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Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 00150 (IAC)

Upper Tribunal
(Immigration and Asylum Chamber)

Ved and another (appealable decisions; permission applications; Basnet)[2014] UKUT 00150 (IAC)

THE IMMIGRATION ACTS

Heard at Field House
On 19 February 2014
Determination promulgated:
27 March 2014

Before

UPPER TRIBUNAL JUDGE ESHUN
UPPER TRIBUNAL JUDGE PETER LANE

Between

BHUPENDRA MAKANJI VED
HARSHADA BHUPENDRA VED
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellants: Mr J. Chhotu, Counsel
For the respondent: Mr N. Bramble, Senior Home Office Presenting Officer

(1) A jurisdictional decision of the First-tier Tribunal, Immigration and Asylum Chamber, contained in a determination made after the appeal has passed the duty judge “screening” stage, is appealable to the Upper Tribunal: Practice Statement 3.4; Abiyat & others (Rights of appeal) [2011] UKUT 00314 (IAC).

(2) Where the First-tier Tribunal has refused to entertain an application made to it for permission to appeal to the Upper Tribunal, the Upper Tribunal has discretion under rule 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to consider an application for permission made to that Tribunal, notwithstanding that the requirements of rule 21(2)(b) have not been met, in that the First-tier Tribunal has not refused (or not admitted) a permission application. It is, however, unlikely that the Upper Tribunal would apply rule 7 so as to entertain a permission application in the case of a party who has not made any prior application to the First-tier Tribunal. Likewise, the Upper Tribunal can be expected summarily to reject an application for permission to appeal a decision that has been made under rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and in accordance with Practice Statement 3.1-3.3.

(3) The findings of the Upper Tribunal in Basnet (Validity of application – respondent) [2012] UKUT 00113 (IAC)depended upon there being an appealable immigration decision, which in that case can only have been a refusal to vary leave to remain within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State’s rejection of an application for leave as invalid is not an immigration decision within section 82 of the 2002 Act and cannot as such be appealed to the First-tier Tribunal.

DECISION ON APPLICATION TO UPPER TRIBUNAL FOR PERMISSION TO APPEAL AGAINST DECISION OF FIRST-TIER TRIBUNAL

1. The questions

1.     Two questions arise in these proceedings:-

(1) Where the First-tier Tribunal has refused to entertain an application made to it for permission to appeal to the Upper Tribunal, can the Upper Tribunal entertain an application for permission made directly to it?

(2) Does an appeal lie to the First-tier Tribunal against a decision by the Secretary of State to refuse to accept an application to vary leave to remain, on the ground that the legal requirements for making a valid application were not met? In support of their contention that the answer to this question is yes, the appellants seek to rely upon the determination of the Upper Tribunal in Basnet (Validity of application – respondent) [2012] UKUT 00113 (IAC).

2. The background

3.     The appellants, husband and wife, are citizens of Tanzania born respectively on 8 February 1937 and 14 October 1941. They most recently entered the United Kingdom on 17 March 2012, in possession of visit visas. During the currency of their leave, the appellants submitted on 21 June 2012 application forms for indefinite leave to remain as the dependent relatives of their daughter, a person present and settled in the United Kingdom. On 8 August 2012, the respondent wrote letters to each of the appellants, acknowledging “Your attempted application for leave to remain in the United Kingdom” and stating that

“Your application is invalid and we are returning the application form and documents received from you. Please read this letter to ensure that you understand what you need to do in order to make a valid application.”

In each case the respondent’s reason for refusal was that the necessary payment had not been made in connection with the application. Having gone on to explain that making a valid application, even if on the correct form and in compliance with the above requirements, does not guarantee the application will be successful”, the letter ended by saying that if “You still wish to make an application, you must return your fully completed application form with the appropriate fee to the address given on the application form”.

4.     Both appellants submitted new applications. On 27 October 2012, however, the respondent wrote to the appellants to state that, once again, their applications were regarded as invalid. As before, the respondent considered that the correct payment had not been made.

