Palla v The Secretary of State for the Home Department

Section 3C of the Immigration Act 1971 extends leave only where the applicant already has limited leave capable of extension. If that underlying leave has expired, a later application and an administrative period allowed to find a new sponsor do not create leave unless the communication is properly construed as a grant.

A letter suspending consideration for 60 days, and inviting withdrawal, a fresh application or variation after a new CAS, was not a grant of leave. The court therefore resolved the appeal on the anterior question of existing leave and left the effect of departure to Ireland under section 3C(3) undecided. Without leave, the appellant’s re-entry was illegal and the removal decision stood.

The appellant, an Indian national, had student leave curtailed to 12 April 2013 after his educational sponsor’s licence was revoked. An application made on 11 April 2013 without the proper fee was rejected as invalid. The appellant later relied on a January 2014 letter allowing 60 days to find a new educational provider and argued that it granted leave capable of extension under section 3C of the Immigration Act 1971.

After travelling to the Republic of Ireland in June 2016, he challenged a decision that he was unlawfully present and liable to removal. The Upper Tribunal, in a decision dated 17 November 2017, dismissed his claim for permission to apply for judicial review. The central issue before the Court of Appeal was whether the appellant had valid leave in June 2016. The proposed issue concerning departure to Ireland arose only if that question was answered affirmatively.

Appeal dismissed. The court unanimously concluded that the appellant had no valid limited leave to remain in June 2016. The question whether leave extended under section 3C(3) of the Immigration Act 1971 lapsed on departure to Ireland was therefore academic and was not decided.

1. Section 3C presupposes existing limited leave. Under section 3C(1)(a), there must be leave to enter or remain capable of being varied and extended. If the underlying leave has expired, there is nothing for section 3C to extend.
2. The appellant’s original leave was curtailed to 12 April 2013. His application made on 11 April 2013 lacked the required fee. Under regulation 37 of the Immigration and Nationality (Fees) Regulations, the application was invalid. The appellant consequently had no leave after the curtailed period, and no later grant of leave was established.
3. The January 2014 letter did not grant limited leave. It stated that consideration would be suspended for 60 days and invited the appellant to withdraw the application, leave the United Kingdom, or vary the application after obtaining a new CAS. Neither its wording, context nor purpose required it to be construed as a grant of leave.
4. R v Immigration Tribunal, ex p. Ahluwalia [1979-80] Imm AR 1 was distinguishable. The language in that case, concerning authority to remain pending a decision, was materially different and did not assist the appellant.
5. Since the appellant had no leave capable of extension, his re-entry in June 2016 was illegal and the removal decision was unimpeachable. The court also noted that compliance with CPR Practice Direction 52C paragraph 19 would likely have avoided the appeal and saved costs.

• Court of Appeal (Civil Division): On 28 February 2019, dismissed the appeal. It decided that the appellant had no leave capable of extension and left the section 3C(3) departure issue undecided.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Pitt, on 17 November 2017, dismissed the appellant’s claim for permission to apply for judicial review of the Secretary of State’s removal decision.
• Secretary of State for the Home Department: On 20 June 2016, decided that the appellant was in the United Kingdom without leave and liable to removal.