R (Akinola & Anor) v Upper Tribunal & Anor  EWCA Civ 1308 (26 August 2021)
In these judicial review proceedings, the Court of Appeal decided that in circumstances where an extension of time had been granted for an out-of-time appeal against the refusal of an application to vary limited leave to remain, the original leave was revived under section 3C(2)(c) of the Immigration Act 1971 with future effect from the time when the appeal was instituted. The appeal was instituted and became a pending appeal within section 3C(2)(c) when the notice of appeal was filed, not the date when the extension of time was granted. The Court of Appeal found that the withdrawal of a decision did not have the consequence of causing leave to be extended retroactively under section 3C from the date of the decision. Three conjoined appeals, namely those of Ms Akinola, Mr Abbas and Mr Anwar, raised issues about the interpretation and effect of section 3C which provides for the extension of immigration leave in certain defined circumstances. Of key importance was the position under section 3C where an application has been made to vary existing leave, the application has been refused by a decision of the SSHD, and later (i) there is an out-of-time appeal for which an extension of time is granted, or (ii) the decision-maker withdraws and/or reconsiders the decision. The issues arose in the context of applications under paragraph 276B of the Immigration Rules for Indefinite Leave to Remain (ILR) on the ground of long residence.
Ms Akinola, Mr Abbas and Mr Anwar all entered the UK as students. Importantly, in each case the question whether leave was extended by the operation of section 3C was relevant to whether the applicant had built up the required "10 years continuous lawful residence in the United Kingdom". Each appellant had applied to vary their existing leave to ILR on the ground of long residence. Their applications had been refused and they had appealed. Under section 3C, where an application had been made for variation of existing leave before the leave expired and the leave expired without the variation application being decided the leave was extended under section 3C(2) during any period when the case was neither decided nor withdrawn; an in-country appeal could be brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 or an in-country appeal under section 82(1) was pending. It was common ground that an out-of-time appeal for which an extension of time had been granted engaged section 3C(2)(c) as a pending appeal and resulted in a revival of the original leave. The issues were threefold (i) whether a revival of leave under section 3C had retroactive effect so as to run continuously from the time when it otherwise would have expired, (ii) if an extension of time was granted, an appeal was pending when the extension of time was granted or when the notice of appeal had been filed, and (iii) whether the withdrawal of a decision was functionally equivalent to the quashing of a decision by the court and had the like/same result that an application for variation would not have been decided until a fresh decision was taken on the application and leave would continue to be extended under section 3C(2)(a) in the meantime.
Notably, the court's attention was drawn to the authority of Suthendran v Immigration Appeal Tribunal  AC 359, and the introduction of the Immigration (Variation of Leave) Order 1976 which aimed to protect the rights of an applicant who had submitted an application for an extension of leave to remain before the expiry of their existing leave but whose application could not be decided until after their existing leave had expired. That regime was replaced by the Immigration and Asylum Act 1999, section 3 of which inserted a new section 3C into the 1971 Act.
R (Topadar) v SSHD  EWCA Civ 1525, discussed here, the Court of Appeal (Males and Floyd LJJ agreeing with Lewis LJ) held that "it is clear that an application seeking to vary an existing leave is decided within the meaning of section 3C(2)(a) of the 1971 Act when the application is refused" by the SSHD and that an administrative review operates as a review of the refusal decision, not as an extension of the decision-making process.
Further, regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006 provides that for the purposes of section 3C an application for variation of leave is decided when notice of the decision has been given in accordance with regulations made under section 105 of the the 2002 Act; or where no such notice is required, when notice of the decision has been given in accordance with section 4(1) of the 1971 Act.
The court considered three guidance documents by the SSHD. Leave extended by section 3C (and leave extended by section 3D in transitional cases), version 10.0, published on 18 January 2021 (the section 3C guidance), setting out the SSHD's explanation of when leave is extended by section 3C and how section 3C leave comes to an end. Withdrawing decisions, version 3.0, published on 6 February 2020 (the withdrawals guidance), giving HOPOs advice as to when, in the context of tribunal appeals, it would be appropriate to withdraw a decision or concede a case that is being appealed. Reconsiderations, version 10.0, published on 30 July 2018 (the reconsiderations guidance), telling caseworkers what to do when an applicant believes a decision is incorrect and asks for it to be reconsidered.
