[View without highlighting]
[Printable RTF version]
FB and Others (HC 395 para 284: "six months") Bangladesh  UKAIT 00030
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 7 February 2006
Date Determination notified: 16 March 2006
Mr C M G Ockelton (Deputy President)
Mr G Warr (Senior Immigration Judge)
For the first Appellant: Mr M A Kalam of Jalalabad Law Associates
For the second Appellant: Mr M A Kalam of Jalalabad Law Associates
For the third Appellant: Mr Jaisri, counsel instructed by Simmons Solicitors
For the Respondent: Mr Y Oluntolu, Home Office Presenting Officer
DETERMINATION AND REASONS
|FB and Others
|Secretary of State for the Home Department
A person given leave to enter the United Kingdom for a period expiring on the day bearing the same date as the date of entry in the sixth month after entry is given leave for a period of six months and one day. Such a person is therefore not excluded from seeking to remain in the UK as a spouse under para 284(i) of HC 395 as amended by HC 538 on 1 April 2003. That period of six months and one day does not, however, extend beyond six months from the date of admission within the meaning of paragraph 284(i) as amended by Cm 5949 (in force from 25 August 2003 to 1 October 2004). The leave of any such person is nevertheless extended by s3C of the 1971 Act if he applies for variation; and in that case he too meets the requirements of paragraph 284(i). The most recent change to para 284(i), Cm 6339, (taking effect on 1 October 2004) does, however, exclude such a person if leave of more than six months is prohibited by the Immigration Rules in his case.
- How long is six months? Or rather, is a period of time beginning on a date in one month and ending on the date bearing the same number in the sixth month thereafter a period of "six months' duration or less"? And does such a period extend "beyond six months" from the date on which it begins?
- The question arises because of the terms of paragraph 284 of the Immigration Rules, HC 395, which sets out the requirements for an extension of stay as the spouse of the person present and settled in the United Kingdom. The first of the requirements, in the form in which it had effect from 1 April 2003 (when it was amended by HC 538) until 25 August 2003 (when it was amended by Cm 5949), was as follows:
"(i) The applicant has limited leave to enter or remain in the United Kingdom, other than where that limited leave is of six months' duration or less. "
(The amendment made by HC 538 was the insertion of the words in italics.) From 25 August 2003, the form was as follows:
"(i) The applicant has limited leave to enter or remain in the United Kingdom other than where as a result of that leave he would not have been in the United Kingdom beyond six months from the date on which he was admitted to the United Kingdom on this occasion in accordance with these rules, unless the leave in question is limited leave to enter as a fiancé."
That requirement was itself amended by Cm 6339 by the addition of the words "which was given in accordance with any of the provisions of these rules" before the words "other than" with effect from 1 October 2004.
Entry Clearance and leave to enter
- In the course of this determination we shall have to consider the process by which the Appellants were granted leave to enter the United Kingdom. For clarity's sake, it may therefore be appropriate to set out the general principles relating to entry clearance and leave to enter.
- The principal statutory provision relating to leave to enter is s3(1) of the Immigration Act 1971, as amended by the British Nationality Act 1981 and the Asylum and Immigration Act 1996:
"3(1) Except as otherwise provided by or under this Act, where a person is not a British citizen-
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period);
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely-
(i) a condition restricting his employment or occupation in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and
(iii) a condition requiring him to register with the police."
- By s4 of the 1971 Act and associated provisions in Schedule 2, leave to enter is granted by Immigration Officers, who are officers of the Secretary of State for the Home Department.
- Before the coming into force of the Immigration and Asylum Act 1999, there was a clear demarcation between leave to enter, obtained from an Immigration Officer, and entry clearance, obtained from a British post abroad. The Immigration Rules provide that persons of certain nationalities (listed in appendix 1 to the Rules) require entry clearance in the form of a visa as a precondition to their being granted leave to enter. The Rules also provide that leave to enter for certain purposes will not be granted unless entry clearance has been obtained. The administration of entry clearance is by Entry Clearance Officers or Visa Officers, who are officers of the Secretary of State for Foreign and Commonwealth Affairs. Thus, a person who is a national of one of the specified countries or who seeks entry for one of the specified purposes must first present himself at his local Embassy or High Commission and obtain entry clearance or a visa: without it he will not be admitted and, indeed, will not be carried by any reputable airline. On arrival (under the scheme as it was before the 1999 Act) he presented his entry clearance and formally sought leave to enter. The holder of a valid entry clearance who was for any reason refused leave to enter on the strength of it had an in-country right of appeal against of the refusal of leave to enter. It was for that reason that entry clearance was sometimes sought and obtained by those who had no need to have it, because the possession of entry clearance gave at least a right to be physically present in the United Kingdom during the course of any appeal against refusal of leave to enter, and so might well ensure that a travel ticket would not have been bought and used in vain.
