R v Secretary of State for the Home Department

An application made before the expiry of limited leave engages section 3C of the Immigration Act 1971 only if it is validly made. An application submitted without a fee which regulations require upon submission is invalid from the outset and cannot extend leave.

A later failure to provide biometric information differs. A power to treat the application as invalid operates prospectively from the Secretary of State’s decision unless the legislation clearly gives it retrospective effect. Procedural fairness does not impose a universal duty to notify an applicant of a fee deficiency before existing leave expires, particularly where the authority responds with reasonable promptness.

Three migrants applied to vary their limited leave before it expired. Two applications were defective because the required fee was not paid in full or could not be collected. The third applicant submitted a valid application but later failed to provide requested biometric information.

The Court of Appeal, in [2015] EWCA Civ 838, held that an application which was not validly made did not engage section 3C of the Immigration Act 1971. The applicants appealed. The central questions were whether a procedurally invalid application could extend leave under section 3C, whether biometric non-compliance retrospectively invalidated an application, and whether fairness required prompt notice allowing a fee defect to be corrected before leave expired.

1. The three appeals were dismissed unanimously. Lord Carnwath delivered the judgment, with which Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge agreed.

2. Section 3C of the Immigration Act 1971 had to be construed according to the natural meaning of its words in their statutory context. Regulation 37 of the Immigration and Nationality (Fees) Regulations 2011 unambiguously provided that an application which was not accompanied by the specified fee was not validly made. In ordinary language, such an application had no substantive effect and therefore could not extend leave under section 3C.

   The later legislation conferred powers upon the Secretary of State to prescribe procedural requirements and the consequences of non-compliance. Giving effect to regulations made under those powers did not permit the executive to alter primary legislation. It determined the scope of powers conferred by Parliament within the same legislative framework.

3. The unfairness argument advanced by the fee-paying applicants also failed. The observations in Basnet did not establish a universal rule requiring the Secretary of State to prioritise an application where a fee deficiency might become fatal. The relevant fee increase had been publicised, the correct amount appeared on the application form, and the Secretary of State had responded with reasonable promptness. The applicants’ difficulty resulted from submitting their applications close to the expiry of leave.

4. Failure to provide biometric information was materially different. The fee obligation arose when the application was submitted, whereas the biometric obligation arose only after a later notice. Neither section 7 of the UK Borders Act 2007 nor regulation 23(2)(b) of the Immigration (Biometric Registration) Regulations 2008 gave retrospective effect to a later decision to treat an application as invalid. The natural reading was that invalidity took effect when the Secretary of State made that decision.

   This construction did not assist the biometric applicant. Her section 3C leave ended no later than the invalidity decision on 26 March 2012, while her replacement application was not made until 3 April 2012.

5. The Supreme Court upheld the orders of the Court of Appeal. It also endorsed the Court of Appeal’s concern about the overwhelming need to rationalise and simplify the legislative scheme.

1. United Kingdom Supreme Court: The three appeals were dismissed unanimously and the orders of the Court of Appeal were upheld: [2016] UKSC 63.

2. Court of Appeal: The court held that section 3C of the Immigration Act 1971 did not extend leave where an application had not been validly made. It rejected the argument that notification of invalidity constituted a decision on the application and also rejected the fee-related unfairness argument: [2015] EWCA Civ 838.

3. Upper Tribunal and High Court: Permission or relief had initially been refused in the applicants’ respective proceedings before permission was granted by the Court of Appeal.