Tribunal decisions

The decision

Asylum and Immigration Tribunal

SA (Work permit refusal not appealable) Ghana [2007] UKAIT 00006

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 30 October 2006
On 10 January 2007

Before

SENIOR IMMIGRATION JUDGE WARR

Between

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Nana Amfo, Solicitor with Cedars & Co. Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

An appeal does not lie against the refusal to issue a work permit and an application for a work permit does not cause an applicant’s leave to be extended. A further application made for leave to remain made after the refusal of the work permit application will not attract a right of appeal against the refusal if the appellant has no current leave.

DETERMINATION AND REASONS

1. The appellant is a citizen of Ghana born on 4 August 1976. He appeals the decision by the Secretary of State to refuse leave to remain as a student under paragraph 62 of HC 395 on 17 November 2005. His appeal came before Immigration Judge Strowger on 27 January 2006. The Immigration Judge allowed the appeal. The Secretary of State applied for an order for reconsideration which was granted on 21 February 2006. The principal ground was that there was no jurisdiction to hear the appeal at all as the appellant had applied out of time for leave to remain as a student.

2. The appellant arrived in this country on 17 February 2002 and had a student visa which permitted him to remain until 30 April 2003. He was enrolled on a BSc. Course in computing at St Patrick’s International College. He was employed part time with Circle Five International Ltd., a software company. The Immigration Judge dealt with the facts and the jurisdictional issues in the following extract from his determination:

“10. On 22 April 2003 (a week before his visa expired, but after he had completed his course), Circle Five applied for a work permit having taken the view that he would be of value to the company in the light of his part time work for them. Meanwhile the appellant remained in the country, notwithstanding the expiry of his student visa, and, indeed, his own evidence is that he had been accepted on an MSc programme in Software Solutions and he started on this course in June 2003. It would appear that he continued doing some part time work with Circle Five during this period. The appellant’s evidence is that he did not apply for a variation to extend his stay as a student because at that time he did not have his passport. This was ill advised. He could have submitted an application before his student visa expired in April, with the passport to follow. In the event the application by Circle Five was only a week before the expiry of his visa.

11. On 25 June 2003 UK Work Permits refused Circle Five’s application saying that it did not meet requirements for the issue of a work permit (see 24 of the appellant’s bundle). This letter was addressed to Mr Thananchayan of Circle Five international Ltd. Another identical refusal letter under the same reference was issued on 2 August 2004. The letters tell the company to inform the appellant. To add to the confusion, the HOPO found in her file a Notice of Refusal addressed to the appellant dated 4 August 2003 refusing Circle Five’s application on his behalf for leave to remain as a work permit holder. In the appellant’s bundle at 30 is a ‘To whom it may concern’ letter dated 27 January 2005 from Circle Five stating that they applied for a full time work permit for the appellant on 22 April 2003 and the letter goes on to say ‘as far as we are aware it was an ongoing application until it was eventually refused and withdrawn in the letter dated December 2004’. No copy of this letter has been produced.

12. The fact is that from 30 April 2003 the appellant has remained in the United Kingdom as a student but without any leave to study here. The question has arisen as to whether there is any right of appeal. The HOPO submitted that no such right arose under section 82(2)(e) of the 2002 Act because the appellant had no leave to remain at the time of making his application. The position with regard to this is by no means clear. In MacDonald’s Immigration Law and Practice, at page 1181 footnote 6, the view is expressed that ‘the probable answer, however, is that no right of appeal accrues if leave had already expired before the application to vary was made, since (i) the term ‘variation’ suggests that there must be an extant leave to vary, and (ii) if leave had already expired by the date of the application, the absence of leave is not the result of the refusal, which the section requires’. My attention was not, however, drawn to any relevant case law on this particular point or any definitive authority on that point. I take the view that the Home Office is in a weak position to maintain that there is no valid appeal. There is a letter at page 19 of the bundle from the Home Office dated 22 January 2004 to the appellant’s solicitors, Sri and Co, ‘writing to inform of progress of the application’. The Home Office were, therefore, accepting that there was a valid application at that stage. It was also obvious that they were making no progress in dealing with it and certainly not meeting the declared target of 13 weeks – the application had been received some 14 months before but nothing had been done about it. The application had been made on 25 November 2003 with the accompanying letter from the solicitors of the same date. There was a chase-up letter from Sri and Co sent recorded delivery, on 27 July 2004, setting out changes in the appellant’s circumstances and the course that he was now following. The letter requested that the Home Office deal with the application urgently. This request was to no avail – there was no response from the respondent even from the chasing email from the appellant some 10 months later, dated 28 April 2005. Indeed there was no response until the Home Office wrote on 7 November 2005 (no copy was included amongst my papers) and the refusal of 17 November 2005 – some two years after the application was submitted. In the meantime the appellant had submitted a formal complaint.

