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ARFAN KHAN SUCCESSFUL IN ESTABLISHING THE CORRECT TEST IN INDEFINITE LEAVE APPEAL

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Leave to remain: R (Akinola) v Upper Tribunal (Secretary of State for the Home Department interested party) [2021] EWCA Civ 1308 (Court of Appeal: Lord Justice Philips, Lord Justice Stuart Smith and Sir Stephen Richards)

The Court of Appeal has delivered a guidance decision in three cases on the interpretation and effect of s.3C of the Immigration Act 1971 in indefinite leave to remain cases.

The requirement that an applicant satisfy the 10 years lawful residence before applying for indefinite leave to remain is contained in Rule 276B of the Immigration Rules.

The purpose of s.3C leave is to protect the immigration status of those with existing leave pending the determination of a variation application or appeal in respect of that decision. It is framed to prevent an abuse of the system by permitting one application for variation. It provides that leave is extended during any period where:

“(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)” (emphasis added in italics).

The appeals concerned the effect of section 3C on (i) an appeal out of time for which an extension of time is granted, and (ii) a withdrawal and/or reconsideration of a refusal decision.

The principal question in dispute was whether leave revived with future effect or retroactively, so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b) (§ 48).

On appeal to the Court of Appeal, the SSHD introduced a new policy based on the reasoning of the Upper Tribunal in R (Ramshini) v Secretary of State for the Home Department dated 31 July 2019 (JR/2156/2019). In Ramshini, relying upon the Court of Appeal decision in R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, the Upper Tribunal held that an appeal is instituted under s.104 of the Nationality Immigration and Asylum Act 2002 when permission to appeal is granted out of time. As a result, in so far as material, the new policy of the SSHD (v.10) provided that s.3C leave revived prospectively from the date permission to appeal was granted, as opposed to retrospectively.

The Court of Appeal held that 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 s.3C leave (§ 48). It held that the linguistic considerations pre Ramshini, which sought to avoid the retroactive application of s.3C to out of time appeals, were not sufficient to cause it to challenge the common ground that section 3C (2) (c) can apply to an out of time appeal for which an extension of time is granted.

On Akinola’s challenge to the analysis of the Upper Tribunal’s decision in Ramshini, the Court of Appeal held that section 3C had retroactive effect from the date the Appellant’s notice is filed under rule 19 and 20 of the 2014 Rules, and not from the date that the Court extends time for appeal, as held in Ramshini (and adopted in the new policy of the SSHD). The Court of Appeal held that Ramshini was wrongly decided in so far as it relied on the decision in Erdagon: 

“[47]. The Secretary of State now accepts the approach in Ramshini and has changed her section 3C guidance to reflect it in the current version 10.0. Accordingly Ms Giovanetti QC, on behalf of the Secretary of State, accepted before us 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) but submitted that it does so only with future effect from the date when the extension of time is granted. On the other hand Mr Khan and Mr Hawkin, for Ms Akinola and Mr Alam respectively, took the approach in Ramshini one step further, submitting that when section 3C(2)(c) is engaged by an appeal out of time for which an extension of time is granted, it extends the section 3C leave with retroactive effect so as to make that leave continuous from the end of the period in section 3C(2)(b) when it otherwise expired. As a subsidiary challenge to the analysis in Ramshini, Mr Khan argued further that where an extension is granted for an appeal out of time, the appeal is instituted when the notice of appeal is filed, not when the extension of time is granted, and that it is therefore pending for the purposes of section 3C(2)(c) from the time when the notice of appeal is filed.

[48]. It is therefore 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. The principal question in dispute is whether that leave revives only with future effect or does so with retroactive effect so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b).  I have found that a difficult question. There are substantial pointers in each of the two directions canvassed in argument before us, but also in the direction of the position as widely understood prior to Ramshini…

[59]. The UT in Ramshini, citing R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, held 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. The Secretary of State has again accepted that position. Mr Khan submitted, however, that 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, even though the existence of a valid appeal from that date will depend on the later grant of an extension of time.

[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 [2004] EWHC 3161 (Admin), Collins J noted at [44] 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 Ramshini was in my judgment wrong to rely on Erdogan on 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”.