5.     The appellants purported to appeal to the First-tier Tribunal against the decisions articulated in the respondent’s letters of August and October 2013. The appellants also launched judicial review proceedings in the High Court against those decisions. The judicial review proceedings were, according to Mr Chhotu, brought on a “precautionary” basis, in case the First-tier Tribunal proved unable to afford the appellants the relief they sought.

6.     The grounds of appeal to the First-tier Tribunal relied heavily on the determination in Basnet. The notices of appeal passed through the hands of a Duty Judge of the First-tier Tribunal and the appellants’ appeals were listed for hearing on 22 March 2013 in Birmingham. By means of a decision entitled “Determination and Reasons” promulgated on 28 March 2013, Immigration Judge Hawden-Beal decided that there were no valid appeals before the First-tier Tribunal.

7.     We shall come in due course to the detail of Judge Hawden-Beal’s reasons for finding that there was no valid appeal before her. For the present, however, it is sufficient to note that she heard oral evidence from Mr Vijay Ved (the appellants’ solicitor) and from the husband of the sponsor, concerning the circumstances in which the two sets of applications had been made. The judge received detailed submissions from Mr Chhotu, for the appellants, and from Ms Khan, the Home Office Presenting Officer. The judge made findings of fact and of law, both of which were set out in her determination.

3. A jurisdictional decision in a determination of the First-tier Tribunal (IAC) can be appealed.

8.     Rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 reads as follows:-

“9 Where the Tribunal may not accept a notice of appeal

(1) Where a person has given a notice of appeal to the Tribunal and the circumstances in paragraph (1A) apply, the Tribunal may not accept the notice of appeal.

(1A) The circumstances referred to in paragraph (1) are that—

(a) there is no relevant decision;

(b) the notice of appeal concerns the refusal of an application for entry clearance which was not made for a purpose falling within section 88A(1)(a) or (b) of the 2002 Act, and the notice of appeal does not rely on either of the grounds specified in section 88A(3)(a) of the 2002 Act; or

(c) the Lord Chancellor has refused to issue a certificate of fee satisfaction.

(2) Where the Tribunal does not accept a notice of appeal, it must—

(a) notify the person giving the notice of appeal and the respondent; and

(b) take no further action on that notice of appeal.”

9.     The Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (2010, as amended) contain the following:-

Where the Tribunal may not accept a notice of appeal

3.1 First-tier rule 9 (where the Tribunal may not accept a notice of appeal) imposes a duty on the Tribunal not to accept an invalid notice of appeal (in the circumstances described in rule 9(1A)) and to serve notice to this effect on the person who gave the notice of appeal and on the respondent.

3.2 The Tribunal will scrutinise a notice of appeal as soon as practicable after it has been given. First-tier rule 9 makes no provision for the issue of validity to be determined by means of a hearing or by reference to any representations of the parties.

3.3 Once the Tribunal has served the notice described in paragraph 3.1, First-tier rule 9 provides that the Tribunal must take no further action in relation to the notice of appeal. The decision under First-tier rule 9 is, accordingly, a procedural or preliminary decision.

3.4 The fact that a hearing date may have been given to the parties does not mean that the appeal must be treated as valid. Accordingly, if at a hearing (including a CMR hearing) it transpires that the notice of appeal does not relate to a decision against which there is, in the circumstances, an exercisable right of appeal, the Tribunal must so find; but it will do so in the form of a determination, rather than by means of a notice under First-tier rule 9.”

10.     Certain decisions of the First-tier Tribunal and the Upper Tribunal are “excluded decisions” for the purposes of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, which govern appeals from respectively the First-tier Tribunal to the Upper Tribunal and from the Upper Tribunal to the relevant Appellate Court. Amongst the excluded decisions, which may not be appealed under those sections are:-

“any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82, 83 or 83A of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulations 2006” (Article 3(m) of the Appeals (Excluded Decisions) Order 2009 (SI 2009/275 (as amended)).

