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Court of Appeal rejects section 3C leave argument in 10 years’ continuous lawful residence claim

Written by
Asad Ali Khan
Date of Publication:
25 July 2022

Marepally v Secretary of State for the Home Department [2022] EWCA Civ 855 (24 June 2022)

In this appeal involving indefinite leave to remain (ILR) on the basis of 10 years' continuous lawful residence and notices, the Court of Appeal held that Mr Marepally whose application for leave to remain had been rejected by a deficient notice, which failed to inform him of his right to appeal, could not rely on section 3C(2)(a) of the Immigration Act 1971 in order to extend his overall period of leave so that he accrued 10 years' continuous lawful residence. Moreover, the failure to inform him of his right to appeal had caused no injustice as his appeal would have failed in any event. Mr Marepally had a complex immigration history and appealed against the decision that he was not entitled to indefinite leave to remain in the UK. He had entered the UK in February 2009 with entry clearance until 30 April 2014 as a Tier 4 student. Mr Marepally's leave to remain as a student was curtailed in January 2014, and his application for further leave to remain was rejected. On 29 April 2014 he applied again (unsuccessfully) for leave to remain as a student. His appeal was eventually allowed on 6 May 2016 after which he varied his April 2014 application (on 25 January 2017) by applying for leave to remain as a Tier 5 worker. That application was refused on 29 March 2017, but the notice was deficient and it did not inform him of his right to appeal.

He said that his April 2014/ January 2017 application had therefore not been determined because the notice served failed to comply with the requirements of regulation 5 of the Immigration (Notices) Regulations 2003, meaning that section 3C(2)(a) of the 1971 Act operated to extend his leave to remain until a compliant notice was served on him and he then subsequently applied in February 2019 for ILR in the UK on the basis of 10 years' continuous lawful residence, part of which had consisted of the alleged extension of leave under section 3C(2)(a). As to notice requirements, the court held that one of the functions of the notice served by the SSHD was to give an applicant information about his right to appeal against a particular decision. Further, the SSHD could rectify the error by sending a corrected notice and the time to appeal would then begin to run from the time that the corrected notice was sent to the applicant. Failing that, a court dealing with a claim for judicial review would usually quash the notice if that was necessary in order to enable the applicant to have an effective appeal. A court might, however, find that the notice was not invalid, or might decline as a matter of discretion to quash the notice, for instance, if the applicant had in fact been made aware of the right of appeal; if doing so would serve no practical purpose; or where no injustice had been suffered. In such circumstances, the original notice of decision remained in force and continued to have legal effect, and the time for appealing began when that notice was sent to the person concerned.

Lewis LJ followed E1 (OS) Russia v SSHD [2012] EWCA Civ 357 and held that:

47. … A court may decline to quash a notice of decision if granting such an order would, for example, serve no practical purpose or where no injustice has in fact been suffered.

As to whether the application for indefinite leave to remain should have been granted, the Court of Appeal applied R (Akinola) v SSHD [2021] EWCA Civ 1308 (paragraphs 40 and 41, Sir Stephen Richards with whom Phillips and Stuart-Smith LJJ agreed) and held that:

9. The purpose of section 3C of the 1971 Act is to protect the immigration status of those with existing leave to remain who have applied for a variation of that leave and who are awaiting a decision on the application or who are exercising appeal or review rights in respect of that decision. Continuing a person's existing leave during that period will prevent the person becoming an overstayer and being subject to the disadvantages faced by those who remain in the United Kingdom without leave. The purpose of the section is not to enable persons to be able to rely on continuations of leave for the purpose of building up 10 years' continuous lawful residence in order to claim indefinite leave under paragraph 276B of the Immigration Rules although the fact that section 3C extends periods of lawful residence may have an impact on that issue.

The real issue was whether any defect in the notice given in respect of the decision of 29 March 2017 refusing Tier 5 leave was material to Mr Marepally's current appeal against the decision of 6 June 2019 which had refused him ILR. The Court of Appeal held that:

51. First, the respondent did send the appellant a notice of her decision of 29 March 2017 on the application for Tier 5 (Temporary Worker) leave. That notice told the appellant that his application had been considered but refused. It set out the reasons for the decision. The notice (erroneously) informed the appellant that he had a right of review. It did not inform him that he had a right of appeal. In fact, no such appeal could have succeeded as the appellant simply failed to meet the requirements of the relevant paragraphs of the Immigration Rules. The appellant did seek judicial review of the decision refusing leave to remain, and the administrative review decision upholding that decision, but that claim was dismissed as it was inevitable that he would be refused Tier 5 leave to remain as he did not satisfy the relevant requirements of the Immigration Rules. No challenge was made in the judicial review claim to the notice of the decision (as opposed to the decision refusing leave to remain itself). But any claim to judicial review of the notice would also inevitably have been dismissed because the failure to inform the appellant of the right of appeal would not have caused any injustice or prejudice to the appellant as any appeal was bound to fail.

52. Secondly, in this case, the appellant is challenging the decision of 6 June 2019. The appellant put his case before the First-tier Tribunal on the basis that he had suffered "an historic injustice" because he was not informed of his right of appeal. The appellant has not, however, suffered any injustice. He is not now seeking to appeal the substantive decision refusing Tier 5 leave. He accepts that the refusal of Tier 5 leave was correct. He did, indeed, challenge that substantive decision by way of judicial review but the claim failed. The appellant is not seeking to rectify any injustice he suffered by not being given the opportunity of appealing against the refusal of Tier 5 leave. Rather, he is seeking to benefit from that the fact that he was not told about his right of appeal in 2017 as a means of trying to keep any previous leave to remain in existence in order to accumulate further periods of lawful residence so he could satisfy the requirement of 10 years' continuous lawful residence and qualify for indefinite leave to remain under paragraph 276B of the Immigration Rules. The fact that he is unable to do so does not amount to an injustice, historic or otherwise.

Lewis LJ thus found no purpose in remitting the appeal to the Upper Tribunal as it would have to dismiss the appeal in any event. The fundamental reality was that Mr Marepally did not have 10 years' continuous lawful residence on 21 February 2019 and did not meet the requirements for the grant of ILR under paragraph 276B of the Immigration Rules and any appeal against the refusal of ILR would have to be dismissed. Despite trying so hard, Mr Marepally failed in his long residence claim and was unable to fill in the gap by relying on his section 3C(2)(a) argument to get over the finish line and extend his leave to acquire 10 years' continuous lawful residence. It will be interesting to see whether he will take his case to the Supreme Court …