CHH v The Secretary of State for the Home Department

Where a refusal of variation of leave carries only the restricted appeal grounds in section 88 of the Nationality, Immigration and Asylum Act 2002, regulation 5 of the Immigration (Notices) Regulations 2003 permits service without an appeal form. If the recipient then advances a human-rights, asylum or race-discrimination claim, the decision-maker must re-serve the decision with an appeal form.

The time for an in-country appeal runs from the re-served notice. The period in which an appeal could be brought for section 3C purposes includes the interval before re-service. Leave therefore continues where the original application was made in time, despite the absence of an appeal form and the lapse of time since the original decision.

The appellant, a Jamaican national, applied before expiry of her discretionary leave for further leave to remain. The Secretary of State refused the application in February 2009. The notice stated that appeal rights were restricted by section 88 of the Nationality, Immigration and Asylum Act 2002 and did not include an appeal form.

Following further representations raising human-rights matters, the Secretary of State sent a further refusal letter with an appeal form in February 2010. The appellant appealed within ten working days. The First-tier Tribunal held that no valid appeal existed because the time for appeal had run from the 2009 notice and the appellant’s leave had expired.

Permission to appeal was granted. The Upper Tribunal first determined whether the appeal was valid and whether leave had continued under section 3C of the Immigration Act 1971. It then determined the appellant’s Article 8 claim.

1. The appeal was dismissed on its merits. The First-tier Tribunal had erred in concluding that it lacked jurisdiction. The appellant had a valid, in-time appeal once the refusal notice was re-served with an appeal form.

2. Regulation 5(6) of the Immigration (Notices) Regulations 2003 permits a restricted-rights notice to be served without the usual appeal information and form. Where the recipient claims that the decision breaches Convention rights, regulation 5(7) requires re-service of the decision without that dispensation. Under regulation 5(8), the procedural time limit runs as if the decision were served on the re-service date. The appellant’s March 2010 notice was therefore in time.

3. Section 3C(2)(b) of the Immigration Act 1971 extends leave during any period in which an in-country appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought. That period includes the procedure under regulation 5(6)–(8), including the time between the initial restricted notice and re-service. Otherwise a person could make an appeal in time under the Procedure Rules but be unable to do so before leave expired. The consequence may be lengthy continuing leave, but it follows from the statutory scheme.

4. The appellant did not establish extant family life of sufficient substance with her husband, nor sufficiently strong private-life ties, to make an expectation of return to Jamaica disproportionate under Article 8. No removal decision had been made in any event. The Article 8 appeal was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal held that the First-tier Tribunal had made a material error of law by finding that no valid appeal lay. On remaking the decision, it dismissed the Article 8 appeal.
• First-tier Tribunal: It had concluded that the February 2010 appeal was invalid because the only appealable immigration decision had been notified in February 2009 and the appellant’s leave had expired.