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The Appellants, both nationals of Pakistan had made applications to extend their student visas prior to the expiration of their leave. The Secretary of State refused their applications and invalidated their existing leave by service of removal decisions under section 10 of the Immigration and Asylum Act 1999. Both Appellants lodged judicial review claims challenging the removal decisions.
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The Court held that the provision under section 10(8) of the 1999 Act, that is the notification ‘invalidates any leave previously given to him’ makes clear that from the date of notification, any leave a person had was invalid and did not draw a distinction between leave given under section 3 and leave automatically extended under section 3C. Such a distinction would produce ‘arbitrary results’. The Court also held that no assistance could be drawn from a section 47 removal decision as it deals with a different situation, relating to people that have complied with the terms of their leave but whose application for a variation of their existing leave will be refused for other reasons.
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Lord Justice Beatson also stated that where there are disputes of facts, as was the case here, these are rarely likely to constitute ‘special or exceptional circumstances’, partly because judicial review was not suited to resolve such issues. In addition, matters of procedural unfairness could be considered in an appeal and were rarely likely to constitute ‘special or exceptional’ factors.
The Court held that although leaving the UK would lead to great expense and inconvenience, this was not in itself ‘special’ or ‘exceptional’. Lord Justice Sullivan gave serious ill health as an example of what might constitute such a factor.
In relation to Mr. Ali not receiving prior notice of the removal decision, the Court held that this did not prevent him from responding to the notice or by making further representations. In any event, such matters relating to procedural fairness could adequately be dealt with by the appellate process.
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The sequencing question
In Mr. Ali’s case, Mr. Malik argued that the refusal to vary leave and the removal decision itself were two distinct decisions and that the first decision made on 7 July 2014, which gave rise to an in-country right of appeal, could not be invalidated by a previous removal decision.
