IN THE UPPER TRIBUNAL
R (on the application of Ahmed) v Secretary of State for the Home Department (3C leave - whether "granted")  UKUT 489 (IAC)
F ield House
Heard on: 30 October 2017
THE QUEEN (on the application of)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
UPPER TRIBUNAL JUDGE SOUTHERN
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For the Applicant: Mr R. Pennington-Benton, instructed by Connaughts Solicitors
For the Respondent: Mr Z. Malik, instructed by the Government Legal Department
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APPLICATION FOR JUDICIAL REVIEW
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Where a person who is present with leave as a Tier 4 student makes an application for further leave in the same capacity during the currency of that leave, his leave, although extended by statutory effect of s3C, is an extension of that same leave and so it continues to be leave granted to him as a Tier 4 Student. Therefore, for the purposes of paragraph 245ZX(ha) of the Immigration Rules, any period during which leave to remain is extended by operation of s3C does count towards the five-year limit for grant of leave for study at or above degree level.
"If the course is at degree level or above, the grant of leave to remain the applicant is seeking must not lead to the applicant having been granted more than 5 years in the UK as a Tier 4 (General) Migrant, or as a student, to study at degree level or above unless:
Thus, the total period he had been present in the United Kingdom on the basis of being a Tier 4 student was 63 months, if the period of 3C leave is included as leave as a Tier 4 Student. Had the period of further leave he sought for the purpose of the course at Global Banking School been granted, that would have amounted to 75 months, plainly more than the maximum period allowed for study at or above degree level of 5 years. Put another way, as did Mr Malik in his submissions, even if one included the period during which the applicant held leave extended by s3C only that part of it that he was actually studying at University of Sunderland, that being 10 months, he would still have spent more than 5 years in the United Kingdom as a Tier 4 Student, studying courses at degree level or above.
Calculating periods of leave counting towards time limits
106. To calculate the maximum amount of time that you have spent studying at a specified level, we will consider how much leave you have already received to study courses as a Tier 4 (General) migrant or a Student, and add the length of leave that you will receive if your current application is granted.
109. We will also count any previous periods of leave you have held under Tier 4 (General) and /or the Student route, where you have subsequently left the UK. This period will be counted from the date the leave began until the date it expired. If you extend your Tier 4 / Student leave, or received an period of continuing leave in accordance with section 3c of the Immigration Act 1971, this will be included. If your leave was curtailed, we will take the date the curtailed leave expired.
Applying this policy guidance, the position before the respondent was clear. The period of 3C leave was to count for the purposes of 245ZX(ha) which meant, as a matter of simple arithmetic, the application was one that could not succeed. The respondent considered representations made in the application for Administrative review founded upon R (Alvi) v SSHD  UKSC 33, but said only that:
"However, the policy guidance we use is published and approved by the Home Office, we do not believe this case law is relevant to your substantiate ( sic) your claims nor do we believe that the policy guidance has been misapplied in your case."
"For the avoidance of doubt, the calculation of whether the applicant has exceeded the time limit will be based on what was previously granted by way of period of leave and level of course rather than (if different) periods and courses actually studied."
Although it seems clear that the purpose of this provision is simply to make clear that the focus is upon the leave granted and not whether the applicant used that period of leave to pursue studies, Mr Pennington Benton submits that the focus is upon the leave previously granted by the SSHD and not the length of any statutory extension of it. He submits that the rule-maker could have focussed on periods of actual study in the United Kingdom rather than the periods of leave granted for the purpose of study, but chose not to. He argues that the intention was a bright line rule, focussed upon periods of leave granted for study rather than periods of actual study which has the advantage of clarity and simplicity.
"... fall one side or the other of the 5-year rule, by dint of no more than chance occurrences resulting in them spending more or less periods of time on 3C leave (applications in some cases, but not others, being wrongly refused, differing waiting times for initial decisions...) It is difficult to understand why the rule maker would have intended for this differential and often arbitrary treatment. Much more likely that the rule-maker thought it best (most clear, coherent and outcome-consistent) to simply rely on periods of LTR actually granted..."
Pointing to the observation in R (Syed) v SSHD  EWCA Civ 1059 that the immigration rules "... are to be construed and applied according to their natural and ordinary meaning", Mr Pennington-Benton submits that:
"There can be little doubt that, in ordinary parlance, leave "granted" to an applicant connotes a defined period of leave specifically granted to an individual, for a defined purpose."
"a) the Secretary of State misconstrued Paragraph 245ZX(ha) of the Immigration Rules in holding that the time spent on leave extended under section 3C of the Immigration Act 1971 ("the 1971 Act") counts towards that the specified five years' period; and
b) the Secretary of State acted unfairly in refusing the Applicant's application."
"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."
The Upper Tribunal had dismissed QI's appeal against refusal to grant further leave as a Tier 4 Student, holding that leave extended under s3C does not count for these purposes so that if the applicant's initial grant of leave had ended more than a month before the new course was to commence, then even though his leave had been extended by s3C he could not meet the requirements of paragraph 245ZX(l). The Court of Appeal held that construction to be incorrect and wrong in law. At paragraph 14 per Pill LJ:
"... 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."
And at paragraph 15, speaking of the effect of s3C:
"...The section expressly provides that leave is extended while consideration of the application for variation is pending."
"... a statutory extension of the same leave that existed before it was made."
"... depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy".
In this context, it is of particular relevance to have regard to the provisions of paragraph 245ZY of the rules, the purpose of which is plainly and specifically to accommodate the position where a student seeks to undertake studies before the outcome of his application for further leave has been determined or his appeal against refusal has been determined. So far as is relevant, paragraph 245ZY provides, with emphasis added:
245ZY. Period and conditions of grant
(iv) no study except:
(1) study at the institution that the Confirmation of Acceptance for studies Checking Service records as the migrant's Sponsor...
(2) until such time as a decision is received from the Home Office on an application which is supported by a Confirmation of Acceptance for Studies assigned by a Highly Trusted Sponsor and which is made while the applicant has extant leave, and any appeal or administrative review against that decision has been determined, study at the Highly Trusted Sponsor institution which the Confirmation of Acceptance for Studies Checking Service records as having assigned a Confirmation of Acceptance for Studies to the Tier 4 migrant;
As Mr Malik pithily observed in oral submissions, it makes no sense to specifically allow for study in such circumstances and then to ignore it when calculating periods of leave granted for the purpose of study.