Jyotika Priyesh Bhudia, R (on the application of) v The Secretary of State for the Home Department

Under paragraph 284(iv) of the Immigration Rules, the 28-day period during which overstaying is to be disregarded is measured by the date of the extension application. It begins on the day after lawful leave expires. It does not depend on when the Secretary of State determines the application.

The Secretary of State cannot make a document requirement in an application form an inflexible condition of leave where it is not contained in legislation or a rule subject to the parliamentary scrutiny required by Immigration Act 1971. A previously accepted English-language certificate could satisfy paragraph 284(ix)(a) on the particular facts. Withdrawal of an impugned decision does not automatically remove the Tribunal's jurisdiction to decide an important public-law issue.

The applicant, an Indian national with leave as the spouse of a person settled in the United Kingdom, applied for further leave 15 days after her leave expired. The Secretary of State refused the application because it was said to be out of time, unsupported by six specified items of cohabitation correspondence, and unsupported by an English-language certificate.

Permission for judicial review was granted on 13 February 2015. At the end of the substantive hearing, the Secretary of State sought to withdraw the refusal and contended that the Tribunal could no longer give judgment. The Tribunal determined the proper construction of paragraph 284(iv), the legality of the form-based document requirement, the effect of a previously accepted English-language certificate, and its jurisdiction after withdrawal.

1. The application for judicial review was granted. The Tribunal quashed the refusal decision of 2 July 2014 and required the Secretary of State to reconsider the application in accordance with the judgment.
2. Immigration Rules are construed sensibly and objectively according to their natural and ordinary meaning. Paragraph 284(iv) required the applicant to make her extension application within 28 days beginning on the day after her lawful leave ended. It did not make compliance depend on the uncertain date on which the Secretary of State happened to decide the application. The contrary construction was unsupported by the wording, produced uncertainty, and could operate capriciously and unfairly.
3. The six-item correspondence stipulation in Form FLR(M) was unlawful. It was neither legislation nor an Immigration Rule, yet it was treated as a rigid condition of grant. The Secretary of State could not augment or modify the Rules through an application form without the parliamentary scrutiny required by section 3(2) of the Immigration Act 1971. Alternatively, if the stipulation were guidance, applying it as an inflexible condition unlawfully fettered discretion.
4. On the particular facts, the applicant satisfied paragraph 284(ix)(a). Her English-language certificate had been provided and accepted when she obtained her earlier spousal leave. The Rules imposed no requirement that the qualification be of a particular age, and Appendix FM did not require duplicate proof where it had been supplied for a previous partner application.
5. The Secretary of State's late withdrawal did not extinguish the Tribunal's jurisdiction. In public-law proceedings the Tribunal retained a discretion to decide an issue that had become academic between the parties. The issues were sufficiently important to justify judgment, and Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 required the Tribunal's consent before withdrawal took effect.

Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted by His Honour Judge Raynor QC on 13 February 2015. The Tribunal granted the substantive application, quashed the Secretary of State's decision of 2 July 2014, and directed reconsideration.