Naresh Kumar Marepally v Secretary of State for the Home Department

A deficient immigration decision notice is not necessarily and permanently ineffective. Failure to tell an applicant about a right of appeal may justify correction or quashing, but the notice may retain legal effect if it has not been quashed, particularly where the applicant suffered no prejudice and the substantive appeal could not succeed. Section 3C protects lawful status while an application, appeal or review is pending. It does not allow a person to accumulate 10 years’ residence by relying indefinitely on a notice defect. A later compliant notice determines the application and ends continuation before the long-residence threshold. Where the outcome is inevitable, an appellate court may treat an error as immaterial and dismiss without remittal.

The appellant appealed against the Upper Tribunal’s dismissal of his challenge to the refusal of indefinite leave to remain based on 10 years’ continuous lawful residence. The First-tier Tribunal had dismissed his appeal against the respondent’s decision of 6 June 2019.

The appellant argued that the 2017 notice refusing Tier 5 leave was defective because it omitted his right of appeal and instead referred to administrative review. He contended that the application remained undetermined and that his existing leave continued under section 3C of the Immigration Act 1971. The Upper Tribunal had wrongly concluded that he had waived the defect by an earlier appeal. The central issues were whether that error was material and whether the defective notice preserved leave until the appellant completed 10 years’ continuous lawful residence.

Lewis LJ gave the leading judgment. Baker LJ and Holroyde LJ agreed. The appeal was dismissed.

1. Notice of decision. The respondent must notify an applicant of an appealable immigration decision and provide reasons and appeal information under the Immigration (Notices) Regulations 2003. A failure to give required appeal information may render a notice invalid and may justify correction or quashing. It does not, however, make the notice necessarily and permanently ineffective. Unless quashed, the notice continues to exist and may retain legal effect, particularly where the applicant had actual awareness of the appeal right or suffered no injustice. This was consistent with E1 (OS) Russia v Secretary of State for the Home Department [2012] EWCA Civ 357 and the distinction between a decision and its notice recognised in JN (Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 307.
2. Khan. The passage in Khan v Secretary of State for the Home Department [2017] EWCA Civ 424 recording that time had not begun to run was merely a record of common ground and was not a binding ruling on the effect of every defective notice. Khan concerned a person seeking to appeal a particular decision, not a person seeking to exploit a notice defect to accumulate residence without pursuing the substantive appeal.
3. Application to the appeal. The Upper Tribunal erred in believing that the appellant had appealed against, and thereby waived any defect in, the 2017 decision. That error was immaterial. The appellant was not seeking to exercise the lost appeal right; he accepted that the Tier 5 refusal was correct and sought instead to rely on the notice defect to preserve leave. Any appeal against the refusal would have been bound to fail. There was consequently no historic injustice or prejudice and no purpose in remitting the case.
4. Later application. Even assuming that the 2017 application remained undetermined, it was later varied by the human-rights application. The notice sent in January 2019 gave reasons and informed the appellant of his right of appeal from outside the United Kingdom. It complied with regulation 5 of the 2003 Regulations and determined the application before the appellant completed 10 years’ continuous lawful residence. Section 3C therefore could not preserve leave until the relevant date. The court did not need to decide when leave had ended in 2014 or the respondent’s abuse-of-process argument.
5. Disposition. The errors below were not material. The appellant did not satisfy paragraph 276B of the Immigration Rules, and the appeal was dismissed.

• Court of Appeal (Civil Division): held that the Upper Tribunal had erred in its treatment of the defective 2017 notice, but dismissed the appeal because the error was immaterial and the appellant could not qualify for indefinite leave.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal from the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appeal against refusal of the application for indefinite leave to remain.