Terms & Conditions

[petedavies]

1…Claimant receives a negative immigration decision.
2…(Presumably) requests leave to appeal and is refused.
3…Applies for statutory review.
4…Statutory review is refused.
5…Applies for JR against refusal and succeeds.

My understanding is that the statutory review is a review of the decision not to grant leave to appeal.

So, (1) Is my understanding correct?
(2) At what point does HB entitlement end?

[petedavies]

Sorry to resurrect this one but I am getting desperate!

Can anyone out there help…….Please!!!!

[Anonymous]

Hello Pete. After our conversation about this yesterday I have been following up the rather tortuous amendments to the immigration appeals mechanism that have been implemented since 2002.

[b:7be574771f]The appeals system under the 1999 Act[/b:7be574771f]
Part IV of the Immigration and Asylum Act 1999 contains provisions for appeals, in particular s61 gives a right of appeal against variation or refusal to vary generally; and s69(2) gives a right of appeal against variation or refusal to vary by way of becoming an asylum seeker.

Schedule 4, para 17 says “while an appeal under section 61 or 69(2) is pending, the leave to which the appeal relates and any conditions subject to which it was granted continue to have effect.” s58(5) defines an appeals as being pending as long as there is still a further avenue open.

However, s115(9)(d) of the Act says that a person is subject to immigration control if their limited leave continues to have effect only by virtue of Sched 4.17.

[b:7be574771f]The case under discussion[/b:7be574771f]

On the face of it, the sequence of events that your first post describes would fall foul initially of s115(9)(a) (person requiring leave but not having it at the point when leave was varied or refused) and (d) thereafter (as soon as the appeal process was launched and while the appeal was pending at any level of the appeals procedure).

However, as you pointed out yesterday, the Nationality, Immigration and Asylum Act 2002 has changed things somewhat.

[b:7be574771f]The 2002 Act[/b:7be574771f]

I have been looking at the changes and I see that s161 of and Schedule 9 to the 2002 Act provide for much of the 1999 ASct to be repealed, including Part IV and Schedule 4. I traced the commencement order for those repeals and it seems they took effect on 1 April 2003 (SI 2003/754). What I could not find was any reference to a consequential amendment of s115(9)(d): it appears to be referring to provisions which no longer exist. Is this right? Does s115(9) still read the same way it always has?

I can only assume that the Interpretation Act is sufficient in these circumstances and that s115(9) should now be read as if it refers to the new appeals procedure. If that is correct, what does the new procedure have to say about appeals against variation/refusal to vary, in particular for how long are such appeals “pending”?

Well, sections 82 and 84 seem to provide for the same kind of appeals on the same kind of grounds so there are directly comparable rights of appeal to those ss61 and 69 of the 1999 Act that have been repealed.

Section 104 defines a “pending appeal” in much the same way that the 1999 Act defined it – from initial appeal right through to final exhaustion of all further avenues.

The thing I haven’t tracked down yet is whether there is an equivalent to the repealed Sched 4, para 17: leave continues to have effect while an appeal is pending. If that isn’t there, s115(9)(d) is no longer required.

[b:7be574771f]Conclusion[/b:7be574771f]

If it is possible to read s115(9)(d) as referring to the 2002 Act appeal provisions, and/or if the 2002 Act does not provide for leave to continue while an appeal is pending, then I think your claimant is a person subject to immigration control at every stage. If s115(9)(d) cannot be read as referring to equivalent provisions under the 2002 Act, then s115(9)(d) is otiose and there are in effect only three categories of person subject to immigration control. But this would only bring people back into HB entitlement if their leave is deemed to continue while an appeal is pending … and I haven’t found such a provision in the 2002 Act.

Finally, I see that there has been yet another immigration and asylum act in 2006, which further amends the 2002 appeal provisions. When I discovered this, I lost the will to live.

[Anonymous]

PS I have just noticed that the most recent edition of the CPAG Welfare Rights handbook only lists the first three categories of person subject to i/c in s115(9) – it no longer refers to the 115(9)(d) limb of the definition.

So I am starting to come to the conclusion that appeals under the 2002 Act do not extend leave, therefore a person pursuing such an appeal is liklely to be caught by s115(9)(a): requiring leave but not having it.

Still searching though

[petedavies]

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!

[Anonymous]

Thanks for researching that one Pete.

So in summary, there are two reasons for doubting whether s115(9)(d) continues to have any effect:

– first, it refers to provisions that have been repealed and have not been re-enacted in anywhere near a recognisable form. It’s impossible to read across to corresponding provisions in the new appeal structure

– second, even if it were possible to read across in that way, the deeming provision in the old appeal procedure is replaced by an actual real-life extension of leave in the new provisions – this is much stronger and therefore it is less easy for s115(9)(d) to override it.

If s115(9)(d) has had the rug pulled from under it by the 2002 Act, who gains?

It seems to me that the following claimants might now be entitled to remain on benefit:

– those who applied for an extension of leave but were refused
– those whose leave was curtailed on the Homee Secretary’s initiative
– in either case, they could be appealing on the merits of the decision under the immigration rules or they could be appealing by way of becoming an asylum seeker. These are the groups who were excluded under s115(9)(d) and who are arguabkly not excluded any longer.

It won’t help people who never had leave in the first place, including those who allowed their leave to expire before they applied for renewal. They’ll still be caught by s115(9)(a).

Should we be proud of ourselves for sleuthing this one out while the rest of the country apparently plum missed it? Or should we get out more?

[petedavies]

I think we are agreed on the interpretation and yes I think we both need to get out more!.

If almost hope we are missing something here.

If not, it is a major cause for concern (and a certain level of smugness!). Not so much because it has been missed up to now but the reasons (or my perception of them anyway) for it being missed. Legislation drafting is out of control!

There are too many S.I.s
Too many amendments (not to mention amendments to amendments to amendments)
Poor wording (Both in primary and secondary legislation)
Labarynthine routes from A to B.

In short, too many lawyers in Government!

[Author]

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