13. The refusal also told the appellant that he could appeal against the decision. It incidentally contains the error of referring to the expiry of his visa being 17 February 2003 (whereas it was 30 April 2003) and refers to him enrolling at a new college which was not, in fact, the case.

14. The Home Office do not emerge from this case with flying colours. Not only has there been unacceptable delay in dealing with the appellant’s application for variation of his leave to remain as a student, but also the refusal clearly indicated to him that he had a right of appeal. The appellant has not been free from blame. He should have applied for extension of leave well before the expiry of his visa in April 2003.

15. In the circumstances I find that as the effect of section 82(2)(e) of the 2002 Act is unclear as to the right of appeal, and that even as eminent authority as MacDonald indicates uncertainty as to the present position, it would not be appropriate to deny the appellant the right of appeal against the refusal and I find he has such a right.

16. I accept the appellant’s explanation (and given the information provided by the college) of the circumstances surrounding the cancellation of his course in Autumn 2003 and the ensuing complication of his medical problem that led to him not starting the further course until June 2004. He has now almost completed his studies in the United Kingdom. The information provided by the college indicates that the appellant meets the requirements for a variation of his leave under paragraph 60 of the rules with regard to progress in his studies. I also find from the updated information provided by his father as to his financial ability and willingness to support the appellant - together with the transfers of monies indicated from the appellant’s bank account – that he can be maintained and accommodated for the remainder of his stay in the United Kingdom without recourse to public funds (and there being no evidence that he has been in receipt of such funds since he came to the United Kingdom in February 2002).

17. I find on the balance of probabilities the appellant does meet the requirements of the rules – and is very near to finishing his course and thereafter leaving the United Kingdom. I find the decision of the respondent appealed against is not in accordance with the law and the applicable Immigration Rules. In the circumstances I allow the appeal.”

3. Mr Tarlow submitted that after the expiry of his first student visa the company had applied for a work permit on his behalf. The appellant had not applied for an extension of his student visa. At the time when he made his application he had no leave to vary. It was to be noted that even if he had succeeded in getting a work permit he would still have needed an entry clearance. By virtue of the operation of the statute he had no appeal. The fact that the Home Office had incorrectly advised the appellant that he had a right of appeal did not confer jurisdiction on the Tribunal. Under Section 82(2)(e) immigration decision is defined as “variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain…”. The application for a work permit was not an application for leave to remain.

4. Ms Amfo stated that the appellant was now on another course. He was awaiting a certificate in respect of his previous course. His new course was due to be completed in September 2007. The appellant had suffered because if he had been properly advised he would have been in a position to take a decision earlier. She submitted there was a right of appeal. While a work permit was not equivalent to the grant of leave to remain there was a pending application and ongoing correspondence and the appellant was not in breach of the law. She agreed that Section 82(2)(e) of the 2002 Act applied. However, the appellant had had leave at the time by virtue of his pending application. I referred the representatives to Section 3C of the 1971 Act. Mr Tarlow submitted that rule 32 of the HC 395 applied and submitted that the application that had been made was not valid.

