Iqbal & Ors, R (on the application of) v The Secretary of State for the Home Department

An application for variation of leave engages section 3C of the Immigration Act 1971 only if it is validly made under the applicable formal and fee requirements. An invalid application does not trigger the automatic continuation of leave, even where it was lodged before the previous leave expired.

A notice rejecting an application as invalid is not a decision on an application for variation. It states that no proper application has been received. Regulations governing notification may determine when a decision is made, but cannot enlarge what counts as a decision under section 3C. Absent unreasonable delay, different practical opportunities available to postal and in-person applicants do not of themselves make rejection for invalidity procedurally unfair.

Three interrelated appeals concerned whether invalid, timeous applications to vary leave automatically extended the appellants’ leave under section 3C of the Immigration Act 1971.

Mr Iqbal’s student application was returned because it lacked the increased fee. Mr Mirza’s application was invalid because the required fee could not be collected. Ms Ehsan’s application became invalid when she failed to provide requested biometric information. Each made a later application after leave had expired and contended that the first application preserved lawful status.

In Mr Iqbal’s case, the Upper Tribunal refused renewed judicial-review permission in proceedings numbered JR/190/2013. The Administrative Court also refused relief in the Mirza and Ehsan matters. The central issue was whether an invalid application was nevertheless an application for the purposes of section 3C.

Disposition

Elias LJ, with whom Rafferty and Beatson LJJ agreed, dismissed all three appeals.

1. The phrase application for variation in section 3C of the Immigration Act 1971 means an application validly made in accordance with requirements made under statutory powers to prescribe form, fees and the consequences of non-compliance. Parliament contemplated such rules when section 3C was enacted. It was therefore legitimate to construe section 3C by reference to a proper application as so defined. An application invalid for non-payment of the required fee, or for non-compliance with biometric requirements, could not extend leave automatically.

2. The Secretary of State’s alternative argument failed. A decision for section 3C purposes must determine the substantive application to vary leave. A notice that an application is invalid does not do so. It communicates that no proper application has been received and cannot be considered. The applicant may make a fresh, valid application; that possibility confirms that there has been no determination of the original application. The notice regulations determine when a qualifying decision is made, not what constitutes one.

3. The rejection of Mr Iqbal’s application was not procedurally unfair. The fact that an in-person applicant could correct a defect immediately, whereas a postal applicant might receive notice only after leave expired, could produce harsh and arbitrary outcomes. But, in the absence of unreasonable delay, fairness did not require the Secretary of State to operate a system giving priority to applications defective for non-payment of fees. The later ten-day remedial provisions did not operate retrospectively.

4. Each first application was invalid. Consequently, section 3C never extended the appellants’ leave, and the later applications fell to be considered on that basis. The appeals of Mr Mirza and Ms Ehsan therefore also failed.

In a postscript, the court observed that the complexity and piecemeal alteration of immigration rules created serious rule-of-law concerns and called for rationalisation and simplification.

• Court of Appeal (Civil Division). Dismissed the three appeals and upheld the conclusion that no valid pre-expiry application had engaged section 3C.

• Upper Tribunal (Immigration and Asylum Chamber). In Mr Iqbal’s case, Judges Gill and Perkins refused renewed permission for judicial review: JR/190/2013.

• Administrative Court. Mr Justice Phillips refused judicial-review relief in Mr Mirza’s case. Judge Gill, sitting as a Deputy High Court Judge, refused relief in Ms Ehsan’s case.

• First-tier Tribunal. In Mr Iqbal’s case, it held that there was no statutory right of appeal.