Chaparadza, R (On the Application Of) v Secretary of State for the Home Department

A decision to vary leave to remain has no legal effect until valid written notice is given to the person affected. While an application remains undecided, a later asylum claim may vary the existing application under section 3C of the Immigration Act 1971, including by adding a further basis for leave. It does not necessarily replace the original basis.

Where the varied application has not been validly determined, section 3C leave continues. Detention founded on the mistaken belief that the person has no continuing leave is unlawful. Damages for unlawful detention must be assessed globally and sensitively to the harm suffered, rather than by applying a rigid daily rate.

The claimant, a Zimbabwean national, applied in July 2011 to vary his student leave so that he could resit an examination. The application was refused in October 2011, but the decision was sent to his college rather than to him. He later claimed asylum in June 2013. His asylum claim was refused, his appeals became exhausted, and he was detained from 11 April to 20 June 2014.

He sought judicial review concerning the failure to notify the 2011 decision, the refusal to treat further asylum submissions as a fresh claim, and the lawfulness of his detention. The central issues were whether the 2011 decision had legal effect without valid notice, whether the asylum claim varied or supplanted the earlier application, and whether detention was lawful.

1. Notice and legal effect. Under section 4 of the Immigration Act 1971 and regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006, a variation decision requires effective written notice. Until then, the decision is legally without effect. The 2011 decision therefore did not terminate the claimant’s section 3C leave.
2. Variation of the application. Applying JH (Zimbabwe) [2009] EWCA Civ 78, section 3C permits one application to be varied before decision. A later application may concern a different purpose. On the facts, the asylum claim varied the 2011 application rather than withdrawing it or supplanting its original purpose. The varied application therefore comprised both bases for leave.
3. Invalid subsequent notice. The 2013 asylum decision referred to the earlier refusal but did not give the reasons, appeal information or other matters required by regulation 5 of the Immigration (Notices) Regulations 2003. Following R (E (Russia) v Home Secretary [2012] EWCA Civ 357, the notice was invalid. The 2011 application consequently remained undetermined.
4. Detention. The claimant retained section 3C leave when detained. The Secretary of State’s mistaken belief that a valid decision had been made did not provide a statutory basis for detention. Applying the public-law principles identified in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, the detention was unlawful throughout.
5. Damages and disposition. The claim under Grounds 1 and 3 was allowed. Applying the fact-sensitive approach in Thompson v Commissioner of Police and MK (Algeria) v Secretary of State for the Home Department, damages were assessed globally at £10,500. Ground 2 was academic.

First-instance judicial review decision. No appellate history is stated in the judgment.