England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 January 2014

HH Judge Anthony Thornton QC:

Introduction

1. This judgment is concerned with the claimant, Mr Chowdhury's, renewed application for permission to apply for judicial review. His claim was issued on 15 January 2013 and in it he seeks to challenge a decision of the defendant ("SSHD") dated 29 September 2012 which stated that an application he had made dated 5 April 2012 was void and invalid.
2. Permission was refused by Judge Vosper QC on 19 June 2013 who directed that the application was considered to be totally without merit. The claim involves a consideration of section 3C of the Immigration Act 1971 ("section 3C") and its operation when the applicant makes a further application to vary an existing leave to remain before his first application has been finally decided. Mr Chowdhury's claim for judicial review relates to his purported attempt to vary his first application and the decision of the SSHD to consider that attempt on the grounds that it was an application for variation of his leave to remain that he was prohibited from making by the terms of section 3C. Although the issue raised by this application is, on analysis, a short and relatively simple one to resolve, it is first necessary to consider the factual background in a little detail.
3. Mr Chowdhury is now aged 27 and is an international student from Bangladesh. He has been studying in the United Kingdom since February 2006 in order to qualify as a Chartered Accountant. He originally obtained leave to remain as a student in February 2006 and April 2009 and as a Tier 4 (General) student in February 2010 until 21 June 2011. By the beginning of June 2011, he had successfully obtained the ACCA Fundamentals Level qualification and was nearing the end of a BA course in Applied Accountancy at Oxford Brookes University.
4. In order to complete his professional training, he wanted to spend further time in the UK as a Tier 1 (Post Study Work) Migrant and he submitted an application to vary his then current limited leave to remain as a student on 20 June 2011, the day before the expiry of his then current leave to remain as a student. An application for this points-based category had to be based on a recognised BA or equivalent qualification. Unfortunately, the most advanced qualification he had by then obtained was his ACCA Fundamental Levels qualification but this was not recognised by the Immigration Rules as being sufficient to obtain any of the necessary required points for a recognised graduate qualification.
5. Mr Chowdhury's application was refused on 15 July 2011 by the UKBA. He appealed to the First-tier Tribunal by lodging an in-time notice of appeal on 28 July 2011. His appeal was dismissed on 9 September 2011. The basis of both his original application and his appeal was that the ACCA Fundamental Levels qualification was, if the relevant provisions of the Immigration Rules were properly construed, a graduate qualification entitling him to the required points attributable to a recognised graduate qualification. He contended that the UKBA's construction of the relevant provisions of the Immigration Rules to the effect that he was not eligible for the relevant points was erroneous in law. His argument did not succeed with either the UKBA or the First-tier Tribunal but it had sufficient merit that he was granted permission to appeal to the Upper Tribunal.
6. Mr Chowdhury's appeal was heard in the Upper Tribunal on 3 February 2012 and the decision and reasons were reserved. Three critical dates then occurred in quick succession. These were:

(1) On 28 March 2012, Mr Chowdhury was awarded a BA in Applied Accounting by Oxford Brookes University.

(2) On 5 April 2012, he submitted an application to the SSHD for Tier 1 leave to remain relying on that BA graduate qualification.

(3) On 6 April 2012, the points-based rules changed in that the Tier 1 (Post Study Work) Migrant category was withdrawn with effect from that date so that only those who had submitted a valid application for that category prior to that date were thereafter able to apply for limited leave to remain as in that category.

(4) On 24 May 2012, the Upper Tribunal promulgated its decision dismissing Mr Chowdhury's appeal.