11.     In JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, the Court of Appeal construed the appellate scheme which applied to the former Asylum and Immigration Tribunal, which for present purposes is not materially different from that under the 2007 Act. The effect of the Court’s judgment is that, once the time for applying rule 9 of the 2005 Rules has passed, a jurisdictional decision is appealable, rather than only being susceptible to judicial review. In order to reflect this important principle, Practice Statement 3.4 provides that, although the holding of a hearing of an appeal does not prevent the judge from finding there is, in the circumstances, no exercisable right of appeal, the proper means of recording such a decision is in the form of a determination, rather than a notice under rule 9 of the 2005 Rules. The result of this is that the rule 9 procedure applies only to the preliminary “screening” stage at which a Duty Judge of the First-tier Tribunal scrutinises notices of appeal.

12.     Practice Statement 3.4 was considered in some detail by the Upper Tribunal in Abiyat & Others (Rights of appeal) [2011] UKUT 00314 (IAC). Mr C M G Ockelton, Vice-President, held that a decision as to jurisdiction was not a “procedural” decision. Furthermore, a jurisdictional decision made otherwise than pursuant to rule 9 at the “screening” stage, cannot be categorised as a “preliminary” decision:-

“I conclude that JH (Zimbabwe) essentially decides that a decision as to jurisdiction made after the Tribunal has begun to consider an appeal, including a case where its consideration is limited to the issue of whether there is jurisdiction, is not procedural, and is not preliminary in the sense intended by the legislation governing the asylum and immigration tribunals.” [21]

13.     Notwithstanding the judgment in JH (Zimbabwe), the determination in Abiyat and the provisions of Practice Statement 3.4, Judge Hawden-Beal’s determination was sent to the parties by the First-tier Tribunal’s administration in Birmingham under cover of the following document:-

Notice of Appeal where there is no Relevant Decision

You have given a notice of appeal against the decision of the Respondent.

The decision against which you are seeking to appeal is not one against which there is an exercisable right of appeal to the First-tier Tribunal or is one where the notice of appeal falls within rule 9(1A)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. Accordingly the notice of appeal you have lodged is invalid and the Tribunal will take no further action in relation to it.”

14.     It was plainly wrong for such a notice to have accompanied Judge Hawden-Beal’s determination. The only proper time to use that notice is at what we have termed the “screening” stage, where a notice of appeal is scrutinised by a Duty Judge, who considers that rule 9 applies. In the present case, what the parties should have received from the First-tier Tribunal was a notice stating that a determination was enclosed and explaining how a party dissatisfied with that determination could challenge it by applying to the First-tier Tribunal for permission to appeal to the Upper Tribunal, pursuant to section 11 of the 2007 Act.

4. The First-tier Tribunal’s refusal to entertain the application for permission to appeal

15.     Undaunted by the misleading notice, those acting for the appellants filed an application with the First-tier Tribunal for permission to appeal. On 12 April 2013 the First-tier Tribunal, from its office in Leicester, wrote to the appellants’ solicitors as follows:-

“Your application for permission to appeal cannot be entertained by the Upper Tribunal (sic). This is because the decision of the First-tier Tribunal you seek to challenge is an excluded decision and therefore no appeal against it lies to the Upper Tribunal: see section 11 of the Courts, Tribunals and Enforcement Act 2007 (sic) and, in particular, the order made pursuant to section 11(5)(f): the Appeals (Excluded Decisions) Order 2009 (as amended).”

16.     It is unclear whether the letter of 12 April followed any judicial scrutiny of the appellants’ application. In any event, it was not only ineptly drafted but, in the circumstances, wrong in law.

17.     In so finding, we are not to be taken as saying that a (better-drafted) version of the 12 April letter should not be sent whenever a notice of appeal has been rejected by a Duty Judge, acting pursuant to rule 9. On the contrary, where the rule 9 procedure has been followed by that Judge and a person seeks to appeal the outcome, he or she should be told that the rule 9 decision is an excluded decision, which cannot be appealed to the Upper Tribunal. But, as the present case bears witness, such letters must not be used in connection with decisions of the First-tier Tribunal that are given in the form of determinations.

5. The Upper Tribunal’s response to the application for permission to appeal

18.     Following their rebuff by the First-tier Tribunal, the appellants filed completed form IAUT-1, seeking permission to appeal from the Upper Tribunal itself. On 6 August 2013 the Upper Tribunal at Field House wrote to the appellants as follows:-

“You have submitted to the Upper Tribunal an application for permission to appeal against the determination of the First-tier Tribunal. This, however, cannot be entertained by the Upper Tribunal because Rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that a person may apply to the Upper Tribunal for permission to appeal only if an application has been made to the First-tier Tribunal and has been refused. It is not apparent that this is the case and no further action can be taken in respect of the application you have made to the Upper Tribunal.”

19.     Rule 21(2) of the Upper Tribunal Rules reads as follows:-

“(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if:-

(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and

(b) that application has been refused or has not been admitted.”

20.     As can immediately be seen, the letter of 6 August is inaccurate, in so far as it refers only to an application to the First-tier Tribunal having “been refused”. No reference is made to the alternative possibility, whereby the application “has not been admitted”.

6. Answering the first question

21.     Rule 24(4) of the 2005 Rules provides that, where an application for permission is made outside the relevant time limit, the First-tier Tribunal may extend time “if satisfied that by reason of special circumstances it would be unjust not to do so”. Rule 24(4)(b) states that, unless time is so extended, the First-tier Tribunal “must not admit the application”. The concept of non-admission of an application finds expression in the 2005 Rules only in rule 24(4)(b).

22.     We have come to the conclusion that the words “has not been admitted” in Upper Tribunal rule 21(2)(b) are to be read as applying only to the situation where the relevant First-tier Tribunal rules expressly provide for an application to be not admitted, rather than any circumstance in which an application is in practice not entertained. We accept that provisions which have the effect of restricting access to judicial remedies are not, in general, to be given any wider interpretation than is strictly warranted by their language or context. But the effect of reading Upper Tribunal rule 21(2)(b) more widely would be to afford (or, at least, suggest) a right of application to the Upper Tribunal where the decision under challenge is an excluded decision and has been correctly identified as such by the First-tier Tribunal. On the other hand, as the present case illustrates, there ought to be some mechanism whereby a person whose permission application is not entertained by the First-tier Tribunal can seek to persuade the Upper Tribunal that the First-tier Tribunal’s response was wrong and that the matter is appealable.

23.     Such a mechanism exists in the shape of Upper Tribunal rule 7 (failure to comply with rules etc). Rule 7(2) states:-

“(2) If a party has failed to comply with a requirement in these rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include:-

(a) waiving the requirement;

…”

24.     On the particular facts of the present case, the requirement in rule 21(2), that the appellant should have applied for permission to the First-tier Tribunal and been refused or had their application not admitted, clearly should not be a reason to preclude the appellants from applying for permission to the Upper Tribunal. We would, however, emphasise the following important points.

25.     First, the existence of rule 7(2)(a) is not in any way to be regarded as excusing appellants from first applying to the First-tier Tribunal for permission to appeal, before approaching the Upper Tribunal. Indeed, we cannot readily envisage a situation where the Upper Tribunal would be likely to accept an application for permission from a party to proceedings in the First-tier Tribunal who has chosen not to make any prior application to that Tribunal, whether or not such an application would be out of time. The same is likely to be true where no such prior application is made, as a result of inadvertence.

26.     Secondly, a person who seeks permission to appeal a rule 9 decision of a Duty Judge, which has been made in accordance with Practice Statement 3.1-3.3 and the associated case law, will need to show highly compelling reasons why the Upper Tribunal should apply rule 7(2) in his or her favour, so as even to have the application considered. Those who cannot do so must expect to have their applications summarily rejected.

7. The second question: the scope of Basnet

27.     In the circumstances of the present case, it is manifestly appropriate, in pursuance of the overriding objective in rule 2, to apply rule 7(2) in order to admit the appellants’ applications for permission to appeal to the Upper Tribunal. Those applications accordingly fall to be decided pursuant to rule 22. We can, therefore, now address the second of the questions posed in paragraph 1 above; namely, whether the appellants had a right of appeal to the First-tier Tribunal against the decisions articulated in the respondent’s letters of 8 August and 27 October 2012. Judge Hawden-Beal found they did not.

