Mirza & Ors: The Rules are neither simple nor flexible so don’t leave it too late

11 January 2017 by Suzanne Lambert

Mirza and others v Secretary of State for the Home Department [2016] UKSC 63 – read judgment and press summary here.

The background to each of these appeals, although unfortunate, is not in any way extraordinary. Indeed, it is perhaps quite common for those applying for leave to remain to fall foul of procedural requirements or to be caught out by one of the many frequent changes in the legislative scheme governing immigration.

Whereas in most cases the solution may be simply to correct the procedural defect and make a further application, matters become much more complicated for those who apply too close to the date on which their leave to remain expires.

The Supreme Court’s recent decision makes clear that s.3C of the Immigration Act 1971 does not automatically extend a person’s leave to remain. Where leave expires in between the defective application and the fresh one an applicant will simply have run out of time for correction. This was the situation in which all three appellants found themselves.

The first, Mr Iqbal, was initially granted entry clearance to come to the UK as a student. He subsequently applied for further leave to remain as a student. Unfortunately, he was unaware that there had been a recent fee increase and he paid the old, lower fee. His application was rejected as invalid for that reason, and his leave expired. The second, Mr Mirza, entered the UK under a student visa and made an application to extend leave. That was rejected for non-payment of the fee when the Secretary of State was unable to take the application fee from his bank. The third, Ms Ehsan, had entry clearance and applied for further leave 5 days before it expired. She was contacted by the Secretary of State, requesting that she make an appointment to provide certain biometric information and subsequently was told by letter that her application was returned as invalid because of her failure to make and attend an appointment for providing biometric information. A new application made after expiry of her leave failed.

In the first two appeals, the applications were treated as invalid because sections 50 and 51 of the Immigration, Nationality and Asylum Act 2006 enable the Secretary of State to lay down in immigration rules procedural requirements for applications, including provision for the payment of a fee and the consequences of failure to comply. Similarly, in the case of the third, sections 5 and 7 of the UK Borders Act 2007 provides the power to make regulations regarding the provision of biometric information and the effect of failure to comply with these.

All three appellants applied for judicial review of the Secretary of State’s decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the Immigration Rules.

Section 3C of the Immigration Act 1971 extends a person’s leave to remain pending determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. The Secretary of State’s position was that the effect of her notice rejecting an application as invalid, should be treated as a decision on the application, thereby bringing the leave to an end under section 3C(2)(a).

The issue in all three of these cases was whether s.3C of the Immigration Act 1971 automatically extends a person’s leave to remain pending the determination of an application to extend leave to remain, notwithstanding that the original application was invalid or procedurally defective.

Lord Carnwath gave the judgment, with which the other Justices agreed. As there had been no challenge to the legality or rationality of the relevant rules and regulations, Lord Carnwath explained that the appeals fell to be decided within the current legislative framework and through the application of the ordinary principles of statutory interpretation, which starts from the natural meaning of the words in their context.

That legal framework was clear and the natural meaning of the words of s.3C is that in order for a person’s leave to be extended pending determination of an application, that application must be validly made. An application not validly made cannot have substantive effect. The fact that s.3C was enacted before the relevant statutory provisions (the 2006 and 2007 Act) was irrelevant as Parliament had not sought to prescribe the consequences of procedural failure even though it would have been possible to do so. Therefore, there was no reason to exclude section 3C.

Nor was there any basis to suggest that there was any unfairness in any of these cases and specifically in the case of Mr Iqbal, where the ground of unfairness had been raised. Although it was unfortunate that he had been caught out by the recent change in the level of fees, there was no failure by the Secretary of State to publicise the change. It was announced in and news items were published on the UK Border Agency website, and indeed the new fees were set out in the relevant application form. Rather, the problem arose in his case because the application had been made “very close to the expiry of leave and left no time for correction”.

Notwithstanding the simplicity of the analysis required in this appeal, Lord Carnwath echoed the disquiet of the Court of Appeal as to the need for greater rationalisation and simplification of the immigration rules and regulations, which are a tangled web and easy to misinterpret, even for those who are vigilant.

I have found this a troubling case. It is particularly disturbing that the Secretary of State herself 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 their meaning and the policy behind them. I agree with the concluding comments of Elias LJ (para 49) on this aspect, and the “overwhelming need” for rationalisation and simplification.

Moreover, Lord Carnwath indicated that not only is there need for simplification, but there is also need for greater flexibility on the part of the Secretary of State to exercise some discretion in favour of those who are currently penalised for simple errors.

Although Parliament did not place any restriction on the power of the Secretary of State to provide for the consequences of failure, that did not absolve her of responsibility for achieving a fair balance between the competing policy considerations.

However, given as Lord Carnwath observed, that the need for flexibility has long been clear at least since 1996, one can’t help but wonder whether there is not some reason for the obscurity and rigidity that currently characterises the rules and regulations.