7. Mr Chowdhury then waited for what he assumed would be a further decision from the SSHD in relation to his application dated 5 April 2012 which, at that stage, he regarded as a valid fresh application which still remained for determination. However, the SSHD issued a decision dated 29 September 2012 whose effect was to declare that the 5 April 2012 application was void. The letter also informed Mr Chowdhury that his application fee would be refunded since the application was prohibited by section 3C and should not have been accepted as an application when it was first received.
8. Mr Chowdhury sought a reconsideration of this decision which was refused, both emails being dated 30 October 2012. Mr Chowdhury issued this claim on 15 January 2013, 16 days outside the long-stop period of 3 months within which a claim may be brought. The claim was based on his contention that, following the dismissal decision of the Upper Tribunal, his application dated 5 April 2012 remained for consideration and the SSHD had erred in law in determining that it was void.
9. Judge Vosper refused permission on the two-fold basis that the claim was filed out of time and that the application dated 5 April 2012 was void since it was prohibited by the terms of section 3C(4) as being an application for a variation of an existing leave to remain which had been made whilst his appeal from the SSHD's decision was still pending.
10. Mr Chowdhury, having applied to renew his application for permission, sought and obtained permission from Mr George QC to amend the basis of his challenge to the SSHD's decision of 29 September 2012. His amended basis of challenge is made on the basis that the application dated 5 April 2012 was not a fresh application to vary his leave to remain but was instead a variation of the original application dated 21 June 2011. He contends that the effect of his service of that variation on the SSHD was to return the application in its varied form to be determined by the SSHD with the decisions of the SSHD, the FtT and the UT having no continuing effect. Thus, his varied application has yet to be decided by the SSHD so that the SSHD wrongly refused to determine it in its decision dated 29 September 2013.
11. For good measure, Mr Chowdhury raises 3 further grounds based on the alleged waiver by the SSHD of the requirements of section 3C(4) in accepting the application dated 5 April 2012 should be treated as a valid application, on the alleged unfairness of the SSHD's decision and on its inconsistency with other similar decisions. The SSHD contends that these three further grounds of challenge were not encompassed by Mr George QC's order granting Mr Chowdhury permission to amend the claim form.

Brief overview of the applicable statutory provisions

12. This application involves a consideration of the statutory provisions concerned with an application to vary a limited leave to remain, an attempt to vary that application after it has been submitted, the extension of an existing limited leave to remain whilst the application is still extant and the application of section 3C to an applicant's subsequent appeal and further appeal to the FtT and the UT.
13. The holder of an unexpired limited leave to remain may apply to vary an extant limited leave to remain. That application has the effect of automatically extending the current leave until the application has been finally determined (section 3C(2)). However, section 3C prohibited an applicant from submitting an application (i.e. a "fresh" application) for variation of his leave to remain whilst that leave remained extended (i.e. in this case whilst Mr Chowdhury's appeal from the SSHD's decision remained pending). By contrast, section 3C(5) permitted Mr Chowdhury to vary the terms of his existing application to vary leave to remain. Mr Chowdhury now contends that that is what he did but, if that is correct, he was seeking to vary his existing application on 5 April 2012 after the hearing decision of the UT had been reserved.
14. Therefore, the following questions now arise:

(1) Whether an extension of time should be granted;

(2) Whether the grounds now relied on were covered by the grant of permission to amend;

(3) Whether the document submitted to the SSHD on 5 April 2012 a variation of the original application or was it an impermissible fresh application to vary Mr Chowdhury's limited leave to remain;

(4) Whether it could take effect as a variation since it had not been sent to the UT;

(5) Whether it was an impermissible attempt to vary or amend Mr Chowdhury's grounds of appeal;

(6) Whether it was too late to vary the original application since the UT hearing had been concluded before the variation had been made; and

(7) Whether, even if it was permissible to vary the original application, it is now too late to obtain relief since the UT's decision dismissing Mr Chowdhury's appeal has now been promulgated and it has finally determined Mr Chowdhury's application to vary his leave to remain unless it is reviewed or set aside.

The basic statutory framework

15. Mr Chowdhury, in his application dated 15 July 2011, applied to vary his existing leave to remain as a Tier 4 (Student) until 21 June 2011. He sought leave to remain as a Tier 1 (Post Study Work) Migrant. That application was subject to section 3C which provided that:

"3C. Continuation of leave pending variation decision

(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 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).

...

(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)."

An appeal is pending within the meaning of s 104 of the 2002 Act during with the period beginning with when it was instituted and:

"104 …

(1)(b) ending when it is finally determined, withdrawn or abandoned … ."

An appeal, which is the subject of a substantive appeal to the Upper Tribunal as this was, is finally determined when its final decision has been provided to the parties as provided for in paragraph 40 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as follows:

"Decisions

40. …

"(2) the Upper Tribunal must provide to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings-

(a) a decision notice stating the Upper Tribunal's decision; and

(b) notification of any rights of review or appeal against the decision and the time and manner in which such rights of review or appeal may be exercised."

(1) Whether time be extended

16. Time should be extended until 16 January 2012, the period of delay is short, the delay was evidently caused by Mr Chowdhury's previous solicitors and no prejudice has occurred. The case should be decided on its merits.

