Kalsi & Ors, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)

Under the Immigration Rules, an application by an overstayer for leave as a Tier 1 (Entrepreneur) Migrant must be refused unless paragraph 39E applies. An application made “in-time” is one made before the applicant’s leave expires. Paragraph 39E permits a limited further application after an earlier in-time application, but does not extend leave or create a rolling sequence of further protected applications.

Paragraph 39E(2) gives no power to extend its 14-day period. Nor does the Secretary of State have a residual discretion under the points-based scheme to grant leave where the Rules require refusal. A rebuttable presumption of postal service may be displaced by evidence that a decision was not in fact given to the applicant or authorised representative, but that issue could not affect the mandatory refusal in this case.

The appellant had held leave as a Tier 1 (Entrepreneur) Migrant. His leave was extended under section 3C of the Immigration Act 1971 while an in-time application and administrative review were pending, but expired when the administrative-review decision was served. A later application was treated under paragraph 39E of the Immigration Rules, although it was refused on other grounds.

After a further application was refused, the Secretary of State reconsidered it pursuant to a consent order in earlier judicial-review proceedings. The reconsidered refusal and administrative-review decision maintained that the appellant was an overstayer and did not meet paragraph 39E. The Upper Tribunal refused permission to seek judicial review, first on the papers and then after a renewed hearing.

The appeal concerned whether paragraph 39E protected the further application, whether the Secretary of State retained a residual discretion to grant it, and whether the prior administrative-review decision was served only when it reached the appellant’s former solicitors.

1. Appeal dismissed. Lady Justice Elisabeth Laing, with whom Lord Justice Lewis and Lady Justice King agreed, held that the appellant’s third application had to be refused under paragraph 245DD(g) of the Immigration Rules. An applicant in breach of immigration law cannot obtain this leave unless paragraph 39E applies.
2. An application made “in-time” in paragraph 39E(2) means an application made before the applicant’s leave expires. The appellant’s first application was the last such application. Section 3C of the Immigration Act 1971 had extended his leave only until service of the administrative-review decision on that application. His second application was protected by paragraph 39E because it followed that in-time application within 14 days, but paragraph 39E did not extend his leave or make the second application itself an in-time application.
3. The third application followed the second, not an in-time application. It therefore failed paragraph 39E(2)(a). The references in paragraph 39E(2)(b) to the previous application also referred back to the previous in-time application. The application was consequently outside the exception and the Secretary of State was bound to refuse it.
4. The decision letters had incorrectly assumed that a discretion might be exercised. Paragraph 39E(1) contains only a discretion to accept a late application made within 14 days where there was a qualifying reason for the delay. It does not extend that period. Nor was there a residual discretion under the points-based scheme to grant leave contrary to a mandatory ground of refusal. The Court was bound by the authorities relied on by the Secretary of State, including Junied v Secretary of State for the Home Department [2019] EWCA (Civ) 2293.
5. The Court nevertheless considered service because it could bear on costs. Appendix SN created a rebuttable presumption that the decision had been given. It was arguable that evidence that an unconnected occupier received it, and only later passed it to the appellant’s solicitors, displaced that presumption and showed service on 20 rather than 15 June. It was also arguable that the Secretary of State failed to engage with that evidence. Those points could not overcome the mandatory refusal.

• Court of Appeal (Civil Division): dismissed the appeal in [2021] EWCA Civ 184.
• Upper Tribunal (Asylum and Immigration Chamber): refused permission to apply for judicial review, first on the papers and then after a renewed oral hearing.