5. At the conclusion of the submissions I reserved my determination. I have carefully considered the material before me. I note that the Immigration Judge dealt with the appeal on the basis that the appellant was very near to finishing his course and thereafter leaving the United Kingdom – see paragraph 17 of the determination. The Immigration Judge was dealing with the matter in January 2006. The appellant had not left the United Kingdom and appears to have no intention to do so before the expiry of his present course in September 2007. It was submitted that the appellant was prejudiced by the delays and inefficiencies of the Home Office in this matter. However, I see no evidence of prejudice. The delays have enabled the appellant to pursue his course and now embark on another one.

6. The only question before the Tribunal is the question of jurisdiction. The fact that the Home Office indicated that the appellant had a right of appeal is neither here nor there. If he had no such right there is no jurisdiction to entertain the appeal.

7. It is common ground that the appellant applied in time for a work permit. Both parties referred me to Section 82(2)(e) of the 2002 Act where immigration decision is defined as meaning “variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain…”. Mr Tarlow’s primary submission was that an application for a work permit did not fall within Section 82(2)(e). The grant of a work permit did not have an effect on a person’s leave. It was akin to a condition precedent to an application for leave to enter from overseas. It is clear from the requirements of HC 395 (see paragraphs 128(ff)) that an entry clearance is required to undertake work permit employment except in the circumstances certified in paragraphs 131A to 131G and no submissions were made to me that any of those paragraphs applied to the appellant.

8. There is another route to establishing the question of jurisdiction which I raised at the hearing, that is through the operation of Section 3C of the Immigration Act 1971. It was argued by Ms Amfo that the appellant had a pending application and accordingly he had leave and so there was jurisdiction to entertain his application for an extension of stay as a student. The problem with this submission is Section 3C itself. It is true that this section does operate to extend a person’s leave but only in certain circumstances and for certain purposes. Section 3C is as follows:

“3C. Continuation of leave pending variation decision

(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 leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when –
(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 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 is pending (within the meaning of section 104 of that Act).

(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

(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).

(6) In this section a reference to an application being decided is a reference to notice of the decision being given in accordance with the regulations under section 104 of that Act (notice of immigration decision).”

This section is subject to amendments made by the 2006 Act but they are not relevant to this appeal. The first problem is that under Section 3C(2)(b) an appeal could not be brought against the decision – assuming it had been adverse – to refuse to issue a work permit. But even if it had been an appealable decision, Section 3C(4) prevents an application for variation of leave to enter or remain being made while the section operates to extend the leave. I am not satisfied that it is arguable (and it was not argued) that the appellant varied an existing application. It was a completely different application.

9. In my view the operation of the statute is quite clear in this case. The appellant made an application in time for a work permit. That application did not trigger the operation of Section 3C of the 1971 Act for the reasons I have outlined. It was not an application which gave rise to an appealable decision. The application made by the appellant for leave to remain as a student was made at a time when he had no leave. He had no leave to vary and accordingly his case did not fall within Section 82(2). I should observe that although both parties referred me to Section 82(2)(e), Section 82(2)(d) would appear to be the appropriate reference – “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…”, However it makes no difference. In both cases the applicant has to have a leave to vary. Mr Tarlow offered a further argument based on rule 32 of HC 395 which requires any application to be made to the Home Office before the applicant’s current leave to enter or remain expires and specifies how applications are to be made and that applications made in any other way are not valid. The first paragraph of the rule simply reflects the statutory provisions that I have outlined. The operation of the statute appears quite clear in this case for the reasons I have given.

10. For the reasons I have set out the appellant has no right of appeal in this matter. The Immigration Judge was wrong to decide otherwise.

11. Insofar as it is necessary to do so, I substitute a fresh decision:

This purported appeal is dismissed for want of jurisdiction.

Signed Date 8 January 2007

Senior Immigration Judge Warr