Thomas v Secretary of State for the Home Department

Permission to appeal was granted on two arguable issues. First, authority including Edgehill [2014] EWCA Civ 402 and Singh [2015] EWCA Civ 74 made it arguable that amended Immigration Rules could not determine a pending application where the amendment might affect the period of leave. Secondly, whether a no-recourse-to-public-funds condition attached to discretionary leave outside the Rules was a determinative criterion requiring Parliamentary scrutiny under Alvi [2012] UKSC 33 required consideration. The court expressed a provisional difficulty with that argument but did not decide either issue on the merits.

The applicant had entered the United Kingdom in 1989, overstayed, and later applied for indefinite leave to remain based on long residence. The Secretary of State refused indefinite leave but granted 30 months’ limited leave outside the Immigration Rules, subject to a no-recourse-to-public-funds condition.

The First-tier Tribunal allowed the applicant’s Article 8 appeal. The Upper Tribunal refused permission to apply for judicial review, holding that the Secretary of State could limit the leave and impose the condition. The applicant sought permission to appeal on the application of amended Rules to his pending application and on the legality of the public-funds condition.

Permission granted on both grounds. Lord Justice Beatson considered that the issues should be determined by a three-judge court. The Court of Appeal did not determine the substantive appeal.

1. Amended Immigration Rules. The applicant relied on Edgehill [2014] EWCA Civ 402 and Singh [2015] EWCA Civ 74 for the proposition that provisions introduced after an application was made could not govern that pending application. Those decisions, together with Haleemudeen, concerned an increase in the qualifying period from 14 to 20 years. The applicant identified a possible material consequence: the period of limited leave might have been three years rather than 30 months. Although the court disregarded alleged downstream consequences, permission was appropriate in view of those authorities.
2. No recourse to public funds. The key issue under Alvi [2012] UKSC 33 was whether the document or policy set out criteria which were or might be determinative of an application for leave to enter or remain. The court found it difficult to characterise a no-recourse-to-public-funds requirement, in the abstract, as such a criterion. The authorities showed that the distinction between rules requiring Parliamentary scrutiny and other policies was not straightforward. The court referred to the summary in R (Global Vision College) [2014] EWCA Civ 659. Fakih [2014] UKUT 513 IAC had considered the issue after full argument and adopted a different approach. That divergence justified permission.
3. Directions. The appeal was directed to a three-judge court, including a judge with significant immigration-law experience. A half-day estimate was considered sufficient.

• Court of Appeal (Civil Division) — permission to appeal granted on both grounds and directions made for a three-judge hearing: [2015] EWCA Civ 856.
• Upper Tribunal (Immigration and Asylum Chamber) — refused permission to apply for judicial review and held that the Secretary of State could grant 30 months’ leave subject to a no-recourse-to-public-funds condition.
• First-tier Tribunal — dismissed the long-residence ground but allowed the appeal on Article 8 grounds in a determination promulgated on 20 December 2012.