The Court of Appeal deals with Paragraph 39E of the Immigration Rules, discretion and service of decisions

The Court of Appeal deals with Paragraph 39E of the Immigration Rules, discretion and service of decisions


CategoryNews Author Zane Malik QC Date

The Court of Appeal (King LJ, Lewis LJ and Elisabeth Laing LJ) has handed down its judgment in Kalsi v Secretary of State for the Home Department [2021] EWCA Civ 184.

The Appellant, Mr Kalsi, had made three successive applications for leave to remain in the United Kingdom. The first application was made before expiry of his leave to remain. The second application was made within 14 days of overstaying. The third application was made after 14 days of overstaying but within 14 days of the service of the administrative review decision as to the second application. The refusal of the third application gave raise to these proceedings. The primary issue before the Court of Appeal was whether Paragraph 39E of the Immigration Rules applied to the third application or was that application bound to fail on the grounds of overstaying.

The Court of Appeal, at [67], held that Paragraph 39E of the Immigration Rules did not apply to the third application for two reasons. “First, when A made application 3, he had been an overstayer for some four months. Application 3 ‘followed’ application 2. Application 2 was not made ‘in-time’ (see the previous paragraph). Application 3 was not, therefore, an application made ‘following the refusal of a previous application for leave which was made in-time’ for the purposes of paragraph 39E(2)(a). Second, the reference to ‘the previous application for leave’ in paragraph 39E(2)(b)(i) can only, in this context, be a reference to the ‘previous for application for leave which was made in-time’ in paragraph 39E(2)(a). Application 3 was not made within 14 days of the end of the decision-making process in relation to ‘the refusal of the previous application for leave’, that is, a previous application for leave which was made in time.”

The Court of Appeal also held, at [69], that “the only discretion conferred by paragraph 39E is conferred by paragraph 39E(1). That is not, in any event, a discretion to extend the 14-day period, but a discretion to accept an application made within the 14-day period, if the Secretary of State considers that there was a good reason, beyond the control of the applicant or their representative why the application could not be made in time”. The Court of Appeal held that the Secretary of State was not required to grant leave to remain to the Appellant in these circumstances.

The Court of Appeal further held that the third application was made within 14 days of the service of the administrative review decision as to the second application, but this, on the proper construction of Paragraph 39E of the Immigration Rules, could not assist the Appellant.

The Court of Appeal, accordingly, dismissed the Appellant’s appeal.

Zane Malik appeared for the Respondent, the Secretary of State for the Home Department.

The Court of Appeal’s full judgment is available here


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