(2) Whether the amended grounds are covered by the permission to amend order

17. The amendments are sufficiently closely covered by the permission that was granted that they may be pursued in this application

(3) Whether the 5 April 2012 document varying the existing application

18. Mr Chowdhury submitted a document to the UKBA on 5 April 2012 that he described in both his subsequent letter to the UKBA dated 8 October 2012 and in his originally issued claim form as a "fresh application for leave to remain". The UKBA decision that is now challenged was dated 29 September 2012. It was a decision issued in answer to what it described as Mr Chowdhury's application dated 5 April 2012. The decision accepted that Mr Chowdhury's application was a fresh application to vary his leave to remain but decided that that application was one that could not be made and was no more than an attempted application because an application to vary leave to remain was prevented by section 3C(4) whilst, as was the case here, an appeal was outstanding against the refusal of a previous application to vary leave to remain.
19. In refusing permission to apply for judicial review, Judge Vosper QC observed that the SSHD's decision dated 29 September 2012 that this document was incapable of being a fresh application for leave to remain as a result of section 3C(4) was correct. Mr Chowdhury now seeks to base his judicial review challenge to the SSHD's 29 September 2012 decision on the contention that the 5 April 2012 document was not a fresh application but, instead, was a variation of his original application and not a fresh application to vary the existing leave to remain.
20. Regrettably, the parties did not include a copy of the 5 April 2012 document with the papers lodged for the hearing of the renewal hearing but I infer that Mr Chowdhury had used the same standard application form for limited leave to remain that he had used for the original application but filled out with the details of his BA qualification rather than the ACCA qualification he had previously relied on. The amended grounds of claim contend, in reliance on the judgment of the Court of Appeal in JH [2009] EWCA Civ 78, that the document was, in substance, a variation of the original variation application although it had the appearance of an application of the original leave to remain and was described as such by Mr Chowdhury. Thus, it was should be given effect to as a variation of that original application.
21. This submission is based on this passage in the judgment of Richards LJ in that case which was also a section 3C case:

"35. … 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) [of section 3C] 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."^[1]

22. Although not relied on by Mr Biggs, counsel acting on behalf of Mr Chowdhury, the following further passage that occurs earlier in Richards LJ's judgment is also relevant:

"22. … . The nature of the application made by JH [the claimant in that case] depends on what she actually applied for, and there can be no doubt that she applied for indefinite leave to remain as a spouse. That was the SIJ's finding, in the first sentence of para 5 of his decision, and it was plainly correct. The application was in the form prescribed for the purpose of an application for indefinite leave and it contained a declaration, signed by JH herself, that "I hereby apply for indefinite leave to remain in the UK …". It is true that she was applying for something for which she could not possibly qualify and that her application was doomed to failure. But it does not follow that she intended to make a different application, for limited leave to remain: the more plausible explanation is that those advising her made a mistake about what application she should be making. In any event, whatever her intention may have been, the plain fact is that she made an application on the prescribed form for indefinite leave to remain."¹

23. The 5 April 2012 document was described by Mr Chowdhury as an application to vary his leave to remain and in the claim form and was treated as such by the SSHD. However, the substance of the application was one that sought to vary the previous points-based application that had been submitted in June 2011 by replacing the details of the Qualification put forward in Appendix A: Attributes from the ACCA Fundamentals Level qualification to a BA in Applied Accountancy from Oxford Brookes University. That change has all the characteristics of a variation of an existing application and does not on the face of it appear to be a fresh application to vary leave to remain. In other words, the application, was seeking to replace one claimed qualification for another claimed qualification and to leave the rest of the application intact so that it was, by its nature, seeking to vary an existing application to vary rather than making a fresh application to vary.
24. This conclusion is supported by this consideration. It is clear that had the document contained a fresh application to vary the original leave to remain, it would have been invalid and prohibited by section 3C(4). Whatever Mr Chowdhury was applying for, it was not something which could not lawfully be the subject of an application at all. Thus, in substance, it was to be taken as an attempt to vary the existing application since the entirety of the contents of the document, save for formal template wording, were the same whether the document was a variation of a current application or a fresh application.

(4) Should the document have been submitted to the SSHD or to the Upper Tribunal?

