LEAVE TO REMAIN: R (AKINOLA) V UPPER TRIBUNAL (SECRETARY OF STATE FOR THE HOME DEPARTMENT INTERESTED PARTY)  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“(a) the application for variation is neither decided nor withdrawn,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  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:
“. 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.
. 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…
. The UT in Ramshini, citing R (Erdogan) v Secretary of State for the Home Department  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.
. 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  EWHC 3161 (Admin), Collins J noted at  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”.
. 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 (instructed by Victor Nwosu of Dylan Conrad Kreole) for Ms Akinola
Russell Wilcox and Anas Khan (instructed by Thompson & Co) for Mr Abbas
Benjamin Hawkin (instructed by Paul John & Co) for Mr Alam
Lisa Giovanetti QC and Ben Keith (instructed by the Government Legal Service) for the Secretary of State
The Upper Tribunal did not appear and was not represented
Hearing dates: 13-14 July 2021