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

Where leave is extended under section 3C of the Immigration Act 1971, an application for further leave made during that period is an application to vary existing leave. Section 3C(4) therefore prohibits a further application while the earlier application or appeal remains unresolved.

The prohibition operates by reference to the date on which the further application is submitted. An application prohibited when made cannot later be revived by the conclusion of an appeal. Leave may continue under section 3C(2)(a) while the Secretary of State implements a tribunal direction, because the underlying application has not been finally decided. The Secretary of State has no discretion to treat an application barred by section 3C(4) as valid.

The claimant sought judicial review of the Secretary of State’s refusal to accept as valid his application for Tier 1 (post-study work) leave. He had made an earlier application, pursued an appeal, and submitted the later application while his leave was extended under section 3C of the Immigration Act 1971.

He argued that the later application was an application for fresh leave rather than variation of existing leave, that section 3C ceased to operate when his earlier appeal was dismissed, and that the Secretary of State should have exercised a residual discretion to accept the application. The central issues were the construction and operation of section 3C and whether refusal to accept the application was unfair, irrational or disproportionate.

1. The application for judicial review was dismissed.
2. Once a person has been granted leave to remain, an application made during the currency of that leave is an application to vary the existing leave, even if described as an application for fresh leave. Section 3C is intended to prevent successive applications and to ensure that only one application to vary leave is outstanding at any time.
3. The words “may not make an application” in section 3C(4) refer to the date on which the application is submitted, not the date on which it is considered. An application made while leave is extended under section 3C is prohibited at that point and cannot subsequently be revived or treated as made on a later date.
4. Where an appeal succeeds and the tribunal directs the Secretary of State to act, section 3C(2)(a) continues the applicant’s leave while the underlying application awaits final implementation. It would be contrary to the purpose of section 3C for a successful appellant to become an overstayer before the Secretary of State complied with the tribunal’s direction.
5. The statutory bar prevented the Secretary of State from treating the later application as valid. Even if a residual discretion existed, its exercise could not be characterised as unreasonable or inflexible. The authorities relied on by the claimant concerned materially different circumstances, including an application that lacked a fee rather than one prohibited by section 3C(4).

The claimant’s sympathy-inducing circumstances could not overcome the statutory prohibition. The application had been submitted shortly before closure of the post-study work scheme and was invalid when made.

The judgment describes the judicial review claim as having been lodged on 4 December 2012. Permission was granted on the papers on 11 February 2013 by His Honour Judge Stephen Davies, sitting as a High Court judge. The Administrative Court then dismissed the claim.