ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE ETHERTON
| QI ( PAKISTAN )
|- and -
SECRETARY OF STATE
FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court )
Mr Jason Beer QC (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Pill:
"To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused."
"The applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant's current entry clearance or leave to remain granted under these Rules expires."
"In view of the fact that there is a gap of more than one month between the end of your current leave (which expires on 30 May 2009) and the start of your new course as detailed in your visa letter [dated] 20 July 2009 the Secretary of State is not satisfied that you meet the requirements of 245ZX(l) of the rules and your application is refused"
A further issue was raised which is not now material.
"I consider the appellant's submissions on this point are ill founded. Whilst I would accept that the rule is badly drafted it is inescapably clear that 'current leave to remain' must refer to an appellant's substantive period of permitted leave, in the appellant's case the leave he had from 28 May 20080 to 30 May 2009. Were the above expressly to denote Section 3C leave [I will refer to that Section in a moment] then time would never start to run and the requirement would be meaningless. Further at the time the appellant made his application his leave could only have been his substantive leave . His section 3C leave could not have come into being until after he received a decision. That is because a section 3C leave does not arise until ' leave expires without the application for variation having been decided'. (Section 3C(c). Accordingly the IJ cannot be faulted for concluding that the appellant's proposed course was not due to commence until more than one month after his leave to remain expired.
…. the other observation concerns the fact that not only Mr Khan for the appellant but Mr Premble for the respondent [Mr Premble is a Home Office presenting officer] took the view that paragraph 245 ZXL should be considered as having no application to the appellant because he had a Section 3C leave and so time in his case had not started to run. The fact that the respondent as well as the appellant makes such a construction is something I take into account but I am not bound to regard it as correct and it was not made as a concession in the appellant's case. The tribunal is obliged to interpret and apply the law as contained in the Immigration Rules. For reasons already given I consider that … the IJ correctly concluded that the appellant was caught by paragraph 245ZX(l) and that he was right to find that the appellant could not show that his proposed course would commence within one month of expiry of his current leave to remain."
"We agree with the reasoning of the tribunal in QI on this point. The proper interpretation of the phrase 'current ... leave to remain' at paragraph 245ZQ(l) [that should be ZX(1)] is that it is a reference to a substantive period of leave. In the instant case the leave was from 22 June 2008 to 30 June 2009 and that was the only leave the appellant had at the time when she made her application. Her leave under Section 3C would not come into being until after she had received a decision since such leave only arises when, as it is put in Section 3C(1)(c), the leave expires without the application for variation having been decided. Accordingly we consider that the Immigration Judge erred in this regard and although in our interpretation of the immigration rules she and her dependants, the second and third appellants, meet the financial requirements (paragraph 245 ZX(d) of having the necessary funds available, the appeal must be dismissed on the basis that they do not satisfy the requirements of paragraph 245ZX(l)."
"The SSHD made it clear before the tribunal that paragraph 245ZX(l) should be considered as having no application to the appellant because he had a Section 3C leave. Thus the tribunal's interpretation is not only inconsistent with the natural reading of the rule but also with what the SSHD had intended, which was made clear by the SSHD's representative. The interpretation is therefore unsustainable."
"It is somewhat misleading for the grounds to suggest that the SSHD made it clear before the tribunal and the position was that 1) the respondent had not made a concession on the application of paragraph 245ZX(l) in the appellant's case and that 2) all that had happened was that the Home Office presenting officer had made a submission urging that the tribunal apply the same approach to the construction as that urged by the appellant [that part of the reason may be contentious]. As the tribunal stated at paragraph 11 the tribunal is obliged to interpret the law as contained in the Immigration Rules. It is not obliged to accept one party's interpretation."
"(1) This section applies if—
(a) a person who 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, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom, 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, brought while the appellant is in the United Kingdom, 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)."
"The key to the matter is an understanding of how s.3C operates . . . The section applies, by subs.(1), where an application for variation of an existing leave is made before that leave expires (and provided that there has been no decision on that application before the leave expires). In that event there is, by subs.(2), a statutory extension of the original leave until (a) the application is decided or withdrawn, or (b), if the application has been decided and there is a right of appeal against that decision, the time for appealing has expired, or (c), if an appeal has been brought, that appeal is pending: I paraphrase the statutory language, but that seems to me to be the effect of it. During the period of the statutory extension of the original leave, by subs.(4) no further application for variation of that leave can be made. Thus, there can be only one application for variation of the original leave, and there can be only one decision (and, where applicable, one appeal). The possibility of a series of further applications leading to an indefinite extension of the original leave is excluded. However, by subs.(5) it is possible to vary the one permitted application. If it is varied, any decision (and any further appeal) will relate to the application as varied. But once a decision has been made, no variation to the application is possible since there is nothing left to vary."
I respectfully agree with that comprehensive statement of the effect of section 3C by Richards LJ. I underline the words that, by virtue of subsection (2), there is "a statutory extension of the original leave".
"And upon the court having considered the statement of reasons being satisfied that there are good and sufficient reasons to allow the appeal without determining the merits is hereby ordered by consent 1) the appeal be allowed 2) the matter be remitted to the respondent in order for her to grant an appropriate period of leave to the appellant under tier 4 rules subject to satisfactory security checks. 3) there be no order as to costs "
"The relevant paragraph 245ZX(l) having been cited, the respondent accepts that as currently drafted paragraph 245ZX(l) of the immigration rules can be considered to: ' include leave to remain as extended by virtue of section 3C of the Immigration Act 1971. The parties therefore agree that the tribunal erred in holding that leave extended by virtue of section 3 of the Immigration Act 1971 cannot be taken into account for the purpose of calculating whether a person's leave expires more than one month before his proposed course commences. The respondent therefore further agrees that the tribunal's conclusion in paragraph 23 of HM and Others already cited in following the tribunal's decision in this case was incorrect. In the light of the above the parties agree that the appropriate course of action would be for the appeal to be allowed and the matter remitted to the respondent in order that she grants the appellant an appropriate period of leave under the tier 4 rules, subject to satisfactory security checks."
"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future".
Lord Justice Longmore :
Lord Justice Etherton:
Order: Appeal allowed