England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th April 2011

Lord Justice Pill:

1. This is an appeal by QI against a decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 5 July 2010. Permission to appeal has been granted on a consideration on the papers having been refused by the tribunal.
2. The appellant is a citizen of Pakistan now aged 22 years. On 28 May 2008 he was granted leave to enter the United Kingdom as a student until 30 May 2009. On 29 May 2009 he applied for further leave to remain as a tier 4 (general) student, a category recognised in the immigration rules at rule 245ZT and following.
3. He wished to study for the ACAA at the London School of Business and Finance. A letter from the school showed that the course was due to commence on 20 July 2009. Rule 245ZX, under the heading "Requirements for leave to remain", provides:

"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."

4. A series of requirements is set out and includes at paragraph (l):

"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."

5. On 10 August 2009 the Secretary of State for the Home Department refused the application under paragraph 245ZX(l) of the Rules and under another paragraph which is not now material. The decision letter stated :

"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.

6. QI appealed against the Secretary of State's decision under Section 82(1) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act"). The right of appeal against an immigration decision conferred by section 82 includes a right of appeal against a refusal to vary a person's leave to remain in the United Kingdom.
7. The appeal was dismissed by the tribunal on 13 October 2009 and the reason given in the Secretary of State's letter was endorsed. On 19 November 2009 an order for reconsideration was made. As indicated, the appeal was dismissed on 5 July 2010. Senior Immigration Judge Storey stated at paragraph 10:

"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."

8. The tribunal reached the same conclusion on the effect of the rule in HM and Others v SSHD [2010] 446 UKUT (IAC). That case was heard on 23 July 2010, that is after the decision in the present case. The tribunal consisted of Blake J, President, Mr CMG Ockelton VP and Senior Immigration Judge Allen. In the present case the same concession was not made on behalf of the Secretary of State, although a presenting officer, who we are told is an experienced presenting officer, appeared for the Secretary of State. The tribunal stated at paragraph 23 :

"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)."

9. I refer to subsequent procedures in the present case because of its relevance to the submission made by Mr Beer QC on behalf of the Secretary of State that I ought not to be giving this judgment. In the application to the Senior Immigration Judge for permission to appeal to this court, reliance was placed on the approach of the Secretary of State's representative before the tribunal. It was submitted on the appellant's behalf:

"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."

10. Senior Immigration Judge Storey reacted robustly and appropriately:

"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."

11. Section 3C of the Immigration Act 1971 provides:

"(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)."

12. The effect of that section was considered in this court in JH (Zimbabwe) v SSHD [2009] EWCA Civ 78, where there were other and different issues. Richards LJ, giving a judgment with which Wall LJ and Laws LJ agreed, stated at paragraph 35:

"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".

13. For the appellant, Mr Malik submits that the application for further leave to remain as a student was made on 29 May 2009, that is before the leave granted had expired. The requirements specified in Section 3C(1)(a) and (b) of the 1971 Act were met. The leave then expired without the application for variation having been decided so that the requirement in Section 3C(1)(c) is met. It follows from Section 3C(2)(a), it is submitted, that, the application for variation not having been withdrawn, leave is extended until the appeal against the refusal of an extension order is decided. Once an appeal under section 82(1) of the 2002 Act is brought, there is a further period of extension. Mr Malik's submissions fit entirely with the construction of the effect of the section by Richards LJ in JH.
14. Mr Beer, for the Secretary of State, takes a similar view of the statutory scheme. Neither counsel has been able to tell us how the distinction between substantive leave and allegedly fresh leave has found its way into the reasoning of the tribunals. Counsel are agreed that Rule 245ZX(l) does not operate to defeat the appellant in this case. The existence of leave is not, it is submitted, by Mr Beer excluded by the rule. The natural meaning of the words in the rule is that it will not operate while leave is extended. The leave as extended is not a new or different species of leave; the existing leave is extended.
15. I agree with counsel that rule 2452X(l) does not operate to invalidate the application. The decision of the Secretary of State was taken while leave to remain was in existence. The relevant date for studies was 30 July 2009, that is before the decision was made by the Secretary of State. I do not agree with the conclusion of the tribunals in the two cases that leave under section 3C(1)(c) did not come into being until after the Secretary of State's decision was taken. The section expressly provides that leave is extended while consideration of the application for variation is pending.
16. That being so, I would propose to allow the appeal and remit the application to the Secretary of State so that she may grant the application for leave to remain.
17. Mr Beer submits that to save costs the court should not have given the judgment in this case. The Secretary of State was prepared in a consent order to grant leave and the issue the court has now determined was academic. There was no need for the court to decide it in a judgment.
18. The procedure followed, not an unusual one, was that when the Secretary of State is prepared to allow an appeal either fully, or to the extent of agreeing the remittal of the case to the tribunal, a consent order is sought so that costs may be saved and without the need for the parties to appear. It is required that a statement of reasons accompanies that consent so that the court may know on what basis the appeal against the decision of the tribunal is being allowed. The proposed consent order was, so far as material, in these terms:

"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 "

19. The reasons given were these:

"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."

20. Mr Malik submits that a reasoned judgment of this court was in the circumstances required. He submits that both decisions of the Upper Tribunal will have appeared on the website used by the tribunal judiciary. He submits that it would be extremely difficult for a first tier judge to ignore the effect of the decisions. Immigration Judges are expected to apply decisions which are circulated in that way. Mr Malik used the word "reported" but it is not suggested that they have been reported in the conventional sense of appearing in a law report.
21. Those appearing for applicants for this type of leave will have extreme difficulty, it is submitted, in persuading immigration judges around the country to ignore the decisions of tribunals of the Upper Tier, particularly when the tribunal has been presided over by the President and other senior members. He submits that, even though the case of HM was heard after the decision in the present case had been promulgated by the tribunal, no concession was made in that case on behalf of the Secretary of State such as was made before the tribunal in the present case. Clearly the message had not reached the constitution, in which the President was presiding, that a concession had been made in the earlier case. Mr Beer sought to assure the court that it is the practice of the Secretary of State in considering applications to adopt the approach which this court has now adopted. Mr Malik says that that is not a practice which has been published and that one can have no confidence in it when one sees that the President in a later case clearly had not been informed of the concession apparently implementing the practice to which Mr Beer has referred. Neither had the experienced presenting officer appearing before the President in HM
22. Mr Beer submits that the point is academic and could conveniently, with a view to saving costs and the time of the court, have been resolved on the consent order supported by the reasons given. Reference has been made to the decision of the House of Lords in R v SSHD ex parte Salem [1999] 1 AC 450, at 457, per Lord Slynn of Hadley:

"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".

23. This is was a case where a point of statutory construction arises and in my judgment it was plainly appropriate that the court should proceed to give a reasoned judgment. I accept the submission of Mr Malik that to allow the case to have been decided, against the wishes of those appearing for the appellant, by way of the proposed consent order and reasons would be to perpetuate the error of approach rightly condemned by Senior Immigration Judge Storey in this case. It is for the judiciary to construe the effect of statutes and of immigration rules issued by the Secretary of State. Decisions of judicial tribunals should be declared in judgments and not, in circumstances such as the present, inferred without argument from statements of reasons agreed by the Secretary of State.
24. This was not a case which turned on particular facts. It was a case involving a point of statutory construction of very general application. It is common knowledge that large numbers of student visas are issued and, in my judgment, it was appropriate that the point should be dealt with by a decision of this court, having heard the helpful submissions of counsel which in the event we have heard. The decision can be circulated to Immigration Judges in the First Tier, who make the bulk of decisions in these cases. Accordingly I reject the submission of Mr Beer on this issue.
25. For reasons given earlier I would allow this appeal.

Lord Justice Longmore :

26. I agree

Lord Justice Etherton:

27. I also agree.

Order: Appeal allowed