The Court of Appeal
Phillips and Stuart-Smith LJJ and Sir Stephen Richards dismissed the appeals and the court addressed the issues of revival of leave to remain, pending appeal and withdrawal and reconsideration. It was common ground that the purpose of section 3C is to protect the immigration status of those with existing leave who have applied for a variation of that leave and are awaiting the SSHD's decision or are exercising appeal rights in respect of a decision. Without an extension of leave in such circumstances, an applicant would be in the UK unlawfully as an overstayer on the expiry of their original leave. Indeed, all the disadvantages to which overstayers are exposed were summarised by the Supreme Court in Pathan v SSHD  UKSC 41, discussed here, and as Lord Kerr said that there are two types of effect of becoming an overstayer: immediate and long-term. By knowingly overstaying, one automatically commits an offence under section 24(1)(b) of the 1971 Act and becomes liable to imprisonment for a term of up to six months or a fine. Overstaying also tips a person into the infamous "hostile environment". Lord Wilson was of the view that overstaying causes legal disabilities which immediately prevent the overstayer from continuing the pursuit of normal life in the UK as the said person also becomes liable to detention pending forcible removal, commits a criminal offence if he continued to work, ceases to be entitled to state benefits, becomes disqualified from renting accommodation, becomes subject to the freezing of funds in his bank account and the revocation of his driving licence, and becomes subject to a ban on later re-entry into the UK.
Section 3C also aims to avoid abuse of the protection it provides. Thus, in holding that an application made contrary to section 3C(4) did not operate to extend leave under section 3C(2), in R (Basir) v SSHD  EWCA Civ 2612 the court observed that the intended purpose of section 3C(4):
26. … is to prevent abuse of the system by the making of successive applications and to ensure that there is only one application to vary leave at any one time.
The facts of the present cases nonetheless illustrated the existence of a real potential for abuse in the form of successive variations of the original variation application itself, as permitted by section 3C(5).
(i) Revival of leave to remain
As to the revival of leave to remain, Sir Stephen Richards formulated the view that the language of section 3C was far from clear and there was a real linguistic tension within the section. He said that the language pointed towards continuity of leave throughout the various stages in section 3C, but where there was an appeal out of time, leading to a gap between the period covered by section 3C(2)(b) and the period covered by section 3C(2)(c), the language suggested that leave was revived only with future and not retroactive effect, a result which could not be reconciled with the idea of continuity suggested by an extension of the original leave. The SSHD submitted that it would be bizarre if on one and the same date the applicant will have been present in the UK unlawfully, by the effect of section 3C(2)(b), and lawfully, by the effect of section 3C(2)(c). She submitted that if Parliament had intended such a result one would expect clear words to that effect and the court explained:
55. That is a powerful argument. It is true that the retroactive reversal of a prevailing legal state of affairs can happen when a decision by the Secretary of State is subsequently quashed by the court on judicial review. If the decision carried no right of appeal and brought section 3C leave to an end, the immediate result of the decision will have been to make the applicant an overstayer and subject to the legal incidents of overstaying. All that, however, will be reversed upon the making of a quashing order: it will be as if the Secretary of State's decision had never been made and the applicant had had leave under section 3C(2)(a) throughout because the application for variation had not, after all, been decided. But I acknowledge that that is a very particular situation, in which the issue of a quashing order depends on the exercise of discretion by the court and the effect of the order is to cut the original decision out of the picture. It is very different from the position contended for by the applicants here, in which the statute automatically produces two contradictory states of affairs, by bringing section 3C leave to an end on the expiry of the period in section 3C(2)(b) but then conferring section 3C leave from the same point once an out-of-time appeal engages section 3C(2)(c).
Sir Stephen Richards held that reading section 3C(2)(c) as having retroactive effect would accord with the purpose of protecting the position of those who were exercising appeal rights in respect of a decision by the SSHD, in particular protection from the potentially serious consequences of being an overstayer. However, those purposive considerations were not strong enough to support an interpretation of retroactive effect without clear words and an out-of-time appeal engaging section 3C(2)(c) caused leave to revive only with future effect from when the appeal was instituted. Sir Stephen Richards held that:
56. … the language of section 3C is far from clear and there is on the contrary a real linguistic tension within the section. Purposive considerations favour the applicants' approach to the section but in my judgment they are not strong enough to carry the day. I feel driven reluctantly to the conclusion that the approach taken by the Secretary of State is the correct one, even though it results in a gap in the protection afforded by section 3C to applicants who appeal out of time, however good their reasons may be for the delay. This conclusion also produces an equivalence of approach between out-of-time appeals and withdrawals, considered below, in that in both situations it is possible for section 3C leave to lapse but then to revive with future effect, leaving a gap in continuity. I would hope that the Secretary of State would feel able to exercise her discretion to mitigate the disadvantages of the gap in relation to out-of-time appeals in the same way as she has done in relation to withdrawn decisions.
