Mehmood & Anor, R (on the application of) v Secretary of State for the Home Department

Leave automatically extended pending determination of a timely variation application under section 3C of the Immigration Act 1971 remains the original leave. A notification of a removal decision under section 10(8) of the Immigration and Asylum Act 1999 therefore invalidates that leave. It extinguishes the basis for an in-country appeal against a variation refusal, leaving the out-of-country appeal against removal.

A decision to vary leave has no legal effect until written notice is given. Judicial review will ordinarily not displace the statutory out-of-country appeal unless special or exceptional factors exist. Ordinary factual disputes, evidential disputes, procedural-fairness complaints and the inconvenience of removal will rarely meet that high threshold.

The appellants, Pakistani Tier 4 students, each applied in time to vary his limited leave. The Secretary of State then made section 10 removal decisions, alleging respectively a breach of a work condition and deception in an English-language test. The decisions invalidated their leave and were followed by detention in one case and a refusal to vary leave in each case.

Steven Kovats QC refused permission for judicial review in Mr Mehmood’s case: [2014] EWHC 1608 (Admin). Helen Mountfield QC dismissed Mr Ali’s judicial-review claim: [2014] EWHC 3967 (Admin). Both appellants appealed.

The central issues were whether section 10(8) invalidated leave extended by section 3C, whether service order gave Mr Ali an in-country appeal, and whether judicial review should be available despite the statutory out-of-country appeal.

1. The appeals were dismissed unanimously. Beatson LJ, with whom Roth J and Sullivan LJ agreed, held that section 3C of the Immigration Act 1971 extends the same leave previously granted by the Secretary of State. It does not create a new species of leave. Accordingly, notification of a removal decision under section 10(8) of the Immigration and Asylum Act 1999 invalidates leave extended by section 3C. The appellants therefore had only an out-of-country appeal against the removal decisions, rather than an in-country appeal against a refusal to vary leave.

2. The phrase “previously given” in section 10(8) did not exclude section 3C leave. Such a reading would produce arbitrary consequences according to when deceit or breach was detected. Section 47 of the Immigration and Nationality Act 2006 addressed a different category of removal and did not assist the appellants.

3. In Mr Ali’s case, the legally effective sequence depended on service, not internal drafting or the date on the refusal letter. By section 4(1) of the Immigration Act 1971, the power to vary leave is exercised by written notice to the affected person. The removal notice was served first and invalidated the leave. The purported subsequent refusal to vary was consequently a nullity and could not confer an in-country appeal.

4. The statutory out-of-country appeal was an adequate alternative remedy absent special or exceptional factors. Disputed facts, expert-evidence disputes and ordinary procedural-fairness complaints are ordinarily for the appellate process. An unsupported inference that the Secretary of State acted to stifle an in-country appeal could not establish abuse merely because that was the statutory effect of section 10(8).

5. The evidence underpinning the alleged deception was not absent. The appellants could challenge it in the statutory appeal. If they succeeded there, the Secretary of State would have to give proper effect to the tribunal’s findings; a later judicial-review challenge might be available if a refusal to vary were not revisited. Disruption to study, inconvenience and expense were inherent consequences of the statutory scheme and were not exceptional. Procedural fairness required communication of the gist of the material relied upon, but that issue too could be raised on appeal.

• Court of Appeal (Civil Division) Dismissed both appeals: [2015] EWCA Civ 744.

• High Court, Administrative Court Steven Kovats QC refused Mr Mehmood’s renewed application for permission to apply for judicial review: [2014] EWHC 1608 (Admin).

• High Court, Administrative Court Helen Mountfield QC dismissed Mr Ali’s judicial-review claim: [2014] EWHC 3967 (Admin).