Sultana Kishver v The Secretary of State for the Home Dpeartment

For the purposes of section 10(1)(a) of the Immigration and Asylum Act 1999, limited leave includes leave extended by section 3C of the Immigration Act 1971. A person whose timely valid application has extended leave under section 3C is therefore not an overstayer and cannot lawfully be made subject to removal under section 10 on that basis.

A failure to use a prescribed application form may be treated as valid under the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003. Where the Secretary of State has validly treated the application as valid, it is inappropriate subsequently to reverse that executive decision. A refusal of further leave in these circumstances was not in accordance with the law where the Secretary of State failed also to consider removal.

The appellant, a Pakistani national, entered as a visitor in 2004. Before her leave expired, she made an application for leave to remain using the wrong prescribed form. The Secretary of State later treated that application as invalid, refused further leave on 19 March 2009, and asserted that there was no right of appeal.

An Immigration Judge dismissed the purported appeal. Reconsideration was granted, and the matter came before the Upper Tribunal. The issues were whether the original application was valid so as to give rise to an appeal, and whether the Secretary of State's refusal of further leave was lawful without a contemporaneous consideration of removal.

1. Appeal allowed. The Upper Tribunal held that the appellant had a valid statutory appeal against the decision of 19 March 2009. The Secretary of State had treated the January 2005 application as valid. That was an executive decision which it was inappropriate to reverse during the litigation.

2. The failure to use the prescribed form was capable of being condoned under Regulations 11 and 12 of the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003. Regulation 12 was not confined to cases where the correct form had been used. It covered a failure to use that form, subject to the Secretary of State's notification procedure.

3. The valid application was made during existing leave. Section 3C of the Immigration Act 1971 therefore extended that leave, and the later application was a variation of it. Although the notice wrongly denied a right of appeal and so did not comply with the Immigration (Notices) Regulations 2003, the appellant waived the notice requirement and could proceed with the appeal.

4. Following Mirza v SSHD [2011] EWCA Civ 159, the Secretary of State ought to have considered removal when refusing further leave to a person whose leave had been extended. But section 10(1)(a) of the Immigration and Asylum Act 1999 did not authorise removal here. Leave under section 3C remained limited leave; the appellant was not an overstayer. The contrary construction would defeat the protective purpose of sections 77 and 78 of the Nationality, Immigration and Asylum Act 2002.

5. The Immigration Judge erred by failing to find that the refusal was not in accordance with the law because removal had not also been considered. No direction was made. The Article 8 claim based on prospective removal could not succeed because no removal decision had been made.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal against the Secretary of State's decision of 19 March 2009 and held that it was not in accordance with the law.
• Asylum and Immigration Tribunal: Immigration Judge R A Britton dismissed the purported appeal in a determination sent out on 6 June 2009.
• Reconsideration: an application for reconsideration was granted on 27 July 2009.