25. Section 3C(5) provides that section 3C(4) "does not prevent an application for variation of the application for variation of leave". Thus, what is permitted does not have to be an application to vary, a unilateral act of varying the application is permitted. However, there is no definition of what constitutes an effective variation of the application. In particular, once the SSHD has made a decision, can the original application be varied whilst an appeal against that decision is pending and, if it can, should the variation document be notified to the appeal tribunal that is to hear the appeal or to the SSHD that has already disposed of it?
26. It would be surprising if the application could not be varied following a decision of the SSHD even though an applicant's leave to remain continues to be extended since, if that was the case, the applicant would have lost the right to vary the application pending the hearing of the appeal but would regain it if the appeal was successful. Moreover, the wording of subsection (5) that states that the variation of the application is not prevented by the extension of leave under subsection (2) suggests that whenever leave is extended under subsection (2), a variation of the original application is permitted. However, if that variation takes place in the period after an SSHD decision has been issued but before the appeal against that decision has been determined, the terms of the variation may only be considered and applied by the FtT, or in a second appeal by the UT, if such is permitted by the appropriate tribunal, if necessary following a successful application for permission to amend or to rely on the variation.
27. However, that conclusion does not identify what constitutes a variation. Supposing the variation had been written out in a document which was clearly one prepared by the applicant but from oversight the document was never issued or posted to anyone and remained in a drawer in the applicant's desk and no mention was made of the variation until it was too late to affect the decision. It would be strange if, nonetheless, the original application had been varied by that unpublished document. In this case, the SSHD had, in issuing a decision rejecting and dismissing Mr Chowdhury's application, concluded its involvement in that application and had no further entitlement to change, alter or withdraw the decision albeit that it could consider a further application which applied to vary the decision just taken. It follows that, for the document to be treated as a variation of the original application, its contents must be made known to the decision-maker directly affected by the variation. Mr Chowdhury informed the UKBA in his letter dated 8 October 2012 that "I made a fresh application to the UKBA on 5 April 2012 and since that day I received nothing in regards to the application." That shows that he intended the document to be acted upon by the UKBA and that its contents were not a variation for the purposes of section 3C since the only body then able to give effect to the variation, namely the Upper Tribunal, neither saw the document nor was intended to see the document.
28. I conclude that the document dated 5 April 2012 did not vary the original application.

(5) Whether it was an impermissible attempt to vary or amend Mr Chowdhury's grounds of appeal

29. I will consider this issue since it is possible that the document was to be taken to be a variation of the application. If it was, what was the effect of it not being drawn to the attention of the UT? This question gives rise to a consideration of the powers of the UT in dealing with the appeal, namely whether permission to amend the grounds of appeal were needed, and whether it was too late to apply to amend since the hearing had already been closed when the variation document was issued.
30. Powers of the UT. The Upper Tribunal, hearing as it was a second appeal, could only address questions of law arising out of the FtT's decision. The question of law it addressed was whether the FtT was correct in its construction of the relevant Immigration Rules in determining that the ACCA qualification was not a points-earning qualification. That issue had to be determined by reference to that particular qualification since that was the factual basis on which both the SSHD and the FtT had decided the issue. Mr Chowdhury was seeking in the variation he had put forward to change that factual basis and the question thereby arising was whether either the FtT or the UT had the power to permit the appeal to be argued by reference to that different factual basis.
31. That question involved a consideration of the powers of the FtT – and hence the UT – in hearing an immigration appeal, which is what Mr Chowdhury's application was (section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 ("NIAA")). In particular, it would have had to be considered whether the UT was permitted to receive evidence that had not been considered by the SSHD in dealing with and deciding the application in the first place. The relevant statutory provisions are:

The NIAA provided that:

"84 Grounds of appeal

(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds-

…

(e) that the decision is otherwise not in accordance with the law; …

85 Matters to be considered

(4) On an appeal under section 82(1) [of the NIAA] against a decision the Tribunal may consider evidence about any matter which [it] thinks relevant to the substance of the decision including evidence which concerns a matter arising after the date of the decision.

(5) But subsection (4) is subject to the exception in section 85A.

"85A Matters to be considered: new evidence: exceptions

(3) Exception 2 applies to an appeal under section 82(1) if-

(a) the appeal is against an immigration decision of a kind specified in section … 82(2)(d),

(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a "Points Based System", and

(c) the appeal relies wholly or partly on grounds specified in section 84(1) …(e) …

(5) Where Exception 2 applies the Tribunal may consider evidence adduced by the applicant only if it-

(a) was submitted in support of, and at the time of making, the application to which the immigration decision related,

(b) relates to the appeal in so far as I relies on grounds other than those specified in subsection (3)(c),

(c) is adduced to prove that a document is genuine or valid, or

(d) is adduced in connection with the Secretary of State's reliance on a discretion under immigration rules, to refuse an application on grounds not related to the acquisition of "points" under the "Points Based System"."

