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Summary

The provisions of the Immigration Act 1971 have asad-khanhaunted the courts for a number of years. This judgment triggered some further recriminations despite the fact that Lady Hale, Lord Wilson, Lord Carnwath, Lord Hughes and Lord Hodge unanimously dismissed Mirza, Iqbal and Ehsan’s appeals. Giving the only judgment, Lord Carnwath found this to be “a troubling case”. Defects in immigration applications are commonplace. Yet tolerating virtually no margin of error the application process demands perfection. Somewhat ironically, the executive’s failure to provide a consistent view of her own rules and regulations was “particularly disturbing” for the justices. Despite the negative outcome for the appellants, wholesale judicial concern was expressed about the absence of coherence in the legislative framework underpinning immigration law.

Background

A person’s leave to remain is extended under s 3C of the 1971 Act if an in-time application has been made and decision-making on the application is pending. Iqbal entered the UK as student and sought to extend his leave in that category but unwittingly paid the earlier application fee and underpaid by £29. Subsequent events led him to run out of leave. Mirza also entered as a student and but his application was rejected as invalid owing to non-payment of the £295 fee. He later sought to switch into the Tier 1 (Post Study Work) category but his application was refused because he did not have earlier leave as a Tier 4 (Student) and also applied after more than one year after completing his qualification. Ehsan’s initial Tier 4 (Student) application was declared invalid because of failures related to providing biometrics. Her fresh application failed.

The Court of Appeal

Elias, Rafferty and Beatson LJJ held that an application not validly made in accordance with the Immigration Rules failed to engage s 3C. Elias LJ was confronted with arguments that persons with limited leave were in a position to submit a “rudimentary application” for an extension without even using an application form and remain in the UK indefinitely relying on statutory magic:

24 … I confess that I would be reluctant to accept that Parliament intended an outcome where anyone lawfully present could extend their leave indefinitely by such a simple device unless the statutory language permitted no other acceptable construction.

The Supreme Court

All three appeals were unanimously dismissed. No automatic grant of an extension of leave to remain pending the determination of an application to vary existing leave was provided by s 3C to an invalidly made application. Elias LJ had been right in the present case. Indeed, JH (Zimbabwe) [2009] EWCA Civ 78 made much the same point and Wall and Laws LJJ agreed with Richards LJ’s reasoning which Elias LJ found equally impressive.

In 1996 it became mandatory for immigration applications to be made on a prescribed form accompanied by specified documents failing which the application became invalidated. The resultant challenge in the ILPA case was dismissed irrespective of the judicial observation that not using a form would in fact create the criminal liability ascribable to an over-stayer.

Reliance was placed on the original meaning of “application” under the 1976 Order, i.e. a request in unambiguous terms. Nothing suggested that the interpretation had been subsequently restricted by Parliament in connection to the provisions regarding fees or biometric information. Against that, the government argued that the ILPA case acknowledged the hazards posed by an “invalid” application and the conclusion came to be “entrenched” in subsequent legislation.

The court was amazed at the somersaults performed by the parties regarding the coverage provided by s 3C. Whether an application is valid or invalid is unknown when it is made and problems potentially arise in ending the extended leave. Indeed, Lord Carnwath recalled Elias LJ’s observation that a defective application securing an extension of time would even possibly be “indefinite” as no decision could validly be made ending leave.

Disturbed by the imprecision plaguing the system, Lord Carnwath held:

30 … 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 their meaning and the policy behind them.

The appeals fell to be decided on the legislation as it stands. Applying ordinary principles of statutory interpretation by construing the words used according to their natural meaning, it was right to dismiss Iqbal and Mirza’s appeals. The language of Immigration and Nationality (Fees) Regulations 2011, reg 37 (consequences of failing to pay the specified fee) was unambiguous that an application “is not validly made” without paying the specified fee and so “can have no substantive effect”.

Nothing turned on the fact that s 3C existed prior to the 2006 Act (or associated regulations) because the 2006 Act’s powers had been produced “within the same legislative framework as the 2002 Act.” No limitation existed on the executive’s power regarding stipulating the consequences of procedural failure and it was fanciful to argue that the executive had been empowered to alter the interpretation of the primary legislation.

Moreover, Lord Carnwath advocated the rationale in the ILPA case where Collins J demonstrated “a clear understanding” of the practical consequences of invalidity. Such implications informed emergent laws “and must be assumed” to have been in the minds of the drafters of both primary and secondary legislation. No unfairness was caused to Iqbal by a perceived failure to notify him of the defect in time for him to take corrective action. Even though his situation was “unfortunate”, reliance placed in Basnet [2012] UKUT 113 (IAC) was rejected because Blake J’s remarks in that case are not constitutive of “a universal rule”. If anything, the executive had acted promptly and Iqbal’s own tactics were self-defeating to the extent that:

35… the application had been made very close to the expiry of leave and left no time for correction.

Ehsan’s case caused more “difficulty” owing to the distinction that the responsibility for payment of fees arises when the application is made whereas the duty to enrol biometric information only arises at a later stage. So failing to pay the fee renders an application invalid from the outset but the analysis regarding the provision of biometrics was markedly different. Lord Carnwath was unconvinced that a failure at the biometric information stage was capable of invalidating Ehsan’s application from the outset, nullifying any s 3C extension of her leave to remain.

The natural reading of the UK Borders Act 2007, s 7 (effect of non-compliance) gave power to invalidate the application from the time of the decision. While it was clear that the provision did not operate retrospectively, the point was of no assistance to Ehsan because even if her leave continued until the date of decision of her first application it could not be extended to her fresh out of time application.

Comment

Mounting judicial criticism over the aging provisions of the 1971 Act has not triggered a response from the government. Rather than fixing the existing shortcomings painstakingly identified by senior judiciary, emphasis has instead been provided to unleashing the tediously complicated provisions of the Immigration Act 2014 and the Immigration Act 2016.

Both pieces of legislation, best described as statutory mayhem, turn a blind eye to the dilemmas identified by Lord Hope in Alvi [2012] UKSC 33 and Munir [2012] UKSC 32 or Lord Sumption in New London College [2013] UKSC 51 or indeed the powerful criticisms made by Lord Carnwath and the Court of Appeal in the present appeals.

Originally posted here

About the author: Asad Ali Khan is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple), Advocate High Courts Pakistan. He is a research associate at the CCP Research Foundation and also works as international counsel in an English law firm.