28.     We remarked at the outset that the appellants’ case relies heavily upon the Upper Tribunal’s determination in Basnet. It is, accordingly, necessary to examine that decision, in some detail.

8. The determination in Basnet

29.     Mr Basnet applied for a variation of his leave to remain in the United Kingdom as a Tier 4 (General) Student. This was on 13 May 2011. His existing leave to remain expired on 28 May 2011. On 16 June 2011, the respondent wrote to tell him that his application was invalid because the specified fee had not been paid. He was given information as to how make a fresh application, which he did on 22 June 2011.

30.     What happened next is recorded by the Upper Tribunal as follows:-

“7. The respondent refused that application by letter dated 3 August 2011. The letter states that because the application was made when the appellant no longer had valid leave to remain in the United Kingdom, he did not have ‘an established presence studying in the United Kingdom’, and so did not qualify for the reduced level of maintenance funds to be shown. The bank statements submitted to support the application did not meet the maintenance requirements.

8. It is common ground that throughout the period of both applications the appellant had funds in his bank account such that if he had made an ‘in time’ application based on an ‘established presence’, the application would have succeeded.

9. The respondent’s letter also advised the appellant:

There is no right of appeal against this decision.

10. If the appellant had not made a valid application within his period of leave, that would be a correct statement of the law.”

31.     Although the Upper Tribunal did not expressly say so, it is plain that the respondent’s decision contained in the letter of 3 August 2011 was a decision to refuse to grant leave to remain in the United Kingdom. It could not have been a decision to refuse to vary existing leave because, as we can see, Mr Basnet’s existing leave expired on 28 May 2011.

32.     Paragraph 11 records that Mr Basnet filed a notice of appeal in August 2011, in which he contended that his leave had, in reality, continued beyond 28 May 2011 by operation of section 3C of the Immigration Act 1971. That contention depended upon the original application, made on 13 May 2011, being valid. This is because section 3C(1)(b) has, as one of the requirements for extending leave under subsection (2), that “the application for variation is made before the leave expires”. Unless the 13 May application had the effect of extending leave, then, of course, the 22 June application could not satisfy the requirement of section 3C(1)(b).

9. Identifying an immigration decision

33.     It is necessary at this point to recollect that the only means by which an appeal of the kind with which we are concerned may be brought to the First-tier Tribunal is under section 82 of the Nationality, Immigration and Asylum Act 2002. This provides that:-

“(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.”

34.     Section 82(2) contains a comprehensive definition of what is meant by an “immigration decision”. One such decision is a:-

“(d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain.”

35.     That “refusal to vary” decision is the only “immigration decision” within section 82(2) that could conceivably be relevant in the case of the present appellants. The same would appear to be true in Basnet, although paragraph 11 of the Upper Tribunal’s determination records Mr Basnet’s notice of appeal to the First-tier Tribunal as contending “that he had a right of appeal under section 82(2)(g). Section 82(2)(g) comprises:-

“(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in the United Kingdom).”

36.     The Upper Tribunal in Basnet says no more about section 82(2)(g). It is nevertheless clear the Tribunal’s determination did not involve a finding that Mr Basnet had been served with a removal decision giving rise to an in-country right of appeal. Indeed, it is apparent from paragraph 9 of the determination, set out above, that Mr Basnet was not given a removal decision, for, if he had been, the decision of 3 August 2011 would have had to tell him he had a right of appeal to the First-tier Tribunal against the removal decision, albeit exercisable only once he had left the United Kingdom (if he had not made a prior asylum or human rights claim): see regulation 4 of the Immigration (Notices) Regulations 2003 (SI2003/658).

