Firdaws, R (On the Application Of) v First Tier Tribunal (IAC) & Anor

Under the former appeal regime, a refusal to vary leave was an immigration decision only if the refusal left the applicant without leave. It did not do so where leave had already expired or been curtailed. The transitional provisions had to be read according to their wording. The fourth commencement order therefore appeared literally to confer a later appeal right on a person previously excluded. Even so, a court reviewing refusal of permission may withhold relief where that construction produces an absurd result contrary to the evident policy and the underlying appeal has no merit or is substantially out of time. The court cannot rewrite the statutory instrument.

The appellant’s leave to remain had been curtailed before he made a human rights application, which was refused on 30 March 2015 without a right of appeal. The First-tier Tribunal held that there was no valid, timely appeal and lacked jurisdiction. The Upper Tribunal, first through UTJ King and then on review before UTJ Macleman in JR/3293/2017, refused permission for judicial review. The appeal to the Court of Appeal concerned whether the substituted appeal right under section 82 of the Nationality, Immigration and Asylum Act 2002, as introduced by section 15 of the Immigration Act 2014, applied under the transitional and saving provisions. The central issue was whether the appellant had, or later acquired, a right of appeal.

1. Appeal dismissed. Lord Justice Irwin gave the judgment and Lady Justice Simler agreed.
2. At the date of the human rights application and its refusal, the appellant had no leave to remain. Under the former section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, a refusal to vary leave was an immigration decision only where the result of the refusal was that the person had no leave. Where leave had already expired or been curtailed, the refusal did not itself terminate or fail to restore leave. The principle was supported by SA (Section 82(2)(d): Interpretation and Effect) Pakistan [2007] UKAIT 00083.
3. Under the Immigration Act 2014 (Commencement No 3 Transitional and Saving Provisions) Order 2014, Article 11 required a qualifying Tier 4 application made on or after 20 October 2014 before the later transitional conditions could operate. The appellant’s Tier 4 application preceded that date. Article 11(2)’s reference to an application of a kind mentioned in Article 11(1) therefore included the date requirement. The saved appeal provisions continued to apply during that period.
4. On the literal wording of the Immigration Act 2014 (Commencement No 4, Transitional and Saving Provisions and Amendment) Order 2015, the omission of the earlier Article 11 tests was not confined to a particular category. The saved provisions applied to a pre-6 April 2015 decision only where an appeal could have been brought or was pending immediately before that date. Since the appellant could not then have appealed under the saved provisions, the substituted provisions appeared to apply.
5. That literal construction produced the absurd result that delay could create an appeal right previously unavailable. The court could not rewrite the statutory instrument, but judicial-review permission and relief were discretionary. No favourable exercise of discretion was possible: the underlying case had no merit, the appeal was substantially out of time, and the delay arose from late and erroneous advice. The appeal was accordingly dismissed.
6. Irwin LJ deprecated the extreme complexity and obscurity of the drafting, which concealed meaning and generated a perverse result.

• Court of Appeal (Civil Division): Appeal dismissed on 25 July 2019.
• Upper Tribunal (Immigration and Asylum Chamber): UTJ Macleman refused permission on review, holding that the proposed challenge to the First-tier Tribunal decision had no arguable prospect.
• Upper Tribunal (Immigration and Asylum Chamber): UTJ King had earlier refused permission for judicial review on 24 July 2017.
• First-tier Tribunal (Immigration and Asylum Chamber): On 14 December 2016, the tribunal held that there was no valid appeal, that the notice was substantially out of time, and that it lacked jurisdiction.