Michael Chimpope Singini v The Secretary of State for the Home Department

An application for leave made before 3 March 2010 but undecided on that date had to be determined under the Immigration Rules in force on 2 March 2010, pursuant to the transitional provision in Statement of Changes in Immigration Rules HC 367. Later amendments could not affect it.

Further, paragraph 319C(i) of the Immigration Rules is a freestanding provision following paragraph 319C(h). It cannot be rewritten as an additional exception to paragraph 319C(h). A former student could therefore switch to become a dependant only within the express Tier 5 creative-and-sporting exception in paragraph 319C(h)(iii), not merely because the relevant migrant was a Tier 4 student.

The appellant, a Malawian national, applied on 9 February 2010 to vary leave previously granted as a student. The Secretary of State refused the application on 2 April 2010, holding that paragraph 319C of the Immigration Rules did not permit him to switch to leave as the dependant of a Points Based System migrant. The First-tier Tribunal dismissed his appeal and rejected his claim under Article 8 of the Convention.

On appeal, the Upper Tribunal considered whether the transitional provision in Statement of Changes in Immigration Rules HC 367 allowed the later amendment inserting paragraph 319C(i) to assist the appellant; whether that subparagraph altered the switching requirements; and whether an error about the location of the appellant's child rendered the Article 8 decision unlawful.

1. Appeal dismissed. The transitional provision in Statement of Changes in Immigration Rules HC 367 required an application made before 3 March 2010 and undecided by that date to be determined under the Rules in force on 2 March 2010. The appellant's application fell within that provision. It was common ground that he could not meet the earlier Rules, which was fatal to his appeal.
2. In any event, paragraph 319C(i), inserted from 3 March 2010, was grammatically, syntactically and logically a freestanding subparagraph following paragraph 319C(h). Construing it as paragraph 319C(h)(iv) would require distortion and radical rewriting, rather than interpretation. Applying the ordinary and natural meaning approach stated in Ahmed Mahad and Others v Entry Clearance Officers [2009] UKSC 16, the Tribunal rejected that construction.
3. Accordingly, a person last granted leave as a student could not switch to leave as the dependant of a student. The only relevant route within paragraph 319C(h)(iii) was where the relevant migrant had, or was being granted, Tier 5 creative-and-sporting leave under paragraph 245ZQ(b)(ii).
4. The First-tier Tribunal's misunderstanding of where the appellant's child was living was immaterial. The appellant would be reunited with his child and other family members in Malawi, and any temporary separation from his wife while she completed her studies was modest and proportionate to the legitimate aim of firm but fair immigration control. Its Article 8 conclusion therefore remained open on the evidence.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and held that the Immigration Judge's decision involved no material error of law.
• First-tier Tribunal: dismissed the appeal against the Secretary of State's refusal under the Immigration Rules and Article 8 of the Convention.