Ashfaq Ali, R (on the application of) v The Secretary of State for the Home Department

Leave extended under section 3C of the Immigration Act 1971 remains the leave originally granted; it is not a distinct form of leave conferred independently by Parliament. A removal decision under section 10 of the Immigration and Asylum Act 1999 therefore invalidates that extended leave under section 10(8).

Section 47 of the Immigration, Asylum and Nationality Act 2006 has a different function. It does not displace a section 10 removal decision based on alleged deception. Where section 10 applies and the refusal of further leave follows the removal decision, there is no in-country appeal against that refusal. An out-of-country appeal is the appropriate statutory remedy.

The applicant, a Pakistani national, applied for further leave to remain before his student leave expired. He relied on an ETS TOEIC certificate. ETS subsequently stated that his score was invalid because of evidence of fraud.

On 5 August 2014 the Secretary of State served a section 10 removal decision and a refusal of the application for further leave. The applicant sought judicial review, contending that the refusal preceded removal, that section 3C leave could not be invalidated, and that the decision was instead a pre-removal decision under section 47 carrying an in-country appeal.

Permission was refused on the papers by Upper Tribunal Judge Kekić. On the renewed application, the central issue was whether the applicant had an arguable in-country right of appeal.

1. The renewed application for permission was refused. The Secretary of State's removal decision preceded the refusal of further leave. The refusal notice expressly identified the section 10 decision as prior. Immigration decisions take effect on service, and there was no evidence that an earlier refusal decision had been served. The applicant therefore had no pending in-country appeal capable of engaging section 78 of the Nationality, Immigration and Asylum Act 2002.
2. Section 3C does not create a new species of leave. Following QI (Pakistan) [2011] EWCA Civ 614, it extends leave already granted while a variation application remains undecided. Accordingly, leave extended by section 3C is leave previously given to the person for section 10(8) purposes and is invalidated when a section 10 removal decision is notified.
3. The applicant's variation application was no longer extant after the relevant decisions. Section 3C(2)(a) could therefore not preserve the leave. The contrary construction would create unjustified anomalies between persons whose original leave had and had not expired when section 10 action was taken.
4. Section 47 of the Immigration, Asylum and Nationality Act 2006 concerns a refusal to vary leave accompanied by a removal decision to deal with potential overstaying under the one-stop principle. It has a distinct sphere from section 10. Here, the alleged use of deception brought the case within section 10(1), so the removal decision was not a section 47 pre-removal decision.
5. As the legislation conferred no in-country appeal, an out-of-country appeal was an appropriate means to challenge the section 10 decision, consistently with R (Lim) v Secretary of State for the Home Department [2007] EWCA Civ 773.

• Upper Tribunal (Immigration and Asylum Chamber): On the renewed application, Upper Tribunal Judge Peter Lane refused permission to judicially review the removal decision.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kekić had refused permission on the papers on 12 August 2014.