- The strict separation between entry clearance and leave to enter ceased on 14 February 2000 when provisions of the 1999 Act came into force, inserting a new s3A into the 1971 Act. This section reads in part as follows:
"3A(1) The Secretary of State may by order make further provisions with respect to the giving, refusing or varying of leave to enter the United Kingdom.
(2) An order under subsection (1) may, in particular, provide for-
(a) leave to be given or refused before the person concerned arrives in the United Kingdom;
(3) The Secretary of State may by order provide that, in such circumstances as may be prescribed-
(a) an entry visa, or
(b) such other form of entry clearance as may be prescribed, is to have effect as leave to enter the United Kingdom."
- The associated Order is the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) which came into force on 30 July 2000. The effect of the Order is summarised in a new paragraph 25A of the Immigration Rules, operative from the same date:
"25A. An entry clearance which satisfies the requirements set out in article 3 of the Immigration (Leave to Enter and Remain) Order 2000 will have effect as leave to enter the United Kingdom. The requirements are that the entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom and should be endorsed with the conditions to which it is subject or with a statement that it has effect as indefinite leave to enter the United Kingdom. The holder of such an entry clearance will not require leave to enter on arrival in the United Kingdom and, for the purposes of these Rules, will be treated as a person who has arrived in the United Kingdom with leave to enter the United Kingdom which is in force but which was given to him before his arrival."
- Part II of the Order is headed "Entry clearance as leave to enter" and comprises Articles 2 to 6. We shall set out the provisions with which we are concerned, omitting references to entry clearance endorsed on travel documents issued under the Refugee Convention, and special arrangements relating to the ADS Agreement with China.
"2. Entry clearance as Leave to Enter
… [A]n entry clearance which complies with the requirements of article 3 shall have effect as leave to enter the United Kingdom to the extent specified in article 4, but subject to the conditions referred to in article 5.
(2) The entry clearance must specify the purpose for which the holder wishes to enter the United Kingdom.
(3) The entry clearance must be endorsed with:
(a) the conditions to which it is subject; or
(b) a statement that it is to have effect as indefinite leave to enter the United Kingdom.
4. Extent to which entry clearance is to be leave to enter
(1) A visit visa, during its period of validity, shall have effect as leave to enter the United Kingdom on an unlimited number of occasions, in accordance with paragraph (2).
(2) On each occasion the holder arrives in the United Kingdom, he shall be treated for the purposes of the Immigration Acts as having been granted, before arrival, leave to enter the United Kingdom for a limited period beginning on the date of arrival, being:
(a) six months if six months or more remain of the visa's period of validity;
(b) the visa's remaining period of validity, if less than six months.
(3) In the case of any other form of entry clearance, it shall have effect as leave to enter the United Kingdom on one occasion during its period of validity; and, on arrival in the United Kingdom, the holder shall be treated for the purposes of the Immigration Acts as having been granted, before arrival, leave to enter the United Kingdom:
(a) in the case of any entry clearance which is endorsed with a statement that it is to have effect as indefinite leave to enter the United Kingdom, for an indefinite period; or
(b) in the case of an entry clearance which is endorsed with conditions, for a limited period, being the period beginning on the date on which the holder arrives in the United Kingdom and ending on the date of expiry of the entry clearance.
(4) In this article 'period of validity' means the period beginning on the day on which the entry clearance becomes effective and ending on the day on which it expires.
An entry clearance shall have effect as leave to enter subject to any conditions, being conditions of a kind that may be imposed on leave to enter given under section 3 of the Act, to which the entry clearance is subject and which are endorsed on it."
- A number of changes were made by the Immigration (Leave to Enter and Remain) (Amendment) Order 2005 (SI 2005/1159). These partly relate to the ADS Agreement with China, but in addition make special provision for any visit visa "endorsed with the statement that it is to have effect as a single-entry visa". A single-entry visit visa is now excluded from paragraphs (1) and (2) of Article 4 and included in paragraph (3): in other words, a single-entry visit visa is effective for a single entry only. These provisions came into effect on 1 April 2005.
