Sonalben Samirkumar Patel, R (on the application of) v The Secretary of State for the Home Department

Section 3C(4) of the Immigration Act 1971 prevents a person from making a fresh application for leave while leave is extended under section 3C. An appeal remains pending until it is withdrawn. Although withdrawal takes effect when notice is given to the First-tier Tribunal, an application posted on that same day is treated by paragraph 34G of the Immigration Rules as made on that whole day, rather than at a particular time.

Accordingly, a purportedly simultaneous withdrawal of an appeal and fresh application cannot avoid section 3C(4). The contrary construction would permit successive applications to prolong the original leave indefinitely and defeat the statutory purpose.

The applicant, an Indian national with leave as a Tier 4 student, had appealed against the refusal of a previous application. On 2 July 2013, her representatives sent written notice to the First-tier Tribunal withdrawing that appeal and made a fresh Tier 4 application. The Secretary of State later rejected the fresh application as invalid under section 3C(4) of the Immigration Act 1971.

In this judicial review, the applicant contended that her appeal had been withdrawn simultaneously with the fresh application, so that section 3C(4) did not apply. The central issue was whether an application posted on the day of withdrawal was made while section 3C leave continued.

1. The claim was dismissed. The applicant’s fresh application was prohibited by section 3C(4) of the Immigration Act 1971, because it was made on a day when her leave remained extended under section 3C.

2. Under section 104(1) of the Nationality, Immigration and Asylum Act 2002, an appeal ceases to be pending when withdrawn. Under rule 17 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, withdrawal takes effect when the First-tier Tribunal is notified orally or in writing. The later notice recording withdrawal is not constitutive of withdrawal.

3. Paragraph 34G of the Immigration Rules provides that a postal application is made on its date of posting. It does not specify a time of posting. Construed according to its natural meaning, the rule treats the application as made throughout the relevant day. It was not open to the Tribunal to read a time qualification into the rule: Mahad and others [2009] UKSC 16.

4. Thus, even if the appeal ended at the precise moment written notice reached the First-tier Tribunal, the fresh application was made on 2 July 2013, when the appeal had been pending for part of that day and section 3C leave had operated. A same-day or purportedly contemporaneous application is consequently barred by section 3C(4).

5. This construction accords with JH (Zimbabwe) [2009] EWCA Civ 78: section 3C(4) prevents successive applications from creating an indefinite extension of the original leave. In any event, the applicant produced no evidence that the application and withdrawal were simultaneous. Her Article 8 ground also failed because no Article 8 case had been advanced to the Secretary of State and Article 8 does not protect a right to study.

not stated in the judgment.