Rules on immigration confusing

(1) The claimant, Javed Iqbal, against the decision of the Upper Tribunal (Immigration and Asylum Chamber) on November 14, 2013;

(2) The claimant, Muhammad Mirza, against the decision of Mr Justice Phillips sitting in the Queen’s Bench Division on October 9, 2013; and

(3) The claimant, Humaira Ehsan, against the decision of Judge Gill, sitting as a deputy judge of the Queen’s Bench Division on August 20, 2013.

By those decisions the claimants were all refused permission to seek judicial review of the home secretary’s rejection of their applications for variation of their leave to remain in the UK.

The claimants applied to vary their periods of leave to remain before their leave had expired, but their applications were treated by the home secretary as invalid on the basis that they had not been presented in accordance with the relevant rules as to fees or the provision of biometric information: see regulation 37 of the Immigration and Nationality (Fees) Regulations 2011 (SI 2011 No 1055) and regulation 3 of the Immigration (Biometric Registration) Regulations 2008 (SI 2008 No 3048).

The claimants’ subsequent applications for variation of leave were made after their original periods of leave had expired. The home secretary refused the applications, concluding that section 3C of the Immigration Act 1971 (as substituted by section 118 of the Nationality, Immigration and Asylum Act 2002) did not apply so as to extend their leave to remain pending determination of the second applications and that, as they had no existing leave to remain, different and less favourable policies applied to their second applications.

Mr Zane Malik and Ms Niaz Shah for the claimants in the first and third cases; Mr Zane Malik and Mr Atif Wattoo, solicitor advocate, for the claimant in the second case; Mr Robin Tam, QC and Ms Samantha Broadfoot for the home secretary.

LORD CARNWATH, with whom the other members of the court agreed, said that section 3C of the 1971 Act extended a person’s leave to remain pending determination of an application to vary the period of leave, provided that the application was made before the expiry of the original leave.

The principal issue was how section 3C applied where an application was made in time, but was procedurally defective for some reason. In two cases (Mr Iqbal and Mr Mirza) the defect related to non-payment of fees; in the third case (Ms Ehsan), failure to provide biometric information.

His Lordship had found the case troubling. It was particularly disturbing that the home secretary herself had been unable to maintain a consistent view of the meaning of the relevant rules and regulations.

The public, and particularly those directly affected by immigration control, were entitled to expect the legislative scheme to be underpinned by a coherent view of its meaning and the policy behind it. There was an overwhelming need for rationalisation and simplification of the present area of the law.

However, the appeals had to be decided within the legislation as it stood, there being no challenge to the legality or rationality of the relevant rules and regulations. The issues had to be approached by the application of the ordinary principles of statutory interpretation. They started from the natural meaning of the words in their context.

On that basis his Lordship had no doubt that, at least in respect of Mr Iqbal and Mr Mirza, the Court of Appeal had reached the correct conclusion. There was no ambiguity in the words of regulation 37 of the 2011 Regulations. It provided in terms that if an application was not accompanied by the specified fee the application was “not validly made”.

In ordinary language an application which was not validly made could have no substantive effect. There was nothing in the regulation to exclude section 3C from its scope. Nor was there anything in the history of the provisions to support a different approach. It followed that the appeals of Mr Iqbal and Mr Mirza had to be dismissed.

His Lordship had found more difficulty with the case of Ms Ehsan. There was a potentially important distinction between the applicable provisions in her case.

The obligation to pay the fee arose at the time of the application. There was no conceptual difficulty in providing that an application unaccompanied by a fee was invalid from the outset.

The requirement to apply for biometric information arose only at a later stage, on receipt of a notice from the home secretary: see regulation 3 of the 2008 Regulations.

It was difficult to see any reason why a failure at that stage should be treated as retrospectively invalidating the application from the outset, and so nullifying the previous extension under section 3C of Ms Ehsan’s leave to remain.

There appeared to be nothing in section 7 of the UK Borders Act 2007 (which dealt with the effect of non-compliance with regulations made under the Act, such as the 2008 Regulations) to support such retrospective effect.

Regulation 23(2)(b) of the Regulations, as in force at the time of the home secretary’s decision, did no more than give the home secretary power to “treat” an application as invalid on failure to comply with a requirement to provide biometric information.

The natural reading of that regulation, which was consistent with the statutory purpose, was to give power to invalidate the application as from the time of the decision, but not before.

However, that reading would not help Ms Ehsan herself. Even if her leave was treated as continuing until the date of the home secretary’s decision on the first application, it would not assist her in respect of her second application. Accordingly, her appeal would also be dismissed.

Solicitors: Mayfair Solicitors; AWS Solicitors; Treasury Solicitor.