Owing to the result in R (Ramshini) v SSHD (JR/2156/2019), the SSHD did not dispute that an appeal out of time for which an extension of time is granted does cause leave to revive by virtue of section 3C(2)(c). It was common ground that an out-of-time appeal for which an extension of time is granted engages section 3C(2)(c) as a pending appeal and results in a revival of the section 3C leave. Bearing all this in mind, Sir Stephen Richards held that:
57. In conclusion on this issue, I should indicate that although the position as widely understood prior to Ramshini, whereby section 3C leave cannot revive once it has been lost (so that section 3C(2)(c) cannot apply at all to an appeal out of time), has a certain attraction in terms of purely linguistic considerations and does not create any problems of retroactivity, it would result in a much greater loss of protection for applicants and is a construction I would lean against for that reason. It does not have sufficient attraction overall to cause me to challenge the common ground in this case that section 3C(2)(c) can apply to an out-of-time appeal for which an extension of time is granted.
(ii) Pending appeal
The Court of Appeal decided that when an extension of time was granted, it rendered the notice of appeal effective from the date when it was filed, so that the appeal proceedings were instituted at that date rather than at the date when the decision to extend time was made or written notice of it was provided to the parties. Sir Stephen Richards held that:
63. Given the different wording of the primary legislation and the rules in force at the time, and the extent to which Newman J's reasoning was based on such wording, the judgment in Erdogan case appears to me to be distinguishable and to provide no real assistance in determining when an appeal out of time is instituted in accordance with the legislative regime that governs the present cases. In distinguishing Erdogan on a different issue in R (Secretary of State for the Home Department) v Immigration Appeal Tribunal  EWHC 3161 (Admin), Collins J noted at  that "the Rules did not at that stage provide for an appeal to exist in circumstances where there was an application to the Tribunal out of time".
64. Accordingly, the UT in Ramshiniwas in my judgment wrong to rely on Erdoganon this issue and wrong to reach the conclusion it did on the issue. In my judgment, for the reasons given above, where an extension of time is granted for an appeal out of time, the date when the appeal is instituted and becomes a pending appeal within section 3C(2)(c) is the date when the notice of appeal was filed, not the date when the extension of time was granted. That involves the acceptance of an element of retroactivity, in that where the grant of an extension of time post-dates the filing of the notice of appeal it causes leave to revive from the earlier date when the notice of appeal was filed. In this case, however, it seems to me to be the clear result of the relevant legislative provisions.
The court found that the approach reflected more fully in the section 3C guidance (at page 7), under the heading "Withdrawn decisions" was badly expressed in part and Sir Stephen Richards held:
68. … In my judgment, the analysis put forward on behalf of the Secretary of State is correct. I do not accept that the withdrawal of a decision, even where the reason for withdrawal is a perceived defect in the decision, is functionally equivalent to the quashing of the decision by the court or has the consequence of causing leave to be extended retroactively under section 3C from the date of the decision. The withdrawal does not reverse the previous legal position but can cause leave to revive under section 3C(2)(a) for the future because, from the date of withdrawal and until a fresh decision is taken, the application for variation can no longer be said to have been decided.
He furthermore held that making of a new decision on a reconsideration, i.e. an internal review of the original decision did not change the status of the original decision or its effect on section 3C leave.
Sir Stephen Richards did not read the reconsideration guidance as meaning that the issue of a new decision notice carries with it a necessary implication that the original decision has been withdrawn. The Court of Appeal was satisfied that the making of a new decision on a reconsideration does not change the status of the original decision or its effect on section 3C leave. The withdrawal of a decision by the SSHD revives section 3C leave from that point onwards and an out of time appeal revives it from the date of notice of appeal. In neither case is overstaying before that date retroactively rendered unlawful.
The Court of Appeal refused Ms Akinola's application for permission to appeal. Itgranted Mr Abbas permission to appeal on his one ground of appeal (which related to the effect of withdrawal/reconsideration on leave under section 3C) but he dismissed the substantive appeal. He granted Mr Alam permission to appeal on his first ground of appeal (relating to the effect on section 3C leave of an appeal out of time for which an extension of time is granted) but dismissed the appeal on that ground. He refused him permission to appeal on his other grounds of appeal.
Overall, in Ramshini, Lane J was wrong to hold, citing Erdogan v SSHD  EWHC 541 (Admin) that an appeal is instituted at the point when the FTT grants permission to appeal out of time, i.e. when the FTT decides to extend time for appealing. However it is now quite clear the decision in Erdogan is distinguishable and that on proper analysis an out-of-time appeal is instituted when the notice of appeal is filed, although the existence of a valid appeal from that date will depend on the later grant of an extension of time.
This decision is helpful to immigrants who have filed an out of time appeal as they can protect themselves from the hostile environment by filing an appeal and under the Court of Appeal's judgment it will be instituted and become a pending appeal by section 3C(2)(c) when the notice of appeal is filed, not the date when the extension of time is granted.