Basir, R (On the Application Of) v Secretary of State for the Home Department, Court of Appeal - Civil Division, November 23, 2018, [2018] EWCA Civ 2612

Resolution Date:November 23, 2018
Issuing Organization:Civil Division
Actores:Basir, R (On the Application Of) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWCA Civ 2612

Case No: C7/2016/1403

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE FREEMAN

JR74942014

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23/11/2018

Before:

LORD JUSTICE McCOMBE

LADY JUSTICE KING DBE

and

LADY JUSTICE NICOLA DAVIES DBE

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Between:

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Zane Malik (instructed by Mayfair Solicitors) for the Appellant

Jack Anderson (instructed by Government Legal Department) for the Respondent

Hearing date: 8 November 2018

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Lady Justice Nicola Davies DBE:

  1. This is an appeal from the decision of the Upper Tribunal (``UT'') promulgated on 3 March 2016. The UT dismissed the appellant's claim for judicial review seeking to challenge the decision of the Secretary of State for the Home Department (``SSHD'') of 17 March 2014 refusing his application for further leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant. Permission to appeal has been granted.

    Factual background

  2. The appellant is a citizen of Pakistan, born on 26 November 1981. He was granted leave to enter the United Kingdom as a student on 7 February 2005 until 30 March 2006. Further periods of leave to remain as a student were granted which ended on 31 December 2010. On 15 January 2011 the appellant was granted further leave to remain as a Tier 1 (Post-Study Work) Migrant until 15 January 2013.

  3. The appellant made an application for further leave to remain as a Tier 1 (Entrepreneur) Migrant on 19 December 2012. The SSHD refused that application on 8 May 2013; it was served on 15 May 2013. It is accepted by the parties that an application is decided when it is served. The appellant had until 24 May 2013 to appeal against the refusal, no appeal was instituted. The appellant then made a further application for leave to remain as a Tier 1 (Entrepreneur) Migrant on 22 May 2013. At the time he made the application the appellant was on leave extended under section 3C(2)(b) of the Immigration Act 1971 (``the 1971 Act''). The SSHD determined the application on its merits. It was refused on 18 June 2013 and the decision was served on 24 June 2013.

  4. The appellant made another application for further leave to remain as a Tier 1 (Entrepreneur) Migrant on 11 July 2013. The SSHD refused that application on 17 March 2014. The SSHD gave two reasons for that decision:

    i) The appellant had overstayed in the United Kingdom for more than 28 days;

    ii) The appellant had not established that he was a genuine entrepreneur.

    In refusing the SSHD stated:

    ``Although your leave to remain expired on 15 January 2013 your leave was extended under section 3C of the Immigration Act 1971 until 24 May 2013. You did not submit this application for leave to remain until 11 July 2013. This was more than 28 days after your previous leave was extended by virtue of section 3C of Immigration Act 1971. In light of this the Secretary of State had deemed that refusal is appropriate under paragraph 245DD(g). You do not, therefore, meet the requirements specified in the Immigration Rules in order to be granted leave under the Tier 1 (entrepreneur) category.''

    The refusal decision made no reference to the second application made on 22 May 2013.

  5. The appellant sent a pre-action protocol letter to the SSHD on 28 April 2014. The SSHD responded to that letter and maintained his decision on 12 May 2014. The appellant issued the judicial review proceedings advancing two principal grounds before the UT:

    i) The SSHD had erred in law in holding that he had overstayed for more than 28 days;

    ii) The SSHD's conclusion that he had not established that he was a genuine entrepreneur was unfair and irrational.

    The UT ruled against the appellant in relation to the first ground and, in the circumstances, did not find it necessary to consider and determine the second ground. In summary the UT held:

    ``18. ... the Secretary of State in her final decision was fully entitled to take the view that the 22 May application had been invalid, as made by someone with s3C(2) leave only, and its invalidity could not be cured by the form of the 18 June...

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