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Supreme Court judgment on statutorily-extended leave

21st December 2016

Robin Tam QC succeeds in the Supreme Court on whether a statutory extension of leave under section 3C of the Immigration Act 1971 is triggered by an invalid application.

Robin Tam QC (together with Samantha Broadfoot of Landmark Chambers) represented the Secretary of State to resist an appeal by three individuals who claimed that their leave to enter or remain in the United Kingdom had been extended by the operation of section 3C of the Immigration Act 1971, which is designed to continue existing leave while the Home Secretary considers an application for an extension and during any statutory appeal against an adverse decision.

Each appellant had made an application to extend their leave before the expiry of their existing leave. However, each application was invalid for a procedural reason. One paid the wrong application fee; one gave payment details but the Home Secretary was unable to collect payment; and one did not provide her biometric information when required to do so. Consequently each of those applications was rejected as invalid, the Home Secretary considered that section 3C did not operate to extend leave and dealt with the appellants accordingly. The appellants argued that the statutory provision should be interpreted so that statutorily-extended leave was triggered by any application, whether valid or invalid.

On 14 December 2016, the Supreme Court gave judgment dismissing the appeals ([2016] UKSC 63). Given the provisions of the legislation regarding fees, non-payment meant that the application was not validly made and section 3C leave was not triggered. And although the obligation to provide biometric information did not arise until the Home Secretary required it, the legislative provisions allowed the Home Secretary to treat the application as invalidating the application from the time of the decision rejecting it as invalid.

Each appellant had relied on the operation of section 3C leave for the benefit that it would have conferred in relation to a second application later made by them. However, given the conclusion that the earlier application either was invalid or had been invalidated by the time of the second application, the consequence was that the appellant was not entitled to the claimed benefit and the Home Secretary had dealt correctly with the second application.

Accordingly, the appeals failed.

Related Barristers

Robin Tam QC

Robin Tam QC
Year of Call: 1986
Year of Silk: 2006

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