Md Mamunur Rashid, R (on the application of) v The Secretary of State for the Home Department

Leave extended by section 3C of the Immigration Act 1971 prevents a further application for variation. The one original application may be varied more than once, but only before the Secretary of State has decided it. After that decision there is nothing left to vary.

An appeal remains pending, for section 3C purposes, until the last day for an in-time application for permission to appeal. The words “could be made” do not confer on the Secretary of State a discretion to assess the merits of a possible further appeal or to treat a later application as a variation. A tribunal which has finally dismissed an appeal is functus officio and cannot entertain an amendment to its grounds.

The applicant sought judicial review of the Secretary of State’s refusal to consider his later Tier 4 student application. The refusal stated that he could not make a fresh application while his leave was extended under section 3C of the Immigration Act 1971.

His earlier application had been refused and his statutory appeal had been dismissed by the Upper Tribunal. Before the deadline for seeking permission to appeal to the Court of Appeal expired, he submitted the later application to the Secretary of State. He contended that it was a valid variation of the earlier application, or that his section 3C leave had already ended. He also advanced fairness, Article 8 and procedural arguments.

1. Claim dismissed. Time was extended for the judicial-review claim because the delay was short and satisfactorily explained.

2. Applying JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, section 3C permits variation of the single original application, including by material submitted in a different form or for a different purpose, only before the Secretary of State has decided that application. There is no numerical limit on timely variations. Once a decision has been made, however, there is nothing left to vary. The applicant’s 8 August 2013 application could therefore not vary his application of 14 November 2012, which had already been decided.

3. Section 3C(2) incorporates the meaning of a pending appeal in section 104 of the Nationality, Immigration and Asylum Act 2002. An appeal was finally determined only on 14 August 2013, the final date for an in-time application for permission to appeal to the Court of Appeal. The applicant consequently still had section 3C leave when he made the later application, and section 3C(4) barred it.

4. The statutory words “could be made” did not give the Secretary of State a discretion to predict whether a possible Court of Appeal appeal would satisfy the second-appeal criteria. The proposed construction was impracticable and illogical. The fairness challenge accordingly failed.

5. A post-decision document might, while an appeal remains pending, be capable of amendment to appeal grounds if the relevant tribunal permits it. It could not assist this applicant. His document was not an application for permission to appeal and did not comply with rule 44(6) or (7) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Moreover, after dismissing the statutory appeal the Upper Tribunal was functus officio.

6. The Article 8 ground, based only on the applicant being a genuine student who had progressed academically, was untenable. Permission to add further grounds was refused where necessary.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s decision of 20 September 2013 dismissing the applicant’s later leave application. The claim was dismissed.
• Earlier statutory appeal: The First-tier Tribunal dismissed the applicant’s appeal against the refusal of his earlier Tier 2 application on 3 May 2013. The Upper Tribunal dismissed his appeal on 29 July 2013. No in-time application for permission to appeal to the Court of Appeal was made.