QI (Pakistan) v Secretary of State for the Home Department

Where an in-time application to vary limited leave remains undecided when the original leave expires, section 3C of the Immigration Act 1971 extends that original leave. It does not create a separate and inferior form of leave.

Accordingly, a Tier 4 requirement referring to an applicant’s current leave to remain includes leave extended under section 3C. The one-month rule for the start of studies must be assessed by reference to that extended leave. A tribunal errs if it treats section 3C leave as arising only after the Secretary of State has decided the variation application.

The appellant, a Pakistani national with student leave expiring on 30 May 2009, applied on 29 May 2009 for further Tier 4 student leave. His proposed course was due to start on 20 July 2009.

The Secretary of State refused the application under paragraph 245ZX(l) of the Immigration Rules. She treated the interval between the expiry of the original leave and the course start as exceeding one month. The tribunal dismissed the appeal and, on reconsideration, the Upper Tribunal upheld that construction on 5 July 2010.

The appeal concerned whether the appellant’s leave, extended under section 3C of the Immigration Act 1971 while his variation application and appeal were pending, counted as his current leave for paragraph 245ZX(l).

1. Appeal allowed unanimously. Pill LJ, with whom Longmore and Etherton LJJ agreed, held that the appellant’s application did not fail under paragraph 245ZX(l). The application was remitted to the Secretary of State so that leave to remain could be granted.

2. Section 3C applies where an application to vary limited leave is made before its expiry and remains undecided when it expires. Its effect is a statutory extension of the original leave. The extension continues while the application is pending and, where applicable, through the statutory appeal stages. The court applied the analysis of Richards LJ in JH (Zimbabwe) v SSHD [2009] EWCA Civ 78.

3. The phrase current leave to remain in paragraph 245ZX(l) includes leave so extended. The rule does not distinguish substantive leave from section 3C leave. The Upper Tribunal’s contrary view in this case, and in HM and Others v SSHD [2010] 446 UKUT (IAC), was incorrect. Section 3C leave arises when the original leave expires without the variation application having been decided, not only after a decision has been made.

4. The court also decided that it was proper to give a reasoned judgment despite the Secretary of State’s willingness to consent to the appeal. Applying the public-interest approach in R v SSHD ex parte Salem [1999] 1 AC 450, the issue was a discrete point of statutory construction, did not depend on particular facts, and was likely to affect many student-leave cases. The construction of statutes and Immigration Rules is for the judiciary, not to be left to agreed statements of reasons.

• Court of Appeal (Civil Division) — allowed the appeal and remitted the application to the Secretary of State: [2011] EWCA Civ 614.
• Upper Tribunal (Immigration and Asylum Chamber) — on reconsideration, dismissed the appellant’s appeal on 5 July 2010, holding that paragraph 245ZX(l) referred only to substantive leave.
• Tribunal — dismissed the appellant’s appeal on 13 October 2009; an order for reconsideration was made on 19 November 2009.