32. These provisions would have been applicable to this case because:

(1) The variation involved the introduction of evidence which had arisen after the date of the decision and had not been submitted in support of, and at the time of making, the application to which the immigration decision related;

(2) the appeal was against an immigration decision of a kind specified in section … 82(2)(d) (i.e. an appeal against a refusal to vary a person's leave to remain where the result of the refusal was that Mr Chowdhury had no leave to remain;

(3) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a "Points Based System";

(4) the appeal relies wholly or partly on grounds specified in section 84(1) …(e) … (i.e. the decision was not in accordance with the law)

33. Thus, the UT could not, even if minded to do so, have granted permission to Mr Chowdhury to amend his grounds of appeal and adduce the new evidence since it was precluded from hearing it at all.

(6) Whether it was too late to give effect to the variation in any event

34. It was not too late for Mr Chowdhury to apply to amend his grounds of appeal even though the hearing had been concluded. Until the decision was promulgated, the UT retained its powers of case management. Rules 4 and 17 of The Tribunal Procedure (Upper Tribunal) Rules 2008 provided that:

"4. Case management powers

(1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.

(2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may—

…

(c) permit or require a party to amend a document; …

17. Withdrawal

(1) Subject to paragraph (4), a party may give notice of the withdrawal of their appeal or application —

(a) by providing to the Tribunal a written notice of withdrawal; or

(b) orally at a hearing.

(2) Notice of withdrawal will not take effect unless the Upper Tribunal consents to the withdrawal except in relation to an application for permission to appeal."

35. Thus, a written application to amend or withdraw could have been made even though the hearing had been closed. It was, of course, very unlikely that such an application would have been granted even if the evidence was admissible but it had jurisdiction to hear the application had it been made.
36. However, the UT has now dismissed Mr Chowdhury's appeal and there has been no application to appeal or to vary this decision. As soon as the decision became appeal-rights exhausted, Mr Chowdhury ceased to have leave to remain and the decision became final and binding even if it had been based on an error of law. There would therefore have been no practical purpose in granting Mr Chowdhury judicial review of the SSHD's September 2012 decision since the application had been conclusively determined and was no longer susceptible to being varied. This can be seen from paragraph 35 of Richard LJ's judgment in JH set out in paragraph 21 above, the critical extract from which reads:

"But once a decision has been made, no variation to the application is possible since there is nothing left to vary."

Other matters

37. Mr Biggs contended that the effect of the variation was that the UT appeal was withdrawn and the varied application was left for further consideration. However, although Mr Chowdhury could have varied his original application in the period between the SSHD's initial decision and the conclusion of the appeal process, the variation could not have been considered by the UT hearing his appeal unless and until it had granted permission for the grounds of appeal to have been amended to introduce the variation into the appeal (see paragraph 26 above). In this case, the variation could not have been considered by the appeal tribunal because that consideration was prohibited by law (see paragraphs 30 – 32 above). Thus, in this case, involving the award of points under a points-based system, the tribunal would have refused consent for the variation to be considered and the appeal would have proceeded to consider the unvaried application.
38. It seems unlikely that that a variation would have led to the appeal being withdrawn even if it was one that the UT had been permitted to consider since the UT is required, under paragraph 17 of The Tribunal Procedure (Upper Tribunal) Rules 2008, to consent to an appeal being withdrawn (see paragraph 34 above). Thus, a withdrawal could not have taken place without the UT's consent which it would have been unlikely to have granted. Moreover, even if it granted consent to a withdrawal of the appeal, the original FtT and SSHD decisions would have remained intact. The upshot in such a case would have been that Mr Choudhury could not have obtained a decision on his varied application and could not have served a fresh application because he would have become an unlawful overstayer the moment his UT appeal was withdrawn.
39. There is no basis for the waiver, estoppel, unfairness or inconsistency grounds and they are all dismissed.

Conclusion

40. Mr Chowdhury's application for permission is dismissed. The costs order of Judge Vosper QC dated 19 June 2013, requiring the claimant to pay the defendant £320 is reinstated. Such costs are to be paid within 21 days of the service of this order.

HH Judge Anthony Thornton QC

Note 1    Bold added to emphasis the passage.    [Back]