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

Under section 3(3)(a) of the Immigration Act 1971, leave may be varied only where existing leave remains in force. A later grant of leave cannot, by implication, revive leave previously curtailed or retrospectively convert an unlawful period into continuous lawful residence. An endorsement stating that new leave supersedes an earlier endorsement cannot create a legitimate expectation that curtailed leave was revived. Where an applicant was notified of curtailment and applied for further leave while unlawfully present, a challenge based on the Secretary of State’s discretion to grant indefinite leave to remain will generally fail.

The claimant challenged the refusal of indefinite leave to remain under paragraph 134 of the Immigration Rules. He had held work-permit leave, but that leave was curtailed after a compliance visit found that he was working for another employer and in an unauthorised role. A later application resulted in a residence permit stating that leave was varied and superseded the previous endorsement. The claimant argued that this revived or varied his earlier leave, preserving five years’ continuous lawful residence. Alternatively, he argued that the Secretary of State should have exercised discretion in view of the gap between the curtailment and the later grant.

1. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, to be assessed if not agreed.

2. Section 3(3)(a) of the Immigration Act 1971 permits variation of limited leave, including by enlarging its duration, but presupposes that leave exists at the time of variation. When the claimant’s later application was decided, his earlier leave had already been curtailed and he had no leave to remain. The immigration officer therefore had no power under that provision to revive the curtailed leave and vary or extend it.

3. The handwritten passport endorsement and the administrative record describing the application as superseding the previous endorsement could not revive leave which had been curtailed. They consequently could not create a legitimate expectation that the claimant’s residence had remained lawful.

4. The decision in BD Nigeria did not assist. It concerned a lawful period of absence, whereas the relevant period here was one during which the claimant had no lawful leave.

5. The Secretary of State accepted that a discretion existed in relation to the indefinite-leave application. However, the claimant had been notified of the curtailment and applied for further leave while unlawfully present. In those circumstances, the challenge to the exercise, or alleged failure to exercise, that discretion could not succeed.

The claim was brought by judicial review. Permission was granted on the issue of whether the claimant had completed a continuous period of five years’ lawful residence. The Administrative Court dismissed the claim.