- Before the changes made by and under the 1999 Act, a grant of leave to enter as a visitor was normally for six months (even if the visa or entry clearance had been obtained on the basis of an intention to spend a much shorter period in the United Kingdom: a practice which did nothing to promote an impression of enforcement). The leave was notified by the use of a stamp in the visitor's passport, giving the date of entry and granting leave "for six months" in those words. Under the present provisions, the stamp only needs to give the date of arrival: the period of leave will be governed by the 2000 Order. It will be a period of six months if the visa has at least six months to run, or the remaining period of the visa's validity if less.
- There are still, however, Immigration Rules relating to the period for which visitors are to have leave to enter. They are primarily applicable in two circumstances. The first is where, in accordance with the Order, a person has received less than six months leave to enter (because his visa had less than six months to run) and seeks to extend his leave. The second is where a person who is entitled to do so (that is to say, who is not a visa national) arrives at a port without entry clearance and seeks leave to enter as a visitor. Because he has no entry clearance, the Order has no effect for him.
- The relevant Rules relating to the first situation are those in paragraphs 44 to 46 of HC 395. Paragraph 44 provides that "six months is the maximum permitted leave which may be granted to a visitor", and limits any extension to the person who "has not already spent, or would not as a result of an extension of stay spend, more than six months in total in the United Kingdom as a visitor". Paragraph 45, taken with paragraph 44, enables an extension to be granted so as to make the total stay up to six months.
- The second situation is covered by paragraph 42, which enables a person seeking leave to enter the United Kingdom as a visitor to be admitted for a period not exceeding six months.
- For completeness, we should also set out paragraph 23A of HC 395, which has had effect since 13 November 2003 and is in the following terms:
"23A. A person who is not a visa national, not a specified national, or who is seeking entry for a purpose for which prior entry clearance is not required under these Rules may ascertain in advance whether he is eligible for admission to the United Kingdom by applying for an entry clearance in accordance with paragraphs 24-30. A person who seeks leave to enter on arrival in the United Kingdom may be granted such leave, irrespective of the purpose or period of time for which he seeks entry, for a period not exceeding six months."
- It is clear that six months is a period of time which is of considerable importance in both the Order and the Immigration Rules. Whereas the Order, however, as a statutory instrument, has effect regardless of any actual grant of leave, the Secretary of State retains his power to behave more generously to a person seeking leave to enter than is required or even allowed by the Immigration Rules. It therefore follows that although leave to enter as a visitor under the Order cannot exceed six months, a grant of leave to enter may exceed six months, because the Secretary of State or an Immigration Officer may, by deliberate choice or by mistake, have granted more than is envisaged by the Immigration Rules.
- The first Appellant, FB, a citizen of Bangladesh, obtained from the Entry Clearance Officer, Dhaka, a visitor's visa on 2 March 2003. The period of validity is entered on the visa as beginning on "02/03/03" and ending on "02/09/03". It is not restricted to a single entry, but the maximum length of stay is given as "180 days". She arrived in the United Kingdom on 25 March 2003, and the visa was date stamped on that date by an Immigration Officer at Heathrow. It is not disputed that, under the Order, she thereupon had leave to enter the United Kingdom until 2 September 2003, when her visa expired.
- Before that date, she applied for an extension of leave, which was granted on 6 August 2003. The extension is in the following terms, endorsed in her passport:
"Leave to remain in the United Kingdom on condition that the holder maintains and accommodates himself and any dependants without recourse to public funds, does not engage in employment paid or unpaid and does not engage in any business or profession, is hereby given until 25th September 2003."
- The combined operation of the Order and the extension was thus that she had leave to enter from 25 March 2003 to 25 September 2003. On 12 September 2003, she applied for leave to remain as a spouse, she having married a British man in July 2003. She was refused on 17 October 2003 on the ground that she did not meet the requirements of paragraph 284(i) of HC 395 as amended by HC 538. The explanatory statement asserts that the Appellant's extension of leave until 25 September 2003 gave her "the maximum six months permitted" as a visitor. She was therefore not a person who had leave other than of six months' duration or less, and was not entitled to leave to remain as a spouse. The explanatory statement makes no reference to the replacement of the wording of HC 538 from 25 August 2003, but the notice of decision refers generally to paragraph 284 (as amended) and asserts that the Appellant did not "meet the requirement of having limited leave for a period of more than six months in the United Kingdom".
