Supreme Court

Regina (Iqbal) v Secretary of State for the Home Department

[2016] UKSC 63; [2016] WLR (D) 664

2016 Dec 14

Baroness Hale of Richmond DPSC, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Hodge JJSC

Immigration — Limited leave to remain — Application to vary leave — Claimants applying to vary leave to remain before expiry of such leave — Statutory provision automatically extending leave pending decision on “application” to vary leave made before expiry — Claimants’ applications declared invalid due to failure to comply with rules as to fees or provision of biometric information — Further applications made after expiry of original leave period — Whether statutory provision operating in respect of first applications so as to extend leave period — Whether leave extended until subsequent applications determined — Immigration Act 1971 (c 77), s 3C (as substituted by Nationality, Immigration and Asylum Act 2002 (c 41), s 118 and amended by Immigration, Asylum and Nationality Act 2006 (c 13), s 11(4)) — Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048), regs 3, 23 — Immigration and Nationality (Fees) Regulations 2011 (SI 2011/1055), reg 37

Facts

The claimants, who were Pakistani nationals, applied to vary their periods of leave to remain in the United Kingdom. In each case the application was made before the expiry of the leave period but was procedurally defective. In the first case the claimant failed to pay the correct fee in accordance with regulation 37 of the Immigration and Nationality (Fees) Regulations 2011, since he was unaware that the fee had recently increased; in the second case the fee was not paid out from the bank the details of which had been provided, and in the third case the claimant failed to provide biometric information when asked to do so in accordance with regulation 3 of the Immigration (Biometric Registration) Regulations 2008. As a result, the Home Secretary notified the claimants that their applications were invalid. The claimants then reapplied for variation of leave after their original leave periods had expired. The Home Secretary considered the applications on the basis that, since their first applications had been invalid, the provisions of section 3C of the Immigration Act 1971, as substituted and amended, did not apply so as automatically to extend their existing leave to remain and that, therefore, since they no longer had leave to remain, different and less favourable policies applied to their second applications, which were rejected. The claimants sought judicial review but were refused permission to apply or to proceed by the Upper Tribunal or the High Court. The claimants appealed, contending that (i) section 3C of the 1971 Act still applied to an application which was not validly made in accordance with the rules and (ii) in the first case, the Home Secretary had acted unfairly by failing to notify the claimant that the required fee had recently been increased so that he could submit the correct fee before the expiration of his leave. The Court of Appeal dismissed the appeals.

Held

On the claimants’ appeals—

Held, appeals dismissed. (1) Regulation 37 of the 2011 Regulations provided in terms that if an application were not accompanied by the specified fee it was not validly made and, in ordinary language, an application which was not validly made could have no substantive effect. Nothing in regulation 37 excluded section 3C of the 1971 Act from its scope nor was there anything in the history of the relevant provisions to support a different approach. Whilst it was unfortunate that the claimant in the first case had been caught out by a recent change in the level of fees, there was no suggestion that there had been any failure by the Home Secretary to publicise the change and no challenge to the finding of the Upper Tribunal that the Home Secretary had responded with reasonable promptness to the claimant’s first application. Accordingly, the Court of Appeal had been right to dismiss the appeals in the first two cases (paras 33–35, 38).

R v Secretary of State for the Home Department, Ex p Immigration Law Practitioners Association [1997] Imm AR 189 and Basnet v Secretary of State for the Home Department [2012] Imm AR 673, IAC considered.

(2) Since the requirement to provide biometric information under the 2008 Regulations only arose on receipt of a notice from the Home Secretary, it was difficult to see why any failure at that stage should be treated as retrospectively invalidating an application for leave to remain from the outset, so as to nullify the previous extension under section 3C of the 1971 Act of an applicant’s leave to remain. The natural reading of regulation 23 of the Regulations, which was consistent with the statutory purpose, was to give power to the Home Secretary to invalidate the application as from the time of the Home Secretary’s decision. However, even if the leave of the claimant in the third case were treated as continuing until the date of the Home Secretary’s decision on the first application, it would not assist the claimant in respect of her second application, which had been made at a later date. Accordingly, the Court of Appeal had been right to dismiss the appeal in the third case (paras 36–38).

Per curiam. It is disturbing that the Home Secretary has been unable to maintain a consistent view of the meaning of the relevant rules and regulations. The public, and particularly those directly affected by immigration control, are entitled to expect the legislative scheme to be underpinned by a coherent view of its meaning and the policy behind it. There is an overwhelming need for rationalisation and simplification of this area of law (para 30).

Decision of the Court of Appeal [2015] EWCA Civ 838; [2016] 1 WLR 582 affirmed.

Appearances

Zane Malik with Niaz Shah (instructed by Mayfair Solicitors) for the claimants in the first and third cases and with Atif Wattoo (instructed by AWS Solicitors) for the claimant in the second case.

Robin Tam QC and Samantha Broadfoot (instructed by Treasury Solicitor) for the Home Secretary.

Reporteed by: Jill Sutherland, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.