Chowdhury, R (on the application of) v Secretary of State for the Home Department

Section 3C of the Immigration Act 1971 permits an applicant to vary an existing application for variation of leave, but does not permit a fresh application while leave is extended. Whether a document is a variation depends on its substance, rather than its form or description. A variation must be communicated to the decision-maker or tribunal then able to give effect to it. In a points-based appeal, statutory restrictions may prevent the tribunal from considering new evidence supporting the variation. Once the underlying application has been finally determined, there is no effective application left to vary.

The claimant, an international student, had applied to vary his leave to remain under the Tier 1 (Post Study Work) category. While his appeal against refusal of that application was pending, he submitted a further document relying on a newly obtained degree. The Secretary of State treated it as a fresh application prohibited by section 3C(4) of the Immigration Act 1971 and declared it void.

Permission for judicial review had initially been refused as the claim was out of time and totally without merit. On renewal, the claimant argued that the document varied his original application, relying on JH [2009] EWCA Civ 78. The central issues were whether the document was a variation, whether it was communicated to the body able to act on it, whether the Upper Tribunal could consider the new evidence, and whether any relief remained possible after the appeal had been finally determined.

1. Time was extended and the amended grounds were within the permission granted.

2. The document submitted on 5 April 2012 was, in substance, an attempt to replace the qualification relied on in the original application. It therefore had the characteristics of a variation of the existing application, rather than a fresh application to vary leave. Section 3C(5) of the Immigration Act 1971 permits variation of the application while leave remains extended.

3. A variation must be made known to the decision-maker directly affected by it. After the Secretary of State’s decision, the Upper Tribunal was the body capable of giving effect to a variation during the pending appeal. The claimant had sent the document to the UKBA and had not informed the Upper Tribunal. It therefore did not operate as a variation.

4. Even if the document had been a valid variation, the Upper Tribunal could not have considered the new qualification. The appeal concerned a points-based immigration decision and the restrictions in sections 85 and 85A of the Nationality, Immigration and Asylum Act 2002 excluded new evidence which had not been submitted with the application.

5. The Upper Tribunal retained case-management jurisdiction until its decision was promulgated, so an application to amend could theoretically have been made after the hearing had closed. That did not assist the claimant. Once the appeal had been finally determined and the decision had become binding, there was no remaining application capable of variation. The reasoning in JH [2009] EWCA Civ 78 supported that conclusion.

6. The waiver, estoppel, unfairness and inconsistency grounds had no basis. The renewed application for permission was dismissed, and the order requiring the claimant to pay £320 in costs was reinstated, payable within 21 days of service of the order.

First-instance judicial review proceedings. The judgment itself records that permission had previously been refused by Judge Vosper QC on 19 June 2013 and was renewed before this court.