BJ v The Secretary of State for the Home Department

A valid in-time application for leave which is refused after the applicant’s existing leave has expired is an immigration decision within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, where the refusal leaves the applicant without leave apart from section 3C protection. It attracts a right of appeal to the First-tier Tribunal.

A failure by the Secretary of State to provide the information required by the Immigration (Notices) Regulations 2003 does not deprive the First-tier Tribunal of jurisdiction where the applicant waives compliance. Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC) establishes that there must be an immigration decision; it does not impose a further requirement for a compliant notice before jurisdiction arises.

The appellant had discretionary leave while her husband held refugee leave. She was named as a dependant in his in-time settlement application. The Secretary of State later rejected her aspect of the application, without granting further leave, and invited her to make a different application.

The First-tier Tribunal issued a notice of no jurisdiction. It considered that the letter was not a compliant notice of decision and, relying on Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC), held that no valid appeal lay. The appellant appealed to the Upper Tribunal.

The central issue was whether the refusal was an immigration decision capable of appeal despite non-compliance with the Immigration (Notices) Regulations 2003.

1. Appeal allowed. The First-tier Tribunal made an error of law in holding that it lacked jurisdiction. Its decision was set aside.

2. The appellant had made a valid application. The Secretary of State’s acknowledgement treated it as such, and there was no material showing that it had been invalid. On a valid application, the Secretary of State could grant or refuse leave. As no leave was granted, the appellant’s application had necessarily been refused.

3. That refusal was an immigration decision under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The appellant had applied while she held leave, but the negative decision was made after that leave expired and left her without leave, apart from the effect of section 3C of the Immigration Act 1971. She therefore had a right of appeal to the First-tier Tribunal.

4. The Secretary of State was obliged under the Immigration (Notices) Regulations 2003 to provide prescribed information, including notice of an appeal right. However, compliance could be waived by an appellant. The appellant had done so.

5. Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC) was distinguishable because no immigration decision existed in that case. If it required a compliant notice as a condition of jurisdiction even where an immigration decision existed, the Tribunal declined to follow it in favour of the established authorities permitting waiver.

6. The Upper Tribunal retained the appeal. In light of the Secretary of State’s concession, it remade the decision by allowing the appeal and directing that leave be granted until 5 November 2017.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s no-jurisdiction decision, and remade the appeal in the appellant’s favour.
• First-tier Tribunal: Held that it had no jurisdiction because the Secretary of State’s letter was not a compliant notice of decision and no valid appeal lay.