Tapan Kumar Das & Anor v Secretary of State for the Home Department

The validity of an application for leave to remain is determined by the Immigration Rules in force when it is made or purportedly made. Where those Rules provide that non-compliance with a specified-form requirement makes an application invalid, no notice of invalidity is required before it is invalid and incapable of extending leave under section 3C.

A later, more lenient version of the Rules cannot retrospectively validate an application which was invalid at the relevant time. In appellate proceedings, professional advocates are ordinarily confined to grounds for which permission has been granted unless they make a formal and timely application to vary them. Following a Cart judicial review, permission is granted by reference to the grounds before the Upper Tribunal.

The appellants, a Bangladeshi married couple, appealed against the First-tier Tribunal’s dismissal of their human-rights appeals. The first appellant sought indefinite leave to remain under paragraph 276B of the Immigration Rules, relying on ten years’ continuous lawful residence.

His September 2008 application for further leave used an obsolete form. The First-tier Tribunal held that it was invalid, creating a break in lawful residence, and rejected the associated Article 8 claim. After refusals of permission in the First-tier and Upper Tribunals, the refusal was quashed following a Cart judicial-review application. The appellants then sought to advance a new argument that the 2008 application had remained valid until notice of invalidity was given.

1. The appeals were dismissed. The First-tier Tribunal had made no error of law and its decision stood.

2. The appellants’ new argument was outside the grounds on which permission had been granted. Appellate grounds define the arguments which may be advanced. In the absence of a formal and timeous application to vary the grounds, a professional advocate should expect to be confined to those grounds. This applies equally in the Upper Tribunal. Following the successful Cart judicial-review procedure, permission was granted on the grounds presented to the Upper Tribunal, rather than on the judicial-review grounds.

3. In any event, the new argument failed. At the time of the September 2008 application, paragraph 34A(i) required use of the specified form and paragraph 34C provided that an application not complying with paragraph 34A would be invalid and would not be considered. The first appellant used the wrong form. The application was therefore invalid when purportedly made, without any requirement that the Secretary of State first give notice.

4. The distinction drawn in Mirza [2016] UKSC 63 supported that conclusion. An application invalid at the outset cannot have substantive effect or engage section 3C of the Immigration Act 1971. The notice authorities concerned effective notice of substantive decisions and did not alter the result.

5. The later amendments to the Immigration Rules, which permitted notice and an opportunity to correct some defects, did not have retrospective effect. Nor could the long-residence policy assist on the facts. The Tribunal’s further observations about the 2016 chronology, including section 3C(4), were preliminary observations for any future application and did not form part of its decision.

6. The Article 8 claim, independently of paragraph 276B, was plainly unsustainable: the family would return together to Bangladesh and no unjustifiably harsh consequences were shown.

• Upper Tribunal (Immigration and Asylum Chamber): Appeals dismissed; the First-tier Tribunal’s decision stood.

• Administrative Court: Following an application under CPR rule 54.7A, permission to apply for judicial review was granted and the Upper Tribunal’s earlier refusal of permission was quashed.

• Upper Tribunal (Immigration and Asylum Chamber): A renewed application for permission to appeal had previously been refused by Upper Tribunal Judge Kebede.

• First-tier Tribunal: Judge Keith dismissed the appeals, holding that the first appellant could not meet paragraph 276B of the Immigration Rules and that removal would not breach Article 8 ECHR.