- The Appellant appealed under the Immigration Rules and on human rights grounds. So far as the Immigration Rules are concerned, the Adjudicator, Mrs R Goldfarb, wrote as follows:
"14. As a preliminary issue, the Appellant's representative raised two matters: he asserted that the Appellant stayed more than six months in the United Kingdom. The Appellant entered the United Kingdom on 25th March 2003 with a visa for 180 days. The period of validity, including the extension granted, was until 2nd September 2003. However, the Appellant's grant of a further extension, the grant being made on 6th August 23003, was until 25th September 2003. I conclude from all the information before me that her permitted duration in the United Kingdom was for six months. I conclude that it had been open to her to make a further application to extend her visa beyond 25th September, if she were minded to have done so (for a number of bona fide reasons). However, this was not the case and whatever the duration that she would have wished to have maintained she did not have a grant of more than 180 days leave to remain here."
- The Adjudicator accordingly dismissed the appeal under the Immigration Rules. There was an application for permission to appeal to the Immigration Appeal Tribunal on the grounds, inter alia, that the Appellant had leave to remain for six months and one day, which is a period exceeding six months. Permission was granted on that ground and on another basis which is, as we understand it, essentially that the Adjudicator's reference to the period from 25 March to 25 September being of no more than 180 days is incomprehensible. Following the commencement of the appeals provisions of the 2004 Act, the appeal is now before us for reconsideration.
- The case of the second Appellant, MSA, is very similar. She is also a citizen of Bangladesh. The visa which she obtained from the Entry Clearance Officer, Dhaka, on 25 February 2003 is, mutatis mutandis, in identical terms to that issued to the first Appellant. Its period of validity is "25/02/03 to 25/08/03": it is for multiple entries, the maximum period of stay being again 180 days. She used it on 14 April 2003 when she arrived at Heathrow and the visa was date-stamped then. Before the expiry of the visa, she applied for an extension of leave, which was granted in terms identical to those relating to the first Appellant, save that the date of expiry is expressed as "14th October 2003". On 3 October 2003, she applied for leave to remain as the spouse of a man she had married on 6 August. Her application was refused on 2 February 2004. Both the explanatory statement and the notice of refusal refer expressly to HC 538, rather than to the wording substituted by Cm 5949 from 25 August 2003. The material part of the explanatory statement is as follows:
"The Secretary of State also noted that the Appellant had been granted leave to remain in the United Kingdom for six months only. However, it is one of the requirements of the Immigration Rules for leave to be granted as a spouse that the original leave should exceed six months which means that the Appellant does not meet the requirements of the Immigration Rules."
- The notice of refusal includes the sentence "However, the Immigration Rules direct that a person seeking such leave is to be refused if they do not meet the requirements set out in the Immigration Rules as amended by HC 358".
- The Appellant appealed under the Immigration Rules and on human rights grounds. The Immigration Judge, Mr R A Cox, dismissed the appeal under the Immigration Rules, holding that the Appellant had had exactly six months' leave to enter and no more, and noting from previous correspondence that the Appellant's representatives appeared to have accepted that. Reconsideration of the Immigration Judge's decision was ordered on the ground that the Appellant had arguably had leave to enter for six months and one day.
- The third Appellant, LM, is a citizen of Zimbabwe. She arrived in the United Kingdom on 15 October 2002 and sought leave to enter as a visitor. At that time, Zimbabwe was not a country listed in appendix 1 to the Immigration Rules, and so she did not need entry clearance or a visa. After enquiry, she was granted leave to enter. The relevant notification was stamped in her passport. There is a Gatwick entry stamp dated 15 October 2002 and another stamp which reads "Leave to enter for/until 15th April 2003 no work or recourse to public funds".
