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

An application to vary leave under section 3C of the Immigration Act 1971 may be varied only before it is decided. It is decided when refusal is made and notified to the applicant. Administrative review is a review of that refusal, not a continuation of the original decision-making process. Section 3C nevertheless continues leave while an administrative review may be sought or is pending.

Procedural fairness is context-specific. In a points-based Tier 2 application, where the Immigration Rules permit information to be requested from a sponsor and the sponsor is warned that non-compliance may lead to refusal, fairness does not require the Secretary of State to notify the applicant or enable the applicant to pursue the sponsor.

The appellant, a Bangladeshi national with Tier 4 student leave, applied to switch to Tier 2 (General) Migrant leave. His proposed employer supplied a certificate of sponsorship, but did not answer the Secretary of State’s request for further information about the post and its business. The application was refused on the basis that the vacancy was not shown to be genuine.

While his administrative review was pending, the appellant sent a letter advancing an Article 8 claim. He contended that this varied his original application and continued his leave under section 3C of the Immigration Act 1971. He also alleged procedural unfairness because he had not been told of the request to his sponsor.

The Upper Tribunal (Immigration and Asylum Chamber), Upper Tribunal Judge Allen, dismissed the judicial-review claim on 18 July 2019 (JR/7887/2018). The appeal concerned when an application is decided for section 3C purposes and whether fairness required notice to the applicant of the request sent to the sponsor.

Decision

1. The court dismissed the appeal. Lord Justice Lewis gave the judgment, with which Lord Justice Males and Lord Justice Floyd agreed.

2. Under section 3C of the Immigration Act 1971, an application to vary existing leave may itself be varied before it is decided. Applying JH (Zimbabwe) [2009] Imm A.R. 3, once a decision has been made there is no application left to vary. An application is decided, in the ordinary sense, when it is granted or refused and the applicant is notified.

3. Administrative review is structurally distinct from the original decision. AR2.1 defines it as a review of an eligible decision for caseworking error, and AR2.2 treats the refusal as either withdrawn or remaining in force. Section 3C(2)(d) separately continues leave while administrative review may be sought or is pending. It follows that review does not defer the decision of the original application or permit a fresh variation during review.

4. The appellant had not varied the Tier 2 application before its refusal on 27 September 2018. His leave continued during the pending administrative review, but ceased when the review outcome was notified on 31 October 2018. It was therefore unnecessary to decide whether the letter of 18 October 2018 was otherwise a valid variation.

5. Procedural fairness depended on the points-based system and the applicable Rules. The Secretary of State was entitled to request material from the sponsor to assess whether the vacancy was genuine and to refuse if it was not supplied. The sponsor received both the request and a warning of the possible consequence. The appellant was not entitled to notice so that he could chase the sponsor. R (Pathan) [2020] UKSC 41 concerned the materially different revocation of a sponsor’s licence, which made the application bound to fail without the applicant’s knowledge. It established no universal notice requirement.

The appeal was dismissed, with costs to the respondent subject to detailed assessment if not agreed. Permission to appeal to the Supreme Court was refused.

• Court of Appeal (Civil Division) — dismissed the appeal in [2020] EWCA Civ 1525.

• Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Allen dismissed the judicial-review claim on 18 July 2019 (JR/7887/2018).