Reply To: Immigration/Statutory review

#8497
petedavies
Participant

Peter:
Thanks for the detailed posting. I have probably lost the plot completely having come to about 20 different conclusions but:

from s118 of the 2002 Act came a new s3C of the 1971 Immigration Act:
[i:bfafb32783]
[(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,
(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(a) the application for variation is neither decided nor withdrawn,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[, 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).[/i:bfafb32783]

(I think) that this means that, after a decision has been made, the leave is extended whilst there is an (in-time) right of appeal (para 2(b)) and subsequently extended if the appeal is pending.

If I’m correct so far (no great confidence here!) then the question comes down to whether 115(9)(d) applies. I (within even less confidence!!!) suspect not.

First, the wording is different: The old wording was along the lines that the leave continues to have effect. The new wording is that the leave is extended. I think in the first instance the leave itself has ceased to exist but everyone acts as if it had not. The latter wording, to me, implies that the the leave continues to exist until one of a number of events lead to its destruction.

Second, the statute will not make sense. An adverse decision is made. Leave is extended under the provisions of 2(b). An appeal is then made and the extension destroyed – end result being a person who accepted the result could continue to claim until the right of appeal had expired whilst a person wishing to appeal would lose out as soon as they appealed.

I have a dentist’s appointment this afternoon and am actually looking forard to it – a breeze in comparison to this!