In The Secretary of State for the Home Department -v- Ali [2021] EWCA Civ 1357, the Court ruled on the interpretation of “in-time” application within the context of extension applications made in the UK and held that an application made after the expiry of existing leave, albeit during the grace period of 14 days under para 39E, is not an “in-time” application.

Briefly, the facts of the case are that Mr. Ali had leave as a Tier 1 (Post-Study) Migrant. While this leave was still valid, he made an in-time application for leave as Tier 1 (Entrepreneur) Migrant (“application 1”). This application was refused and he subsequently became appeal rights exhausted and his section 3C leave ended.

Just less than 28 days after, he made a fresh application to remain, still as a Tier 1 (Entrepreneur) Migrant (“application 2”). The SSHD disregarded the period of overstaying between becoming appeal rights exhausted and making fresh application (in accordance with the Immigration Rules as they stood at that time) because it was a period of less than 28 days and dealt with the application on its merits. However, application 2 was refused and the decision was maintained on administrative review.

Within 14 days of the outcome of administrative review of “application 2”, Mr. Ali made a fresh application for leave as a Tier 1 (Entrepreneur) Migrant (“application 3”). Application 3 was refused on the basis that none of the exceptions for overstayers in paragraph 39E applied to Mr Ali’s current application. The decision was maintained on review.

Mr Ali lodged a judicial review claim. The Upper Tribunal upheld the claim and quashed the SSHD’s decision refusing application 3 holding that paragraph 39E(2) of the Immigration Rules applied to Mr Ali because application 2 was made “in-time” and application 3 was made within 14 days of the refusal of application 2. The judge concluded that application 2 was “in-time” because, although it was made after the expiry of leave to remain, it was made within the 28 day period permitted by the Immigration Rules then in force.

The SSHD appealed to the Court of Appeal.

The question raised by the appeal was whether “in-time” in paragraph 39E(2) simply means before the expiry of a person’s leave as the SSHD contended or whether, in a case where the Immigration Rules provide for or permit an application to be made within a period of up to 28 days after the expiry of a person’s leave, the additional 28- day period is also in-time for these purposes, as the respondent contended and as the Upper Tribunal judge found.

The Court of Appeal considered the position prior to the introduction of para 39E on 24 November 2016 which was the requirement not to be in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded as set out in paragraph 245DD(g), and the policy set out in the Explanatory Memorandum to HC 194 which explained at paragraph 2.1, one of its objectives was:

To introduce a consistent approach to dealing with applications for leave to remain from migrants whose previous period of leave has expired, by enabling migrants whose previous period of leave has expired to qualify for leave to remain where the application is made within 28 days of the expiry of the previous leave.”

The introduction of 28 day grace period into the Immigration Rules, was an exception to the general rule that applications for leave had to be made before the expiry of an existing period of leave. It recognised that the expiry of an existing period of leave, or the deadline in this context, could be missed without fault on the part of an applicant or their advisers. It introduced a consistent approach to addressing this problem by allowing up to 28 days after the expiry of leave, by way of exception, in which to make an application for leave for all types of migrants whose previous period of leave had expired. In other words, it enabled overstayers to make an application after the deadline for doing so had expired but only for a limited period.

The Court found that the change introduced by the introduction of Para 39E was consistent with this prior approach. Para 39E(2)(ii) allowed an applicant who applied in time and was refused leave and exhausted their appeal rights to make a second application without being automatically disqualified. The policy, therefore, maintained the ability of people in this situation to have a second bite of the cherry in terms of making a second application, but simply reduced the time available for making that second application.

The Court ruled that that the last in-time application made by Mr. Ali was application 1. His leave, as extended by section 3C of the 1971 Act, expired when he became appeal rights exhausted. Although made within the 28-day grace period and therefore considered on its merits in accordance with the Immigration Rules in force at that time, application 2 was not ‘in- time’. Mr. Ali was an overstayer in breach of the immigration laws, and in the UK without leave to remain because his leave period had expired. His leave had not been extended, and his application was made after the expiry of his leave and so was out of time.

Application 3 did not fall within paragraph 39E(2). Application 3 followed application 2. Application 2 was not made “in-time”. Application 3 was not, therefore, made following the refusal of a previous in-time application for leave for the purposes of paragraph 39E(2) (a).