Section 3C of the Immigration Act 1971 can continue a person’s limited leave to remain if an application to vary that leave is made before it expires. In these three appeals the applications were made in time but were rejected as invalid: two because the fee had not been paid, and one because biometric information had not been provided. The Supreme Court dismissed all three appeals. A missing fee means the application is not validly made and does not extend leave; the biometric applicant’s later application was made only after her first application had already been rejected.
Section 3C applies where a person with limited leave applies to the Secretary of State to vary it before that leave expires, and the leave expires before the application is decided. The existing leave is then extended while the application remains neither decided nor withdrawn. The question was whether that protection is engaged by an in-time application that is procedurally defective.
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The three applicants
Mr Iqbal’s leave as a student ran until 30 April 2011. On 19 April 2011 he applied for further leave, but paid a fee that was £29 short because he had not known of a recent increase. The Secretary of State rejected the application as invalid. He later made a fresh application, but by then his original leave had expired. His college’s sponsor licence was subsequently revoked. Had section 3C continued his leave, he would have had 60 days to find another approved institution. That concession was unavailable, and the later application was refused. He had no right of appeal to the First-tier Tribunal because he did not have leave when the relevant application was made.
Mr Mirza applied to extend his student leave shortly before it expired on 31 March 2009. The Secretary of State tried unsuccessfully to collect the £295 fee from the bank details he had supplied and rejected the application for non-payment. A later application to remain as a Tier 1 (Post-Study Work) migrant was refused, including because he had not held the required leave during a specified period and because the application was made more than 12 months after his qualification.
Ms Ehsan applied on 23 December 2011, before her student leave expired on 28 December 2011. The requirement to provide biometric information arose only afterwards, when the Secretary of State asked her to book an appointment. She did not do so. On 26 March 2012 her application was returned as invalid. She made a new application on 3 April 2012 and did then provide biometrics, but her sponsor’s licence was later revoked. Her application was refused because the resulting confirmation of acceptance for studies attracted no points. Continued leave under section 3C would again have allowed her to use the 60-day concession.
How the argument developed
The parties’ positions changed as the cases progressed. In the Court of Appeal, the applicants argued that an application described as invalid could still trigger section 3C. The Secretary of State, departing from her earlier position, did not dispute that. She instead argued that her notice rejecting the application as invalid was itself a decision, so any extended leave ended under section 3C.
She advanced practical reasons for that approach. An applicant and the Home Office may not immediately know whether an application is valid. Someone who continues working in the belief that leave has been extended may in fact be working unlawfully. Validity requirements, including biometrics, may also arise after the application is submitted. At the same time, if a defective application extended leave and no valid decision could ever end it, the extension might become indefinite.
The Court of Appeal rejected both sides’ primary positions. Elias LJ, with whom the other members agreed, held that section 3C does not apply to an application that was not validly made. Powers in the Immigration, Asylum and Nationality Act 2006, allowing the Secretary of State to prescribe the consequences of procedural failure, supported that conclusion. A notice that there was no valid application was not a determination of the application for section 3C. The court also rejected a separate unfairness argument for Mr Iqbal.
Why a missing fee prevents the extension
By the Supreme Court hearing, the Secretary of State had returned to her earlier view that an invalid application does not engage section 3C. Lord Carnwath, with whom Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge agreed, found the Department’s changing interpretation troubling and agreed that the scheme needed rationalisation and simplification. He also considered that the policy concerns were real and that some flexibility for readily corrected mistakes would have been desirable. There was, however, no challenge to the legality or rationality of the relevant rules and regulations, so the appeals had to be decided on the legislation as it stood.
For the fee cases, the wording was unambiguous. The applicable fees regulations provided that an application which had to be accompanied by a specified fee was not validly made unless accompanied by that fee. Equivalent provision applied to Mr Mirza. Lord Carnwath held that, in ordinary language, an application which is not validly made can have no substantive effect. Nothing excluded section 3C from that consequence.
The applicants argued that “application” in section 3C simply meant a clear request to vary leave, as it had under earlier legislation, and that later fee rules should not narrow it. The court rejected that argument. The later statutory powers were given within the same legislative framework, and they contained no restriction preventing the Secretary of State from prescribing consequences that affected section 3C. Applying those powers was not the executive rewriting the primary legislation. The practical consequences of an invalid application had also been recognised in earlier case law and could be assumed to have been understood when the later legislation was drafted.
Biometric information arose later
Ms Ehsan’s case was different in an important respect, even though her counsel did not rely on a material distinction. The fee is due when the application is made, so there is no conceptual difficulty in treating an unpaid application as invalid from the outset. The biometric requirement arose only after the Secretary of State sent a notice, and a reasonable explanation for delay might still be accepted.
Lord Carnwath saw no reason why a later failure should retrospectively undo the application and any section 3C extension already running. The amended biometric regulation, in force by the March 2012 decision, empowered the Secretary of State to treat the application for leave as invalid. Its natural reading was that invalidity ran from the decision, not from the original application. Even on that reading, however, Ms Ehsan was not assisted: her leave would at most have continued until 26 March 2012, whereas her new application was made on 3 April 2012.
The unfairness argument
The court also agreed that Mr Iqbal’s procedure had not been unfair. Comments in an earlier Upper Tribunal case about the practical advantage of personal applications over postal applications did not create a universal duty to prioritise cases in which a missing fee might be fatal. The fee increase had been publicised, and there was no challenge to the finding that the Secretary of State had responded with reasonable promptness. The difficulty arose because the application was made so close to the expiry of leave that there was no time to correct it.
Verdict: The Court unanimously dismissed all three appeals. The fee defects prevented the applications of Mirza and Iqbal from extending leave. Ehsan’s later biometric default raised a different timing question, but her fresh application came after rejection and did not benefit from section 3C.
Source: R (Mirza, Iqbal and Ehsan) v Secretary of State for the Home Department [2016] UKSC 63
