NM (No retrospective cancellation of leave) Zimbabwe [2007] UKAIT 00002

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Field House by video link                                     Date of Hearing: 4 October 2006
Promulgated on: 20 December 2006

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Chalkley

Between

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant:		Mr M Uddin, instructed by Blakemores Solicitors
For the Respondent:		Mr N Smart, Home Office Presenting Officer 

There appears to be no power under the Immigration Acts to cancel leave retrospectively, even if it has been obtained by deception.  Leave which has been granted and is current may be curtailed, but only with prospective effect.

DETERMINATION AND REASONS

1.	This is the reconsideration, at the instance of the respondent, of the appellant’s appeal against the decision of the respondent on 15 March 2006 refusing to grant him leave to remain in the United Kingdom.  The appellant is a citizen of Zimbabwe.  He is married to a student who has leave to remain here.  He too was granted leave as the spouse of a student.  That leave was extended in 2004 and was due to expire on 30 November 2005.  On 25 November 2005 he applied for a further extension under paragraph 76 of the Immigration Rules.  He received a response in the form of a Notice of Decision worded as follows:

“REFUSAL TO GRANT LEAVE TO REMAIN

Paragraph 322(2) of HC 395 (as amended)

	To [the appellant]

You applied for further leave to remain in the United Kingdom as the dependent spouse of a student but your application has been refused.

You have applied for leave to remain in the United Kingdom as the dependent spouse of … a student in the United Kingdom, but in view of the fact that you have provided a passport which has been altered in support of your application, the Secretary of State is satisfied that you have made false representations for the purpose of obtaining leave.  

You made an application on 25 November 2005.  However, as details have been altered in your passport this invalidates your previous period of leave you are not considered to have had valid leave at the time of your application.

There is no right of appeal against this decision.”

2.	Despite the final words of that notice, the appellant submitted a Notice of Appeal against the respondent’s decision.  He said that he had not altered his passport, and that, if he had, it was surprising that the respondent had previously granted him leave to remain on the strength of it and had indeed affixed a notice of that leave in the disputed passport.  The matter came before an Immigration Judge, who decided that there was no reason to think that the passport had been altered.  He therefore allowed the appellant’s appeal against the refusal to grant him further leave: he specifically found that the appellant met the requirements of paragraph 76 of the Immigration Rules.  

3.	The respondent seeks reconsideration on two grounds.  The first is that as the immigration decision was a refusal to grant leave to remain there is no appeal against it, and that the Immigration Judge therefore acted without jurisdiction.  The second is that in any event the Immigration Judge erred in allowing the appeal, because no evidence going to compliance with paragraph 76 of the Immigration Rules had ever been considered.

4.	We may say first that we are perfectly satisfied on the material before us, including a letter from the Embassy of the Republic of Zimbabwe, that there is no substance in the allegation that the appellant’s passport contains an unauthorised alteration or is anything other than a genuine document.  It is fair to say that the respondent does not challenge that part of the Immigration Judges’s determination.  The challenge to jurisdiction is more troublesome.  We heard extensive submissions from Mr Smart in support of the grounds.  We were not persuaded by them. 

5.	There is no doubt that the appellant had leave to remain expiring on 30 November 2005.  The Secretary of State had power to curtail that leave if he considered that false representations had been made for the purpose of obtaining it.  That power is in paragraph 323(i) of the Immigration Rules, which makes reference to paragraph 322(2).  Until the leave is curtailed, however, it remains in force.  The Rules give no power to cancel leave retrospectively.  This, then, is the first problem for the respondent.  Neither paragraph 322(2), which he invoked, nor any other part of the Immigration Rules, enable him to treat the appellant’s application as made at a time when he had no leave.  At the time the appellant made the application he had leave, and no subsequent decision of the respondent could change that fact.  

6.	The consequence is that, by making his application, the appellant obtained the benefits of s3C of the Immigration Act 1971.  His leave continued until a decision was made on his spouse application, and continued or continues further during the time for bringing any appeal against that decision, or during the time when any such appeal is pending.  That means that, on 15 March 2006, when the decision in question here was made, the appellant still had leave.  

7.	Given the terms of the Notice of Refusal, it is clear that the respondent intended to exercise whatever powers he had to terminate the appellant’s leave.  As we have explained, he could do that only prospectively.  It follows that so far as the appellant’s current leave is concerned, the notice of 15 March 2006 must have been intended to curtail it so as to end on that date.  Here, however, is the second problem for the respondent.  A decision to curtail a person’s leave (that is to say, a decision to vary his leave in such a way that when the variation takes effect he has no leave) is a decision which is appealable under s82(1)(e) of the 2002 Act.  And any decision which is appealable has to be notified in the manner required by the Immigration (Notices) Regulations 2003 (SI 650/2003).  The notice of 15 March 2006 does not comply with those regulations, because so far from indicating what the rights of appeal are, it alleges that there is no right of appeal.

8.	The regulations are meant to be for the benefit of prospective appellants, and so, as the Tribunal has remarked on a number of occasions, they may be waived by the giving of a Notice of Appeal even in response to a Notice of Decision which says there is no right of appeal.  That is what the appellant did in the present case, alleging in the grounds that the basis upon which the Secretary of State had sought to reconsider (to use a neutral word) a grant of leave to him was erroneous in fact.  The Immigration Judge clearly had jurisdiction to hear that appeal.  In his determination he found that the appellant had not altered his passport.  He concluded that the respondent had not made out the requirements of paragraph 322(2) (which contains the only relevant substantive condition to which reference is made in paragraph 323(i)) and that therefore the appellant had made his spouse application during the currency of existing leave.  Although the Immigration Judge was no doubt rather confused by the respondent’s attempts to do things he had no power to do, it appears to us that the determination is sufficient to deal with that issue.  

9.	As we have explained, nothing could alter the fact that the appellant had leave to remain at the time when he made his application for further leave.  The effect of the Immigration Judge’s determination is that, instead of the appellant’s s3C leave terminating on 15 March 2006, it continues or continued for the period limited by s3C. 

10.	The appellant’s substantive application was for leave to remain as the spouse of a student.  The notice of 15 March 2006 does not purport to deal with that application on its merits.  It purports instead to refuse it on the ground that it was made at a time when the appellant had no current leave.  It further purports to refuse to grant leave (a decision which, we agree, would not be appealable) and fails to deal with the application to extend leave (a refusal of which would be appealable).  As the appellant had leave at the time when he made his application, a refusal to make a grant of leave to him as a person who had no current leave is entirely inappropriate.  

11.	The Immigration Judge ought not to have concluded that all the requirements of paragraph 76 are met.  There has been no consideration of them by the Secretary of State, and it may not be right to say that they are not contested.  But the real problem is that, in our view, there has never been any valid decision on the spouse application.  That of itself would deprive the Immigration Judge of jurisdiction to hear an appeal against such a decision.  The Secretary of State purported to make a decision which he could not make, and he has failed to make the decision that he ought to have made.  The in-time spouse application is still undecided.

12.	For the foregoing reasons we take the view that the Immigration Judge materially erred in law.  We substitute a determination allowing the appellant’s appeal against the curtailment of his leave only.  The appellant’s original application, which began the present process, is still outstanding before the Secretary of State awaiting decision.  The appellant has his leave under s3C in the meantime.   

C M G OCKELTON
DEPUTY PRESIDENT
          Date: