The provisions of the Immigration Act 1971 have haunted the courts for a number of years. Earlier cases such as Alvi and Munir led Lord Hope to wonder whether the 1971 Act “is still fit for purpose today”. Later in New London College efficacy related issues caused Lord Sumption to criticise the awry legislation because it “has not aged well” and is “ill-adapted to the mounting scale and complexity of the problems associated with immigration control”. 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. Particularly, Lord Carnwath concurred with the Court of Appeal’s opinion that an “overwhelming need” exists for the environment to be simplified because immigrants are entitled to sensible laws. (See cross-post on UKSC Blog).
A person’s leave to remain is extended under section 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 section 3C. Elias LJ was confronted with a situation where arguments were aired 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. Puzzled by it all, he said:
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.
However, the court felt the need to add a postscript about “how abstruse the law has become in this area.” Elias LJ was particularly disturbed by the “piecemeal way” in which the rules are manipulated to deal with the legal problems afflicting their content. He was surprised that the official position on section 3C – an important provision affecting immigrants’ lives – was as uncertain as the rules themselves.
Expressing anxiety for vulnerable litigants unable to navigate their way through the contents of the rules, the court was concerned about the damage sustained by the rule of law and lamented “firefighting is not the way to produce a rational or consistent set of rules”.
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 section 3C to an invalidly made application. Elias LJ had been right in the present case. Indeed, JH (Zimbabwe) made much the same point and Wall and Laws LJJ agreed with Richards LJ’s reasoning which Elias LJ found equally impressive.
The difficulties encountered by the House of Lords in Suthendran led to the enactment of the Immigration (Variation of Leave) Order 1976. A request in unambiguous terms for a variation of leave resulted in leave being extended by 28 days after the date of the decision or withdrawal of the application. This approach sought to overcome the dilemma identified in Suthendran, i.e. a right of appeal only arose if the applicant had leave at the date of both the application to vary and the notice of appeal.
Modernisation of the Immigration Rules meant that 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 overstayer.
In his historical exposition of the statute book, Lord Carnwath noted that the Immigration and Asylum Act 1999 overhauled the earlier legislative system and inserted section 3C into the 1971 Act. The provision became functional in 2003. It was subsequently modified by a fresh version through section 118 of the Nationality, Immigration and Asylum Act 2002 (and amended by section 11 of the Immigration, Asylum and Nationality Act 2006).
Reliance was placed in 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 subsequent provisions regarding fees or biometric information. Against that, the government argued that in 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 section 3C. Whether an application is valid or invalid is unknown when it is made and problems potentially arise as to bringing the extended leave to an end. 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 bringing leave to an end.
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 regulation 37 (consequences of failing to pay the specified fee) of the Immigration and Nationality (Fees) Regulations 2011 was unambiguous that an application “is not validly made” without paying the specified fee. In other words, an invalidly made application “can have no substantive effect” and it was clear to Lord Carnwath at para 33 that nothing in the regulation excluded “section 3C from its scope.”
Nothing turned on the fact that section 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. Rather, the executive was allowed to ascertain the scope of her powers given by Parliament in the 2006 Act and this was distinct from permitting her to alter the interpretation of primary legislation.
Moreover, Lord Carnwath felt attracted to 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 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 section 3C extension of her leave to remain.
The natural reading of section 7 (effect of non-compliance) of the UK Borders Act 2007 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 (26 March 2012) of her first application it could not be extended to her fresh out of time application (3 April 2012).
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 the senior most judiciary, emphasis has instead been provided to unleashing the tediously complicated provisions of the Immigration Act 2014 (which suffered serious humiliation in Johnson, see here) 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 and Munir or Lord Sumption in New London College or indeed the powerful criticisms made by Lord Carnwath and the Court of Appeal in the present appeals.