- On 31 March 2003, she submitted an application for leave to remain as the spouse of a person whom she had married on 28 March. Her application was refused on 11 April 2003, because it had not been completed in full and the required documents did not accompany it. The application was resubmitted and submitted on 15 April 2003. On 8 July 2003, the application was refused on the basis of HC 538, which had come into force on 1 April 2003. The relevant part of the explanatory statement is as follows:
"The Secretary of State noted that the Appellant last entered the country for six months' duration and therefore, does not qualify to change his immigration status to that of a spouse of a person present and settled in the UK, as a valid entry clearance is required before returning to the United Kingdom." [sic]
- The notice of refusal is in the following terms:
"You applied for leave to remain in the United Kingdom on the basis of your marriage …. However, the Immigration Rules direct that a person seeking such leave is to be refused if they do not meet each of the requirements set out in the Immigration Rules as amended by HC 538. This includes that the applicant has limited leave to remain in the United Kingdom other than where that leave is of six months' duration or less. On 15 October 2002, you were granted limited leave to enter as a visitor for a period of six months from 15 October 2002 until 15 April 2003, therefore you do not meet the requirements of having limited leave for a period of more than six months in the United Kingdom."
- The Appellant appealed essentially on human rights grounds, but the Adjudicator, Mr F X J D'Ambrosio, dealt with the matter under the Immigration Rules as well. It is by no means easy to understand the procedure he adopted. He appears to have taken as his authority a compendium of immigration law which did not purport to state the law in force at the time that the present decision was made. He ignored the reference to HC 538 in the notice of decision and appears to have required the Home Office Presenting Officer to prove the terms of the Immigration Rules as a matter of evidence. When the Presenting Officer failed to do so, the Adjudicator appears to have purported to find as a fact that paragraph 284 was not amended on 1 April 2003. Faced with that proposed finding, the Presenting Officer indicated that he would no longer oppose the appeal. The Adjudicator then appears to have allowed the appeal on the basis of the Immigration Rules as he believed them to be at the date of the decision, but without making any enquiry as to whether at that date the Appellant met the substantive requirements of those Rules. The Secretary of State applied for and was granted permission to appeal to the Immigration Appeal Tribunal on the ground that the Adjudicator had erred in ignoring HC 538. In the grounds of appeal, the Respondent asserted that the appeal was conceded only on the question of whether the Appellant was excluded from consideration for leave to remain as a spouse. Following the commencement of the appeal provisions of the 2004 Act, the grant of permission to the Secretary of State operates as an order that the Appellant's appeal be reconsidered by this Tribunal.
- By the consent of the parties' representatives, we dealt with these reconsiderations together. Mr Jaisri, for the third Appellant, submitted that the Adjudicator was right to require the Secretary of State to prove the terms of the Immigration Rules. He referred us to dicta of Eveleigh LJ in R v IAT ex parte Nathwani [1979-80] Imm AR 9, citing Lord Denning MR in R v SSHD ex parte Hosenball  1 WLR 766, 780. There, the Master of the Rolls had said of the Immigration Rules:
"They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and Tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the court in immigration cases."
- Mr Jaisri's submission was that as they are not rules of law, the Immigration Rules require to be proved. We are unable to accept that submission. Whatever may have been the position in 1977, there can be no doubt now that the Immigration Rules are close to being rules of law. Thirty-five years of decided cases have established that the Immigration Rules bind Immigration Officers and others to grant to claimants relief at least as generous as that ordained in the Rules. Although they are neither statute nor statutory instruments, they are made in accordance with the provisions of the Immigration Act 1971 and under that Act and all its successors an Adjudicator or Immigration Judge or Tribunal is required to allow an appeal insofar as the decision against which the appeal is brought was made not in accordance with any relevant Immigration Rules. In an appeal depending on the Immigration Rules, the Rules themselves are effectively the legal context within which the Adjudicator or Immigration Judge makes his decision. It is quite inappropriate to regard them in the same light as casual acts, needing proof or turning on the incidence of the burden of proof. If the division is between law, which the judge is deemed to know, and fact, which needs to be proved, then the Immigration Rules fall on the side of law. That conclusion is adumbrated in Pearson v IAT  Imm AR 212 and confirmed by the phrase in s86(3)(a) of the 2002 Act: "the law (including immigration rules)".
- For the foregoing reasons, Mr D'Ambrosio erred in law in the procedure he adopted and in failing to ascertain and apply the Immigration Rules as they were at the date of the decision under appeal. Even if he had been right to require proof of the provisions of the Immigration Rules, however, he would have erred in law in his failure to take in the account of HC 538, which was specifically brought to his attention by the notice of refusal. He further erred in directing the issue of entry clearance when there had been no consideration of the substantive requirements of paragraph 284. We note that he appears to have thought that the appeal was conceded on that basis. We are satisfied that that was his error, brought about no doubt by the confusion over trying to ascertain the terms of the applicable Immigration Rules. We take the view that it is inconceivable that the Presenting Officer conceded or intended to concede the appeal substantively and accept the explanation in the Secretary of State's grounds. Mr Jaisri made no submissions opposing the grounds on this point.
- The third Appellant's appeal should have been and was considered under paragraph 284 as amended by HC 538, because that was the rule in force when the decision was made. Despite the reference to HC 538 in relation to the other two Appellants, their applications should have been considered under the terms of paragraph 284(i) as substituted by Cm 5949. By the time that the decisions were made in the other two Appellants' cases, the rule had changed. Their cases should have been considered under the rule in force at the date of the decision: if authority for that proposition is required, it is to be found in Nathwani. It looks as though those who made the decisions in these cases were not aware that the rule had changed, but that is beside the point.
- The precise questions posed by these three appeals are therefore as follows. Was the leave granted to the first Appellant (25 March to 25 September 2003) and the second Appellant (14 April to 14 October 2003) leave as a result of which the Appellants would not have been in the United Kingdom beyond six months from the date on which they were admitted to the United Kingdom on this occasion in accordance with the Immigration Rules? Was the leave granted to the third Appellant (15 October 2002 to 15 April 2003) leave which, in the words of HC 538, is of six months duration or less?
- Both Mr Kalam, who represented the first two Appellants, and Mr Jaisri made reference to various arithmetical calculations. Neither they nor Mr Oluntolu, who represented the Respondent, referred us to any provisions for the calculation of periods of time in the Immigration Rules or elsewhere. Mr Jaisri referred us in general terms to cases relating to leases, and Mr Kalan reminded us that the period for which leave to enter is given may be different from the period of validity of a visa; but neither referred us to any specific authorities on the issue.
- Mr Oluntolu's submissions were confined to giving us what he told us was the consistent view of his colleagues that the periods of time for which leave to enter was given in these cases were periods of six months and not more. Although he acknowledged that both the first day and the last were periods on which the Appellant was in the United Kingdom with leave, he said that the last date was understood to be a packing up day, during the course of which a person should depart from the United Kingdom.
- The universal views of Home Office officials are no doubt entitled to some weight in the interpretation of rules which they promote and they are intended to apply. An examination of the operation of the system of visas taking effect as leave to enter does not, however, give us any confidence that there is in the scheme a consistency which we should exploit and promote.
- We say that because of the difference between the terms of visas as issued and the terms of the Order. As we have recorded earlier in this determination, the visas issued to the first and second Appellant were expressed to be for a maximum stay of 180 days. There is no doubt in our minds that that is the standard form. But the Order has effect that leave to enter is for six months or such shorter period for which the visa is valid. Six months has to be interpreted here as elsewhere as six calendar months, in accordance with the provisions of the Interpretation Acts. (That provision in itself is of no assistance on the principal issue in this case: the provision was introduced in the Interpretation Act 1850 in order to displace any presumption that lunar months were intended.) There is no period of six months that is as short as 180 days. The shortest periods of six months are those that begin in January, February, September or November: they have 181 days or 182 in leap years. Most periods of six months beginning in the summer are of 184 days. (These calculations are based on the assumption that the period ends on the day before the day bearing the same date of the month as the day on which the period started: otherwise, each of the figures would have to be increased by one.)
- It follows that, provided a visa is valid for long enough (or is used early enough), the grant of leave to enter under the Order is a grant which is in breach of the visa. A person who arrives in the United Kingdom with a visa limiting a stay to 180 days may, by the Order, be given leave to enter for a period which exceeds 180 days. At first glance, it might appear that consistency was achieved by Article 5 of the Order, which provides that the leave to enter shall be subject to any conditions which the entry clearance is subject; but the conditions have to be conditions of a kind that can be imposed on leave to enter under s3 of the 1971 Act. Reference to that section, which we have set out above, shows that the period of the leave is not itself a condition. So the inconsistency remains. The system taken as a whole is not such as to give confidence that calculations of lengths of time are precisely made and that the consequences of such calculations are rigorously worked out.
