Roslyn Scott, R (on the application of) v Secretary of State for the Home Department

Where an applicant submits a further application for leave to remain while an earlier application remains undecided, the applicable version of rule 34BB may treat the later application as a variation of the earlier one, leaving only the later application outstanding. The relevant version of the Immigration Rules must be identified by reference to the date on which the rule operated on the application.

Where Appendix EU disapplies the notice requirement in rule 34BB(5), the Rules impose no express or implied obligation to notify an applicant that an earlier application has been voided. The common-law duty recognised in Anufrijeva does not apply where the outcome is an automatic and inevitable consequence of the Rules, rather than a discretionary decision.

The claimant, a US national, made an application for indefinite leave to remain based on long residence. Before it was determined, she submitted an application under Appendix EU based on an asserted Zambrano right to reside. The Secretary of State treated the first application as voided when consideration of the later application began, but did not notify her.

Judicial review challenged both the voiding and the absence of notification. A separate challenge to the application fee became academic after the fee was refunded. The central issues were the effect of the version of rule 34BB and paragraph EU10(2) in force in February 2022, and whether notification was required.

1. Ground 1 dismissed. The court applied the version of paragraph EU10(2) of Appendix EU in force between 1 January and 14 February 2022. That version disapplied only rule 34BB(3) to (5), leaving sub-paragraphs (1) and (2) operative.
2. Under rule 34BB(2), where a later application is submitted while an earlier application remains undecided, the later application is treated as a variation of the earlier application. The earlier application therefore ceased to exist in its original form, leaving only the EU application. The voiding took effect when the later application began to be considered.
3. Akinsanya did not alter that conclusion. It concerned the unlawful refusal to entertain an EUSS application. Here, the EU application was considered and refused; the challenge concerned the failure to determine the earlier ILR application. The Consent Order and declaration in Akinsanya could not be extended beyond their wording.
4. Ground 2 dismissed. Paragraphs SN1.2 and SN1.3 of Appendix SN conferred discretion as to the method of communication, but not as to whether notice was required. Rule 34BB(5) ordinarily required written notice of invalidity, but paragraph EU10(2) disapplied that requirement where the earlier application was automatically affected by a later Appendix EU application.
5. The reasoning in Anufrijeva was distinguishable. That case concerned a discretionary asylum refusal which could not have legal effect against the claimant before communication. The voiding here was automatic and inevitable, involved no exercise of discretion, and was properly characterised as a consequence of the Rules rather than a decision requiring notification.
6. The remaining grounds were dismissed and the claim failed. The fee issue was academic.