Akinola & Anor, R. (On the Application Of) v Upper Tribunal & Anor

Factual and Procedural Background

The Court considered three applications for permission to appeal, heard together in a rolled-up hearing, each concerning the interpretation and effect of section 3C of the Immigration Act 1971 as amended ("the 1971 Act"). The cases involve situations where an application for variation of existing immigration leave was refused by the Secretary of State, followed by either (i) an out-of-time appeal with an extension of time granted, or (ii) the Secretary of State withdrawing and/or reconsidering the decision. These issues arise in the context of applications under paragraph 276B of the Immigration Rules for indefinite leave to remain based on long residence, where the extension of leave under section 3C affects whether the applicants have accumulated the required 10 years of continuous lawful residence in the UK.

The three individual cases, anonymized as Applicant A, Applicant B, and Applicant C, each present factual complexities concerning the timing and effect of decisions, appeals, and reconsiderations relating to their immigration leave and applications for indefinite leave to remain.

Legal Issues Presented

1. What is the interpretation and effect of section 3C of the Immigration Act 1971 regarding the extension of immigration leave when an application for variation is refused, particularly in relation to:
1. The effect of an out-of-time appeal for which an extension of time is granted;
2. The effect of the Secretary of State withdrawing and/or reconsidering a refusal decision.
2. Whether leave under section 3C is extended continuously or can lapse and revive in the context of appeals and reconsiderations.
3. How these interpretations affect the calculation of continuous lawful residence for indefinite leave to remain under paragraph 276B of the Immigration Rules.
4. At what point in time an out-of-time appeal is "instituted" for the purposes of section 3C and related procedural rules.

Arguments of the Parties

Appellants' Arguments

• Section 3C leave should be extended continuously, including with retroactive effect, when an out-of-time appeal with an extension of time is granted, thus preventing gaps in lawful leave.
• The appeal out of time should be considered instituted when the notice of appeal is filed, not when the extension of time is granted, thereby affecting the calculation of continuous lawful residence.
• Withdrawal of a refusal decision by the Secretary of State, especially due to recognition of defects, should be treated as functionally equivalent to a court quashing the decision, causing the application not to be "decided" and thus maintaining extended leave under section 3C.

Secretary of State's Arguments

• Section 3C leave is extended only during periods when the application is pending or when an appeal is timely; leave cannot be retroactively revived once it has lapsed.
• An out-of-time appeal with an extension of time causes leave to revive only with future effect from the date the extension is granted, not retroactively.
• Withdrawal of a decision does not operate retrospectively to reverse the legal effect of the original decision; it only causes leave to revive from the date of withdrawal.
• Reconsiderations do not imply withdrawal of the original decision and do not affect the status of leave under section 3C.
• The Secretary of State exercises discretion to mitigate disadvantages arising from gaps in leave, including in cases of withdrawal or out-of-time appeals.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the legislative framework of section 3C of the Immigration Act 1971, which provides for the extension of leave pending a decision on a variation application and during appeal periods. The Court noted the purpose of section 3C is to protect applicants from becoming overstayers while their applications or appeals are pending, given the serious legal consequences of overstaying.

Regarding out-of-time appeals with extensions of time, the Court acknowledged a change in understanding following the Upper Tribunal decision in R (Ramshini), which held that section 3C leave can revive when such an appeal is pending. The Secretary of State accepted this approach but contended that the leave revives only prospectively from the date the extension is granted. The appellants argued for retroactive revival from the date when the notice of appeal was filed.

The Court found this to be a difficult question with linguistic and purposive tensions. Linguistically, the wording of section 3C suggests continuity of leave without gaps, but the phrase "during any period when" implies leave is extended only during discrete periods, not retroactively. Purposively, retroactive revival would better protect applicants from the consequences of overstaying. However, the Court concluded that clear legislative wording would be required to support retroactive effect, which is absent. Therefore, the Court sided with the Secretary of State's approach that leave revives only prospectively, accepting a gap in protection.

On the timing of when an out-of-time appeal is instituted, the Court rejected reliance on earlier case law under different rules (Erdogan) and held that the appeal is instituted at the date the notice of appeal is filed, not when the extension of time is granted. This creates a limited retroactive effect in that the appeal is pending from the filing date once the extension is granted.

Regarding withdrawal and reconsideration of decisions, the Court distinguished between judicial quashing of decisions, which nullifies the original decision and maintains leave continuously, and withdrawal by the Secretary of State, which does not operate retrospectively but causes leave to revive only from the date of withdrawal. Reconsiderations do not imply withdrawal and do not affect leave status. The Court rejected the argument that withdrawal is equivalent to quashing and held that the Secretary of State's approach is correct.

Applying these principles to the individual cases, the Court found that:

• Applicant A’s refusal decision was made before existing leave expired, so section 3C was not engaged and leave was not extended. Consequently, Applicant A did not meet the continuous lawful residence requirement.
• Applicant B’s reconsideration did not amount to withdrawal, so section 3C leave ended with the original refusal. Claimed variations were unsupported by evidence. The refusal of indefinite leave to remain was correct.
• Applicant C’s out-of-time appeal with extension caused leave to revive only prospectively from the appeal filing date, not retroactively, resulting in a gap in lawful leave. Applicant C did not meet the continuous lawful residence requirement.

Holding and Implications

The Court made the following decisions:

• Applicant A: Application for permission to appeal refused. The appeal has no prospect of success as section 3C was not engaged and the applicant did not meet the continuous lawful residence requirement.
• Applicant B: Permission to appeal granted on the issue of the effect of withdrawal/reconsideration on section 3C leave, but the substantive appeal dismissed. The Secretary of State’s position on withdrawal and reconsideration was upheld.
• Applicant C: Permission to appeal granted on the effect of an out-of-time appeal with extension on section 3C leave, but substantive appeal dismissed. Leave revives only prospectively, not retroactively, on such appeals.

The decision clarifies the interpretation of section 3C in complex procedural contexts involving out-of-time appeals and reconsiderations, affirming that leave may lapse and revive only prospectively, which may result in gaps in lawful residence. The Court recognized the potential unfairness but emphasized the absence of clear legislative language to support retroactive effect. The Secretary of State’s discretion to mitigate disadvantages arising from gaps remains important. No new precedent was established beyond clarification of the application of existing principles.