Whilst the Court refused permission to appeal in Akinola, and dismissed the other two appeals, the Court of Appeal certified Akinola as a case which can be cited in other cases under Practice Direction para 6.1.

ARFAN KHAN appeared for Akinola instructed by DCK Solicitors.

The judgment can viewed here:

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html

 

 

 

 

 

Court of Appeal allows appeal in Yadly Marketing

Commercial and Chancery litigation, Court of Appeal, Court of Appeal allows appeal in Yadly Marketing, Practice - Court of Appeal, Statutory limitation periods, ,

Arfan Khan was instructed as lead Counsel and led on the appeal to the Court of Appeal. The appeal was allowed. The case is reported as Yadly Marketing v Secretary of State for the Home Department [2016] WLR (D) 621; [2016] EWCA Civ 1143.

The full judgment can be accessed online here or by clicking the PDF link below:

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1143.html

Yadly v Secretary of State pdf

In so far as material, the case summary reported in the [2016] WLR (D) 621 reads as follows:

“Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143

Arden, Beatson Henderson LJJ

2016 Nov 8; 23

Practice — Documents — Filing — Penalty notice issued in respect of overstaying employees — Last day for filing appellant’s notice falling on public holiday when court office closed — Appellant’s solicitor filing notice day after — Whether statutory language to be construed as granting an extra day — Immigration, Asylum and Nationality Act 2006 (c 13), s 17(4)

The Home Office’s Civil Penalty Compliance team issued a civil penalty notice on the employer pursuant to section 15 Immigration, Asylum and Nationality Act 2006 in respect of employees who were working without appropriate leave. The employer filed a notice of objection under section 16. The Secretary of State issued an amended notification of liability on 25 April 2014, in which it was stated that, under section 17(4) of the 2006 Act, any appeal had to be brought on or before 26 May 2014, which in fact was a bank holiday Monday when the court offices were closed. On 27 May 2014 the employer attempted to issue an appeal at a county court which wrongly refused to accept it. A further attempt to issue the appeal was again wrongly refused on 28 May. The employer then posted an appellant’s notice to a different county court and the appeal was lodged on 30 May 2014. When the case was listed for appeal the Secretary of State applied for the appellant’s notice to be struck out as out of time. The judge allowed the Secretary of State’s application, determining that there was no provision in the 2006 Act for an extension of time for appealing, that CPR r 2.8(5) did not apply to statutory time limits and that the delay between the rebuff received at the county court on 27 May and the papers arriving at a different county court on 30 May indicated that the employer had not done all it could to bring the appeal within the prescribed time limit and therefore there were no exceptional circumstances justifying a time extension.

On the employer’s appeal—

Held, appeal allowed. While it was not open to the court to extend the time limit of a statutory period for the bringing of an appeal under section 17 of the Immigration, Asylum and Nationality Act 2006, where the last day of the specified number of days fell on a public holiday or on a day when the relevant public office was closed for the entire day, section 17 was to be construed as requiring the delivery of the relevant document to the court office itself on the following business day. Further, while the scope for departure from a 28-day time limit such as that in section 17 was extremely narrow, a person was entitled to serve notice at the last possible moment and the relevant period was not to be cut down by bringing it forward. In the present case, the time limit would have been brought forward by three days and, therefore, the employer had been entitled to file its appellant’s notice on the day after the bank holiday. Moreover, the employer had done all it could to issue the appeal in time and the county court’s error constituted exceptional circumstances justifying an extension of time and the judge was wrong to determine otherwise (paras 27, 36, 38, 41, 45, 46).

Pritam Kaur v S Russell & Sons Ltd   [1973]  QB  336, CA applied.

Van Aken v Camden London Borough Council   [2003]  1  WLR  684, CA, Mucelli v Government of Albania   [2009]  1  WLR  276, HL(E) and Adesina v Nursing and Midwifery Council   [2013]  1  WLR  3156, CA considered…”.

http://cases.iclr.co.uk/Subscr/search.aspx?path=WLR+Dailies%2Fwlrd2016%2Fwlrd2016-621