- We are therefore thrown upon our own resources for the interpretation of the phrase "six months". We note, with regret, that no party before us made any submissions on Cm 5949 or on s 3C of the 1971 Act, to which we refer below. We are however confident that all parties put all the points that they wished to put.
- We begin from first principles. The whole of January, from the first moment of 1 January until the last moment of 31 January, is one month. As the law takes no notice of fractions of a day, it follows that a period expressed as beginning on 1 January and ending on 31 January is a period of one month. It follows that a period expressed as beginning on 1 January and ending on 1 February is one day longer than that: it is a period of one month and one day. Looked at another way, it is a period of 32 days, and no month is as long as 32 days, so it must be a period of longer than one month. The conclusion that the period beginning on 1 January and ending on 1 February is longer than one month can be avoided only if there are provisions requiring some part of the period to be ignored in making the calculation. Such provisions are quite usual in rules which limit the period during which some act is to be done. In such cases, the first day of the period, or the last, or both, are sometimes directed to be (or accepted as) excluded. But no such rules apply to the provisions with which we are concerned, and, in any event, such rules are not commonly found in English law to apply to the calculation of a period of time during which some status (such as that of tenant or employee or licensee or prisoner) is to exist. Brett LJ set out the principle for the last category in Migotti v Colvill (1879) 4 CPD 233, 238:
"The term a calendar month is a legal and technical term … . The meaning of the phrase is that, in computing time by calendar months, the time must be reckoned by looking at the calendar and not by counting days; and that one calendar month's imprisonment is to be calculated from the day of imprisonment to the day numerically corresponding to that day in the following month less one."
Bramwell and Cotton LJJ agreed with him.
- The normal rule for leases is that a lease ends on the day in the final month with a date corresponding to that in the month in which it began: but that is because it is a rule of interpretation that where by an instrument, an interest or benefit is secured for a certain time, the term commences from midnight at the end of the specified day. The first day is therefore not part of the term and the period of weeks, months or years is itself calculated consistently with what we have set out above. In Clayton's Case (1585) 5 Rep 1a, one of the questions at issue was the date on which the term of a three-year lease commenced. Once it was decided that it began on 20 June there was no doubt but that the last day of the term was 19 June three years later.
- Dodds v Walker  1 WLR 1027 raised a more complex issue. A tenant's notice had to be given not less than two nor more than four months after a landlord's notice had been given. The landlord's notice was given on 30 September, and the question was whether the tenant's notice was in time on 31 January. The House of Lords approved the use of the "corresponding date" rule, giving a four-month period from 30 September to 30 January, because in calculating a period that has elapsed after the occurrence of a specified event, the day on which the event occurred is to be ignored. The last day was therefore 30 January (and the notice was out of time); but that day was the last day of a four-month period only on the basis that 30 September was part of the period.
- Any suggestion that either the first day or the last is to be ignored in the cases before us is expressly excluded by Mr Oluntolu's acknowledgement that both the opening and closing days of the expressed period of leave are days on which the person in question has leave. That is also the view we should undoubtedly have reached without Mr Oluntolu's concessions. The first day of each of the periods in question cannot be ignored, because it was the day of arrival, and unless each Appellant had leave commencing on that day (rather than the next day) she entered illegally. And it cannot properly be suggested that the Appellants did not have leave on the final day specified in their grants of leave because leave had expired the day before.
- A period of six months' leave is thus to be calculated according to the rule in Migotti and Colvill; and each of the periods of leave granted to the Appellants was therefore a period of six months and one day, which is a period of more than six months. In the third Appellant's case, that conclusion is sufficient to show that she was not excluded by paragraph 284(i) as it applied to her on 11 April 2004. We have already identified other errors of law in the determination of the Adjudicator who heard her appeal. In her case, we substitute a determination allowing her appeal insofar as the decision was not in accordance with the Immigration Rules.
- There is also no doubt that, for the same reasons as those set out above, the first and second Appellants each had leave of six months and one day. In our judgment, however, the phrasing of Cm 5949 is materially different in its effect on these cases from that of HC 538. HC 538 looks only at the total period of leave, but Cm 5949 looks at how far the period of leave stretched beyond (that is to say, was after) a specified event. Cm 5949 thus invites the application of the rule exemplified in Dodds v Walker. Granted that the first day is a day of leave, it is nevertheless also the date on which the Appellant was admitted. That date was followed by a period of six months' leave. The latter period being no more than six months, the leave granted on admission did not extend beyond six months from the date of admission.
