Immigration application made during visa expiry grace period is not “in time”

When is an immigration application made “in time”? Does it need to be submitted before the expiry of the applicant’s visa? Or is an application made after the visa expires, but within the grace period permitted under the Immigration Rules, also “in time”?

This is the issue considered by the Court of Appeal in Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357.

The court confirmed that an application is only in time if it is submitted before the date of expiry of the person’s visa (in the court’s more technical language, their “leave to remain”). The effect of the decision is to prevent people from relying on the relevant grace period twice.

Grace periods for late applications

The context is paragraph 39E(2) of the Immigration Rules. This allows the Home Office to consider an application that is lodged after the refusal of an “in time” application (providing that it is submitted within 14 days of the refusal, or conclusion of any appeal or admin review).

Mr Ali was effectively trying to use this grace period twice. He first applied to extend his permission to be in the UK before it expired, and was refused. He applied a second time, within the grace period, and was refused again. 

To try to get the application considered a third time, Mr Ali argued that an application submitted within the grace period was itself in time, as it was within the time limit provided by the Immigration Rules. The Upper Tribunal agreed.

The Home Office appealed, arguing that the Upper Tribunal’s…

… approach undermines the overall scheme of paragraphs 245DD(g) and 39E of the Immigration Rules by allowing Mr Ali to have a third bite of the cherry and undermines the purpose of placing greater rigour on the aim of discouraging overstaying.

The Court of Appeal agreed, reversing the decision of the Upper Tribunal:

Read in context and in light of the other paragraphs, the reference to “in-time” applications is to applications made before the expiry of the deadline for making a valid application, namely the expiry of existing leave (including where applicable, as extended by 3C leave).

So you only get two bites of the cherry, not three. If you apply to extend your visa and the application is refused, you can apply again within 14 days, but not a third time if that second application is refused.

Haven’t we been here before?

This case is similar to Kalsi & Ors v Secretary of State for the Home Department [2021] EWCA Civ 184.

In Kalsi, the Court of Appeal decided that paragraph 39E could only be relied on once: again, it allows for a second bite of the cherry, but not a third.

But the applications in that case all came after the introduction of paragraph 39E, in November 2016. Before that, there had been a 28-day grace period. Mr Ali argued that his case was different as his second application was made before the rules changed.

The Court of Appeal did not accept that the 28-day rule extended the deadline for making an application:

The 28 day period could have been, but was not, expressed as extending the deadline for an application for leave that would be considered on its merits. That period expressly remained a period of overstaying with all the consequences attached to that. In that regard, it operated differently from section 3C of the 1971 Act: section 3C automatically extended a person’s leave to remain in the circumstances identified, whereas the 28 day period was expressed to be a relatively short period of overstaying after expiry of leave, that would exceptionally be disregarded notwithstanding the breach of immigration laws.

This case is a consequence of the Home Office’s cognitive dissonance when it comes to visa expiry dates. Late applications are permitted within tightly defined parameters. But this does not change the fact that the person is an overstayer and has no right to remain in the UK. You are simultaneously in the UK in breach of the Immigration Rules, and making an application permitted under those very same Rules.

This leads to a simple phrase such as “in time” being open to interpretation, with Upper Tribunal and Court of Appeal judges disagreeing on what it means.

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