37.     The Upper Tribunal in Basnet concluded that, where the respondent asserts an application was not accompanied by a fee and so was not valid, the respondent bears the burden of proving that fact. The Tribunal concluded on the facts of that case that the respondent had failed to discharge that burden. This led the Tribunal to conclude that the First-tier Tribunal had been wrong to find that Mr Basnet did not have a right of appeal to that Tribunal. The determination ends as follows:-

“35. The First-tier Tribunal erred in law, by applying the wrong test to whether there was a valid appeal. We remake the decision by finding that the onus was on the respondent to satisfy us that the application was not accompanied by the specified fee. The respondent has offered no evidence, or insufficient evidence, to that effect. On the available evidence, the application was accompanied by the specified fee, and was validly made. There was consequently a right of appeal to the First-tier Tribunal. It is not disputed that on the merits, the application for an extension of stay should have been granted, so the appeal, as originally brought to the First-tier Tribunal, is allowed. It will be for the respondent to decide what period of leave should be granted, in light of the appellant’s current circumstances.”

The fate of the present appeals turns on what the Upper Tribunal in Basnet intended by saying “the application was accompanied by the specified fee, and was validly made. There was consequently a right of appeal to the First-tier Tribunal.”

10. The scope of Basnet

38.     Mr Chhotu’s detailed grounds and skeleton argument in essence amount to the following submission; namely, that Basnet holds there is a right of appeal to the First-tier Tribunal against decisions of the respondent, such as those contained in the letters of 8 August and 27 October 2012, returning as allegedly invalid applications which are not considered by the respondent to comply with the requirements specified in the Immigration Rules (paragraphs 34-35E) and related legislation (such as the Immigration and Nationality (Fees) Regulations 2011).

39.     This submission faces fundamental difficulties. First, there is no indication in the Basnet determination that the Upper Tribunal treated the contents of the letter sent by the respondent on 16 June 2011, returning the application as invalid, as constituting an “immigration decision” within the definition in section 82(2) of the 2002 Act. Although the Upper Tribunal did not say so, the key element in Basnet which, crucially, is missing in the case of the present appellants, is that the respondent had refused the application in her decision of 3 August 2011, in response to the fresh application made by Mr Basnet on 22 June.

40.     As we have already observed, the Basnet decision of 3 August 2011 must have been expressed as a decision to refuse to grant leave to remain. As we can see from section 82(2), such a decision is not “an immigration decision” and so, on its face, cannot give rise to an appeal to the First-tier Tribunal under section 82(1). But because the respondent in Basnet failed to show on balance that the original application made on 13 May 2011 was invalid, section 3C of the 1971 Act applied so as to extend Mr Basnet’s leave until the decision taken on 3 August 2011

41.     Accordingly, the result of the Upper Tribunal’s finding that the application of 13 May was validly made was that the decision of 3 August 2011, which the respondent categorised as a refusal to grant leave to remain, (and so not carrying a right of appeal because it was not an immigration decision), was, in reality, a refusal to vary Mr Basnet’s leave to remain (where the result of the refusal was that he had no leave to enter or remain). That was an immigration decision carrying a right of appeal to the First-tier Tribunal: see section 82(2)(d). Despite Mr Chhotu’s submissions, we do not consider it arguable that the Basnetdetermination can be read in any other way.

42.     Sections 1 to 4 of the Immigration Act 1971 provide for the regulation and control of persons subject to that Act to be carried out by the respondent and her Immigration Officers. Section 3 (general provisions for regulation and control) makes provision for such control by means of the granting and refusal of leave to enter or remain the United Kingdom, either for a limited or an indefinite period. Section 3(3)(a) enables a person’s leave to be varied. Thus, a decision to refuse to grant leave and a decision to refuse to vary leave are both decisions within section 3.

43.     In Basnet, it was common ground that the respondent had made a decision, pursuant to section 3, refusing leave to remain in the United Kingdom. The fact that the respondent mistakenly thought that decision was one which did not fall within the definition of “immigration decision” in section 82(2) of the 2002 Act did not affect the fact that the decision was still a decision within the ambit of section 3.

44.     In the case of the present appellants, however, there has never been a decision under section 3, refusing them leave to remain. Instead of waiting for such a decision, the appellants decided to launch parallel judicial review and appellate challenges to the letters of 8 August and 27 October 2012.