- It follows that insofar as the first and second Appellants rely on the grants of leave to which we have referred, they failed to meet the requirements of paragraph 284(i) as it was in force at the date of the decisions in their cases.
- It appears, however, that the matter does not end there. Section 3C of the 1971 Act, as substituted from 1 April 2003, is as follows:
"3C. Continuation of leave pending variation decision
(1) This section applies if-
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when-
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c) an appeal under that section against that decision is pending (within the meaning of section 104 of that Act).
(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).
(6) In this section a reference to an application being decided is a reference to notice of the decision being given in accordance with regulations under section 105 of that Act (notice of immigration decision)."
- These provisions appear to apply to all three Appellants, but they are of crucial importance in the first and second Appellants' cases. They have the effect that the Appellants still have leave; and that is not a new grant of leave but because "the leave" (subsection (2)) that they had at the time of their application has been extended to cover the time of any appeal.
- There are formidable problems with the interpretation of s 3C. In particular, its provisions seem to have the effect of excluding any appeal under s 82(2)(d) of the 2002 Act because the "result of the refusal" to vary is never that the person "has no leave"; and there is thus an apparent circularity or contradiction in s 3C(2)(b). But there can be no doubt at all that the leave of each Appellant was extended by s 3C(2)(a) to the date of the Secretary of State's decision. That was, clearly, a period of leave extending beyond six months from the date of admission. We conclude, albeit with some hesitation, that because (only) of the operation of s 3C the first and second Appellants met the requirements of paragraph 284(i) as amended by Cm 5949.
- The Adjudicator who heard the appeal of the first Appellant and the Immigration Judge who heard the appeal of the second Appellant therefore both materially erred in law in considering that the decision was made in accordance with the Immigration Rules. Insofar as the decisions were not made in accordance with the Immigration Rules, we substitute decisions allowing their appeals.
The way forward
- We are, however, fortified in our conclusion by the subsequent history of paragraph 284(i). As we indicated at the beginning of this determination, its terms were changed again with effect from 1 October 2004. The reference to a grant of leave is now restricted to a grant of leave given in accordance with any of the provisions of the Immigration Rules. We had originally supposed that this amendment was intended to cover only grants by the Secretary of State or an Immigration Officer that, intentionally or otherwise, exceeded the period allowed by the Rules. Although there is no doubt that a grant to a visitor of leave to enter for six months and one day is lawful, because the Secretary of State and his officers can give an applicant more than the Rules require them to, there is equally no doubt that the part of the period of leave that exceeds six months cannot be given in accordance with any provision of the Rules, because a grant of leave to a visitor under the Rules is restricted to six months. In the case of decisions taken after 1 October 2004, therefore, whatever the period of leave actually given to a visitor or to a person applying under paragraph 23A of the Rules, he is a person who has not had more than six months leave for the purposes of paragraph 284 because his leave under the Rules is limited to six months. The most recent amendment has a general effect too. If an individual's leave is extended by s 3C, the leave that he "has" is given by the statute, not "in accordance with any of the provisions of [the] Rules", and the extension will thus not be sufficient to bring him within paragraph 284(i) in the form it now has.
- It follows that the issue which we have decided in these appeals relates only to decisions made between 1 April 2003 (when HC 538 came into effect) and 1 October 2004 (when Cm 6339 came into effect).
- That leaves a difficulty for these Appellants, because the effect of this determination is that their applications need now to be substantively considered by the Secretary of State. The decisions which he in due course makes will be decisions after 1 October 2004 and, according to the usual practice, would now be subject to the Immigration Rules in force at the time that the decision is made. As we have indicated, all three Appellants would be excluded from consideration by the newly amended paragraph 284(i) if the decisions in their cases were made today. It would, however, be grossly unfair for the Appellants to be penalised in this way as a result of the Secretary of State's misinterpretation and misapplication of his own rules. Our allowing the appeals insofar as the decisions were not in accordance with the Immigration Rules essentially deals with paragraph 284(i) in all three cases. We therefore direct that the Secretary of State now continue his consideration of each of these applications, on the basis that sub-paragraph (i) of paragraph 284 is fulfilled in each case.
C M G OCKELTON
Copyright Policy |
Donate to BAILII