … leave to remain” could not include section 3C leave under the Immigration Act 1971. Such leave arises only when existing leave has expired without the variation application having been decided. If it were included, time would never begin to run and the requirement would be meaningless.

3. The appellant’s substantive leave expired on 30 May 2009 and his course was to start on 20 July 2009. He therefore failed the temporal requirement. The Policy Guidance reinforced, but was not the legal source of, that requirement.

4. AS (Afghanistan) & NV (Sri Lanka) [2009] EWCA Civ 1076 did not require appeal grounds to be treated as a fresh application. The Tribunal’s jurisdiction under section 85(2) presupposed an existing decision under appeal; it did not extend to an application not yet decided. Nothing in a section 120 statement altered the appellant’s failure to meet the temporal rule.

5. Accordingly, the Immigration Judge had not made a material error of law and the dismissal of the appeal stood.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the Immigration Judge’s dismissal.
• Immigration Judge: dismissed the appeal in a determination notified on 13 October 2009.
• Reconsideration: an order for reconsideration was obtained and, following legislative changes on 15 February 2010, had effect as permission to appeal to the Upper Tribunal.