Pasha, R (On the Application Of) v Secretary of State for the Home Department

Where relevant immigration guidance makes a discretion conditional on authorised employment not being interrupted for more than three months and on interruptions not exceeding six months in total, both limits must be satisfied. An interruption exceeding three months fails the condition even where the aggregate period remains below six months. A challenge alleging improper exercise of the discretion is not arguable where the applicable threshold is not met.

The appellant renewed an application for permission to appeal from a decision of Supperstone J in the Administrative Court, reported as [2011] EWHC 441 (Admin). At the hearing, all grounds were rejected except an allegation that the respondent had failed properly to exercise a discretion in a case where continuous residence had been broken.

For the purpose of deciding the remaining ground, the Court assumed that the relevant interruption was five months and one week, between revocation of the appellant’s work permit and the grant of a further work permit on 5 March 2008. The central issue was whether that interruption satisfied the conditions in the relevant guidance.

Lord Justice Hooper dismissed the remaining ground and refused permission to appeal.

1. The only surviving ground concerned an alleged failure by the respondent to exercise discretionary powers properly where continuous residence had been interrupted. The court proceeded on the assumption that the interruption was five months and one week.
2. On the assumed terms of the relevant guidance, the discretion could be exercised only where authorised employment had not been broken by an interruption exceeding three months and where interruptions did not amount to six months in total. These were conditions governing the exercise of the discretion.
3. The interruption exceeded three months. Accordingly, the first condition was not met, regardless of the fact that the assumed interruption did not reach six months in total.
4. It was therefore not arguable that the respondent had failed properly to exercise the discretion on this basis. The other grounds had already been rejected at the oral hearing. The remaining ground was dismissed and permission to appeal was refused.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 955 , the remaining ground was dismissed and permission to appeal was refused.
2. High Court of Justice, Queen’s Bench Division: The appeal arose from a decision of Supperstone J, reported as [2011] EWHC 441 (Admin) .