The Court of Appeal's judgment on meaning of "in-time" in Rule 39E

The Court of Appeal (Lady Justice Simler, Lord Justice Arnold and Lady Justice Andrews) has handed down its judgment in Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357.

Of all the significant phrases in immigration law, few are more frequently deployed in practice than the requirement to make what is described as "in-time" applications for leave to remain. The issue in this appeal concerned proper construction of this phrase as used in Paragraph 39E(2) of the Immigration Rules.

On the application for Judicial Review brought by Mr Waqar Ali against the decision made by the Secretary of State for the Home Department to refuse his application for leave to remain as a Tier 1 (Entrepreneur) Migrant, the Upper Tribunal held that that the phrase "in-time" in Paragraph 39E(2) of the Immigration Rules includes an application made within 28 days of expiry of Mr Ali's leave to remain. The Secretary of State's case, on appeal to the Court of Appeal, was that this phrase, on its proper construction, refers only to an application that is made before expiry of a person's leave to remain.

The Court of Appeal, allowing the Secretary of State's appeal, has held that the Upper Tribunal misconstrued the phrase "in-time" in granting Mr Ali's Judicial Review claim. The Court of Appeal has held that an application made after expiry of a person's leave to remain is not "in-time" for the purpose of Paragraph 39E(2) of the Immigration Rules even if it is made within the so-called grace period of 14 or 28 days. The Court of Appeal has accordingly set aside the Upper Tribunal's decision and substituted a fresh decision dismissing Mr Ali's Judicial Review claim.

Zane Malik QC appeared for the Secretary of State for the Home Department.

The Court of Appeal's judgment is available here.