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Can you make a new application while awaiting outcome of another application or appeal?

The word “hopeless” appears five times in the determination of R (on the application of Rashid) v Secretary of State for the Home Department IJR [2015] UKUT 190 (IAC). While the judge remains fairly cool she was clearly irritated with Counsel. Much of the case is devoted to salvaging some sense from the proliferating grounds or traversing territory that is already well known, but there is something new to take away. New to me, at any rate.

The leading case on when or if a person can make a new application while they are awaiting an outcome on an existing application or appeal is JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. You can read the short Free Movement write up from 2009 here. The Home Office will not accept applications to extend leave made more than 28 days in advance of a person’s existing leave expiring. But the same Home Office often takes longer than 28 days to make a decision, which means that a person’s existing leave appears to have expired in the meantime. Worse, if the decision is a refusal and the person has to appeal, that can take many, many months, during which time the person’s passport will appear to show they have overstayed.

This problem is partially resolved by section 3C of the Immigration Act 1971. This automatically extends a person’s leave while a valid application is being decided and/or an appeal is being pursued. The person is not an overstayer, although it might be difficult to persuade a landlord, employer or future immigration officer that this is so.

In JH (Zimbabwe) the issue arising was whether a person could make a different sort of immigration application while he or she was awaiting the outcome of his or her existing application or appeal and his or her leave was extended by section 3C. The problem lay in reconciling the potentially contradictory subsections to section 3C of the Immigration Act 1971 at (4) and (5):

(1) This section applies if—

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave…

(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

Essentially, the Court of Appeal held that an immigration application can be varied to a different sort of immigration application at any time up to the point of decision by the Home Office. After a decision is made, no variation is then possible.

Separately to JH (Zimbabwe), under the old appeal regime if an appeal is available and is pursued, it was sometimes possible to add new grounds of appeal using the mechanism of a section 120 notice. The cases governing whether the grounds can be varied are AS (Afghanistan) v SSHD [2009] EWCA Civ 1076 and Lamichhane v SSHD [2012] EWCA Civ 260. Lawyers should note that the new amended section 85 has changed the statutory landscape here and that section 120 has been amended by the Immigration Act 2014 and now imposes on ongoing duty to keep the Home Office informed of all relevant grounds: read more in the Immigration Act 2014 ebook if you need to.

Returning to Rashid, though, the applicant attempted to argue, amongst other things, that it was possible to make a new immigration application at a time after the Upper Tribunal had issued a determination but before the time limit had expired for pursuing an appeal to the Court of Appeal.

Applying JH (Zimbabwe), the Upper Tribunal held that it was not possible for a new application to made at that time because section 3C leave continues until the deadline for lodging an appeal has expired. A person who loses their appeal and wishes to make a new application will therefore need to wait until the time limit for lodging an appeal has passed, otherwise the application will be invalid.

The 28 days grace period in the Immigration Rules for making new applications begins when the section 3C leave expires, so there is no procedural disadvantage thereby imposed.

This does not apply, though, where a person withdraws their appeal. There is no time limit for appealing in such circumstances, and further section 104 of the 2002 Act made specific provision for an appeal to be deemed no longer ongoing once it was withdrawn.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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