Kalum Krishantha Kanda Addara Badalge, R (on the application of) v The Secretary of State for the Home Department

A decision on an application to vary leave under the Immigration Act 1971 has no legal effect before written notice is given. Where a removal decision under section 10 is notified first, section 10(8) invalidates the applicant’s existing leave, including leave extended by section 3C.

A later refusal to vary leave is therefore not a refusal producing an in-country appeal under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The statutory appeal against the removal decision remains exercisable only from outside the United Kingdom.

The applicant, a Sri Lankan national, made an in-time application for further leave as a Tier 4 student. His leave was consequently extended under section 3C of the Immigration Act 1971.

On 15 July 2014 the Secretary of State notified a removal decision under section 10 of the Immigration and Asylum Act 1999, relying on alleged deception concerning an ETS certificate. She also refused the outstanding application under paragraph 322(1A) of the Immigration Rules. The applicant contended that the refusal generated an in-country right of appeal.

The central issue was whether the applicant’s extended leave and appeal right vested before notification of the removal decision invalidated that leave.

1. The judicial-review claim was dismissed. The applicant had no in-country right of appeal against the refusal of his application for further leave.

2. SSHD v Ahmadi [2013] EWCA Civ 512 established that, for these purposes, the statutory power to vary leave is exercised by giving written notice. Notice is not a later procedural step after a legally effective decision has already been made. The decision on the application to vary leave therefore did not have legal effect before notice was given.

3. The removal decision was notified before the refusal decision. By section 10(8) of the Immigration and Asylum Act 1999, that removal decision invalidated the applicant’s existing leave, including leave extended by section 3C. There was then no leave capable of variation.

4. Accordingly, the later refusal was not an immigration decision within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The statutory right of appeal attached to the section 10 removal decision and was exercisable only after the applicant had left the United Kingdom.

5. The Tribunal followed Shahbaz Ali v Secretary of State for the Home Department [2014] EWHC 3967 (Admin). It rejected the submission that paragraph 322(1A) of the Immigration Rules required the Secretary of State to decide the variation application before taking the removal decision.

not stated in the judgment.