45.     That point of difference with Basnet was identified by Ms Khan, the Home Office Presenting Officer who appeared before Judge Hawden-Beal. As recorded at paragraph 13 of the determination, Ms Khan:-

“submitted that there was no valid appeal before me to determine because there had been no immigration decision taken by the respondent and that the most appropriate venue for the validity of these applications to be determined was in the Administrative Court where the appellant(s) had an application for Judicial Review pending… She submitted that the case ofBASNET could be distinguished from this case because in that case the application had been rejected and then refused when resubmitted because the appellant had not got leave at the time the second application was made…”

46.     Judge Hawden-Beal effectively accepted that submission:-

“15. Having considered all of the submissions, the evidence and having read both Bundles relied upon, on the face of it, I am satisfied that the applications initially made on June 20th 2012 were valid. BUT this does not avail the appellants in this matter because an immigration decision has not been made which distinguishes this hearing from BASNET. In BASNET an application was rejected and then when it was re-submitted a decision was taken to refuse it without a right of appeal because, having no extant leave to remain the appellant did not have an established presence in the UK and as a consequence did not have sufficient funds to maintain himself. There was therefore an immigration decision made in BASNET, against which to appeal but there is none in this case.”

47.     Although, as we can see from our analysis, the thought expressed in the last sentence of paragraph 15 is somewhat compressed, Judge Hawden-Beal was unarguably right. In Basnet there was a decision as to leave, taken pursuant to section 3 of the 1971 Act, which because it was not proved to have been taken after the expiry of Mr Basnet’s original leave, could only be a refusal to vary that leave.

11. Were the letters of 6 August and 27 October 2011 refusal of leave decisions?

48.     Before us, Mr Chhotu submitted that the letters of 6 August and 27 October 2011 fell to be treated as refusals of leave. He said that those letters were, in effect, “rejections” of the appellants’ applications. Since the Oxford Dictionary (3rd Edition) defines “rejection” as “dismissing or refusing”, Mr Chhotu contended that the letters fell to be treated as refusals of leave. As a result, the present appeals fell to be treated in precisely the same way as Basnet. Given that Judge Hawden-Beal had stated in her determination that she was satisfied the respondent had not discharged the burden of showing the appellants’ applications were not accompanied by the specified fee, the same ultimate result in Basnet should follow. At least, permission to appeal Judge Hawden-Beal’s determination should be granted.

49.     We reject those submissions. They amount to an unwarranted attempt to expand the ratio of Basnet.In effectively treating a refusal of leave to remain as a variation refusal within the ambit of section 82(2)(d) of the 2002 Act, the Tribunal in Basnet took what might be said to be a somewhat bold approach. There is, however, an unbridgeable gulf between (a) treating one kind of section 3 decision as another kind of section 3 decision; and (b) treating as a section 3 decision a preliminary action or response of the respondent, such as rejecting or returning an application as invalid. Resort to dictionary definitions are, with respect, beside the point. The Immigration Rules, as approved by Parliament, permit the respondent to require applications for leave under the 1971 Act to comply with certain requirements (not least the payment of fees) before the respondent is required to make a decision under section 3 etc. The appellants’ submissions, if correct, would effectively destroy that distinction, with the result that the appellate jurisdiction of the First-tier Tribunal would expand beyond what Parliament contemplated, when passing the 2002 Act.

50.     By rejecting the appellants’ submissions, there is no danger of them or persons in their position being denied an effective remedy to challenge such preliminary actions or responses. In the present case, the appellants have commenced judicial review proceedings, which are currently adjourned awaiting the outcome of the appellate proceedings. In the light of our decision, the appellants may well wish to return to the Administrative Court. At this stage, they cannot be criticised for declining to submit a third application, given their position that their previous applications were valid. Likewise, the respondent cannot at this stage be criticised for not making a decision as to leave since, according to her, a valid application has not been made. Any legal resolution of that impasse lies in judicial review.

12. Decision

51.     Permission to appeal to the Upper Tribunal is hereby refused.

Signed Date

Upper Tribunal Judge Peter Lane

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