Section 3C leave is not there to get people to ten years’ lawful residence

Marepally v Secretary of State for the Home Department  EWCA Civ 855 is yet another long residence case, this time concerning a defective refusal notice. The appellant wanted to rely on the defect to argue that he had achieved ten years’ continuous lawful residence in the UK by operation of section 3C of the Immigration Act 1971. The Court of Appeal found that he had fallen a few weeks (if not a few years) short, and noted in passing that “the purpose of section 3C… is not to enable persons to be able to rely on continuations of leave for the purpose of building up 10 years’ continuous lawful residence”.

Facts

The background to the case is somewhat complex and at times uncertain, with errors by one party or other at every turn.

Mr Marepally is a citizen of India who came to the UK in February 2009. Various immigration troubles ensued, including a successful appeal against refusal of permission to stay as a student. The relevant decision for the purposes of this case came in January 2017, when Mr Marepally applied for permission to stay as a temporary worker. The Home Office refused the application but, crucially, failed to inform him that he had a right of appeal. The refusal of his temporary worker application was finalised on 12 May 2017.

Mr Marepally applied for judicial review, arguing that the decision refusing him permission was unlawful and irrational. Permission was refused, with the Upper Tribunal finding that whatever errors the decision might have contained, “it is… inevitable that the decision would be the same if it were remade”.

He then lodged a private life application which the Home Office refused on the ground that refusal did not constitute a breach of his European Convention rights and referred to his permission as having ended on 21 January 2014. The claim was certified as clearly unfounded, meaning that he could only appeal against the refusal from abroad.

Finally, on 25 January 2019, Mr Marepally lodged an application for permission to stay on the basis of long residence, which he later varied to an application for settlement on the same basis. The Home Office turned him down. This time, the decision letter claimed he had had no permission since 2017 but either way, concluded that he had not accrued ten years’ continuous lawful residence.

Historic injustice?

The thrust of Mr Marepally’s appeal was that he had permission until 12 May 2017 and that the break in his permission after that should be disregarded because of a “historic injustice”: that he was not notified of his right of appeal against the refusal of his temporary worker application.

The First-tier Tribunal dismissed the appeal on the basis that Mr Marepally had challenged that decision by way of an unsuccessful judicial review. The Upper Tribunal also found for the Home Office, but mistakenly thought that Mr Marepally had appealed against the temporary worker refusal, thus “waiving the procedural irregularity”. In fact, as the Court of Appeal pointed out, it was an earlier decision on permission to stay as a student that he had appealed.

Much ado about nothing

The Court of Appeal decision effectively comes down to a single point:

Even if [Mr Marepally’s lawyer] were correct, and the application of… January 2017 had not been determined, he accepts that that application was varied by the application made on 18 May 2018 for leave to remain to be granted on human rights grounds. That application was decided and a notice of decision sent in January 2019. That notice did provide the reasons and informed the appellant of his right of appeal. On any analysis that decision complied with all the requirements of regulation 5 of the [Immigration (Notices) Regulations 2003]. Any leave had come to an end and was not continued under section 3C before the appellant had completed 10 years’ continuous lawful residence… The fundamental fact is that the appellant did not have 10 years’ continuous lawful residence on 21 February 2019 and did not meet the requirements for the grant of indefinite leave.

In this case, the court found that Mr Marepally had not suffered an injustice as a result of the failure to inform him about his right to appeal the temporary worker refusal because he was not seeking to appeal that decision now. Instead he was trying to “benefit from the fact… as a means of trying to keep any previous leave to remain in existence in order to accumulate further periods of lawful leave” and rack up ten years of lawful residence. That, the court said, is not what section 3C leave is for.

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