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

Section 3 C(4) of the Immigration Act 1971 prohibits a further application to vary leave while statutory leave is extended under section 3 C. An application made in breach is invalid from the outset. It cannot extend leave under section 3 C(2), even where the Secretary of State considers and refuses it on its merits. Section 3 C(4) gives the Secretary of State no power to waive the prohibition. This construction prevents successive applications and ensures that only one application to vary leave is live at a time. No implied 28-day decision period applies to an application made in breach.

The appellant challenged the refusal of his application for further leave to remain as a Tier 1 (Entrepreneur) Migrant. His leave had been extended under section 3 C of the Immigration Act 1971. He made a further application on 22 May 2013 while that extension operated. The Secretary of State considered and refused it on its merits on 18 June 2013. A later application was refused because the appellant had overstayed by more than 28 days under paragraph 245DD(g) of the Immigration Rules.

The Upper Tribunal dismissed the judicial review claim, holding that the 22 May application was invalid and that leave ended on 24 May 2013. The central issue was whether an application prohibited by section 3 C(4) could nevertheless extend leave because the Secretary of State determined it on its merits.

1. Disposition. The Court of Appeal unanimously held that the Upper Tribunal’s determination was correct. The appeal failed.
2. Section 3 C(4). The application made on 22 May 2013 was prohibited because the appellant’s leave was already extended under section 3 C. The prohibition operates by force of statute and is not dependent on a decision by the Secretary of State. Section 3 C(4) contains no discretion or power to waive the prohibition or to treat the application as valid. Allowing the application to trigger further leave under section 3 C(2) would contradict the language and purpose of the statutory scheme, which is to prevent successive applications and maintain one live application at a time.
3. Authorities. Kishver (Limited Leave: Meaning: Pakistan) [2011] UKUT 410; [2012] Imm AR 128 was distinguished. Regulation 12 of the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 supplied a statutory basis for treating an invalid application as valid, whereas section 3 C(4) supplied no equivalent power. Anwar & another v Secretary of State for the Home Department [2010] EWCA Civ 1275 concerned appeal jurisdiction and was materially distinct. The Supreme Court’s decision in R (Iqbal, Mirza and Another) v Secretary of State for the Home Department [2017] 1 WLR 85, that an invalid application does not extend leave under section 3 C, supported the conclusion.
4. 28-day argument. There was no basis for implying a 28-day period within which the Secretary of State had to determine an application made in breach of section 3 C(4). Nothing done after 22 May 2013 altered the expiry of the appellant’s section 3 C leave on 24 May 2013. The later application therefore fell outside the 28-day disregard in paragraph 245DD(g) of the Immigration Rules.

1. Court of Appeal (Civil Division): On 23 November 2018, the court held that the Upper Tribunal was correct and dismissed the appeal: [2018] EWCA Civ 2612.
2. Upper Tribunal (Immigration and Asylum Chamber): The decision promulgated on 3 March 2016 dismissed the judicial review challenge to the Secretary of State’s refusal decision.