DA (Section 3C – meaning and effect) Ghana  UKAIT 00043
Date of hearing: 28 November 2006
Date Determination notified: 25 April 2007
|Secretary of State for the Home Department||RESPONDENT|
(1) The prohibition on new applications in s3C(4) of the 1971 Act must be given its proper force. It is not open to the Secretary of State to treat an entirely new application as merely a variation of an existing one. (2) Once an application has been decided it is not capable of being varied. (3) Once a decision is the subject of a pending appeal, any variation is a matter for the grounds of appeal, not a variation under s3C(5). (4) The effect of s3C(4) is that there can be only one application that is the subject of an appeal to the Tribunal. Any matters on which the appellant relies to substantiate a claim under the Immigration Rules need to be argued in that appeal. The determination of the appeal must be regarded as having decided the issues arising from the application and any variations of it.
|3 July 2001||Appellant entered United Kingdom and was granted leave to enter as a student. On application further leave was granted, the last period of leave expiring on 30 June 2004|
|16 May 2004||The appellant applied for leave to remain in the United Kingdom as the unmarried partner of the sponsor.|
|15 June 2004||The appellant withdrew his application for leave to remain as an unmarried partner, recognising that he did not meet the requirements of the Immigration Rules, but asserting that he wished to take a full part in the upbringing of their expected child.|
|18 June 2004||The appellant applied for leave to remain in the UK as a student.|
|30 June 2004||The date of expiry of the appellant's leave to remain as a student.|
|1 July 2004||The appellant's application for leave to remain as a student was refused on the ground that both his application for leave to remain as an unmarried partner and the terms of his withdrawal of that application suggested that he had no intention to leave the United Kingdom at the end of his studies.|
|5 July 2004||The appellant applied again for leave to remain in the United Kingdom as the unmarried partner of the sponsor ("the second application").|
|3 December 2004||An Adjudicator dismissed the appellant's appeal against the decision of 1 July 2004 refusing him leave to remain as a student. The determination was based not only on the reason given by the Secretary of State in the Notice of Refusal (see above) but also on the ground that there was before the Adjudicator no evidence of the appellant's financial circumstances. The Adjudicator made no reference in his determination to the appellant's intentions or application as an unmarried partner: the determination does not appear to consider that aspect of the appellant's case. The appellant did not seek permission to appeal against the Adjudicator's determination.|
|7 January 2005||The appellant submitted an application for leave to remain as the unmarried partner of the sponsor ("the third application").|
|25 January 2005||The third application was returned to the appellant because he had not submitted the documents required or enclosed the appropriate fee.|
|28 January 2005||The appellant re-submitted the third application, within the time allowed by the Secretary of State for doing so.|
|15 June 2006||The third application was refused. The letter of refusal made it clear that one ground for the refusal was that the appellant has not had "any leave to enter or remain in the United Kingdom since the 30/06/04", and therefore cannot meet the requirements of paragraph 295D(i) and (iv) of the Statement of Changes in Immigration Rules, HC 395, and that, in addition, as sufficient financial evidence had not been submitted, the appellant had not demonstrated that he was able to meet the requirements of paragraph 295D(ix). Having accordingly treated the application as an application outside the Rules on the grounds that the appellant's removal would breach his human rights, the Secretary of State refused the application and made a decision to remove the appellant by way of directions given under s10 of the 1999 Act. The appellant appealed, in time, on grounds which are in entirely general terms, save for an assertion that the second application "is still pending with the respondent for further consideration".|
"It is quite clear to me that he had no real intention to rely on his student application at the time that he submitted his second application for leave to remain as an unmarried partner. The whole basis of this application was, I find, to secure for himself long-term settlement in the UK. … I am satisfied that the appellant had no … intention to vary his application which he submitted on 18 June 2004 when he submitted a completely different type of application on 5 July 2004."
Section 3C and its history
"3C. Continuation of leave pending variation decision
(1)This section applies if -
(a)a person has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b)the application for variation is made before the leave expires, and
(c)the leave expires without the application for variation having been decided.
(2)The leave is extended by virtue of this section during any period when –
(a)the application for variation is neither decided nor withdrawn,
(b)an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c)an appeal under that section against that decision is pending (within the meaning of section 104 of that Act.)
(3)Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5)But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
(6)In this section a reference to an application being decided is a reference to notice of the decision being given in accordance with regulations under section 105 of that Act (notice of immigration decision).
(Further changes were made with effect from 31 August 2006 by s11 of the Immigration, Nationality and Asylum Act 2006. They have no effect on this appeal or on the matters we discuss here.)
The Immigration Directorates' Instructions
"However s3C makes a clear distinction between the decision on the application and the appeal against that decision. Once an application has been decided it ceases to be an application and there is no longer any application to vary under s3C(5). So any new information will fall to be dealt with during the course of the appeal rather than as a variation of the original application." (emphasis added)
Application to the present case
C M G OCKELTON