Ram v JD Wetherspoon Plc

Where a person with limited leave to enter or remain makes an in-time application to vary that leave, Immigration Act 1971, section 3C extends the existing leave while the application and any permitted appeal remain outstanding. That extension also preserves an existing entitlement to work, subject to the conditions attached to the original leave. A work permit under the former regime operated to define the period and conditions of leave, rather than constituting a separate source of employment permission. Compensation for unfair dismissal should therefore not be capped merely because the original period of leave has expired, where the claimant would have made an in-time application.

The claimant, an Indian national employed as a pub manager, was unfairly dismissed. The Employment Tribunal refused reinstatement and re-engagement and limited loss-of-earnings compensation to 11 January 2010, when the claimant’s five-year work permit and associated leave expired. It considered that continued employment would thereafter have been unlawful.

The claimant appealed against that limitation. The central issue was whether an in-time application for indefinite leave to remain would have extended not only his permission to remain but also his entitlement to continue working for the respondent.

1. Appeal allowed. The Employment Tribunal had erred in capping compensation at 11 January 2010. The compensation issue was remitted for reassessment without that cut-off.
2. Section 3C of the Immigration Act 1971 extends limited leave where an application to vary it is made before expiry and remains undecided, including during relevant appeal periods. The claimant’s actual application, and the application he would hypothetically have made had he remained employed, fell within section 3C.
3. The Court of Appeal’s decision in Klusova v London Borough of Hounslow [2008] ICR 396 was directly applicable and binding. It established that a person lawfully present with an existing entitlement to work who makes a valid in-time application may continue in employment while the application is determined.
4. Under rule 129 of the Immigration Rules, the work permit operated to set the period of leave to enter. The condition attached to that leave was that the claimant continued in the approved employment. Section 3C therefore extended the entitlement to work subject to that condition.
5. The question of the appropriate tribunal and any further immigration-related issues was left to the Regional Employment Judge and the remitted tribunal.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s compensation cut-off and remitted the issue for reassessment.
• Employment Tribunal at Reading: found the dismissal unfair, refused reinstatement and re-engagement, and limited loss-of-earnings compensation to 11 January 2010.