Marepally v Secretary of State for the Home Department [2022] EWCA Civ 855 is yet another long residence case, this time concerning a defective refusal notice. The appellant wanted to rely on the defect to argue that he had achieved ten years’ continuous lawful residence in the UK by operation of section 3C of the Immigration Act 1971. The Court of Appeal found that he had fallen a few weeks (if not a few years) short, and noted in passing that “the purpose of section 3C… is not to enable persons to be able to rely on continuations of leave for the purpose of building up 10 years’ continuous lawful residence”.

Facts

The background to the case is somewhat complex and at times uncertain, with errors by one party or other at every turn.

Mr Marepally is a citizen of India who came to the UK in February 2009. Various immigration troubles ensued, including a successful appeal against refusal of permission to stay as a student. The relevant decision for the purposes of this case came in January 2017, when Mr Marepally applied for permission to stay as a temporary worker. The Home Office refused the application but, crucially, failed to inform him that he had a right of appeal. The refusal of his temporary worker application was finalised on 12 May 2017.

Mr Marepally applied for judicial review, arguing that the decision refusing him permission was unlawful and irrational. Permission was refused, with the Upper Tribunal finding that whatever errors the decision might have contained, “it is… inevitable that the decision would be the same if it were remade”.

He then lodged a private life application which the Home Office refused on the ground that refusal did not constitute a breach of his European Convention rights and referred to his permission as having ended on 21 January 2014. The claim was certified as clearly unfounded, meaning that he could only appeal against the refusal from abroad.

Finally, on 25 January 2019, Mr Marepally lodged an application for permission to stay on the basis of long residence, which he later varied to an application for settlement on the same basis. The Home Office turned him down. This time, the decision letter claimed he had had no permission since 2017 but either way, concluded that he had not accrued ten years’ continuous lawful residence.

Historic injustice?

The thrust of Mr Marepally’s appeal was that he had permission until 12 May 2017 and that the break in his permission after that should be disregarded because of a “historic injustice”: that he was not notified of his right of appeal against the refusal of his temporary worker application.

The First-tier Tribunal dismissed the appeal on the basis that Mr Marepally had challenged that decision by way of an unsuccessful judicial review. The Upper Tribunal also found for the Home Office, but mistakenly thought that Mr Marepally had appealed against the temporary worker refusal, thus “waiving the procedural irregularity”. In fact, as the Court of Appeal pointed out, it was an earlier decision on permission to stay as a student that he had appealed.

Much ado about nothing

The Court of Appeal decision effectively comes down to a single point (in paragraph 54):

Even if [Mr Marepally’s lawyer] were correct, and the application of… January 2017 had not been determined, he accepts that that application was varied by the application made on 18 May 2018 for leave to remain to be granted on human rights grounds. That application was decided and a notice of decision sent in January 2019. That notice did provide the reasons and informed the appellant of his right of appeal. On any analysis that decision complied with all the requirements of regulation 5 of the [Immigration (Notices) Regulations 2003]. Any leave had come to an end and was not continued under section 3C before the appellant had completed 10 years’ continuous lawful residence… The fundamental fact is that the appellant did not have 10 years’ continuous lawful residence on 21 February 2019 and did not meet the requirements for the grant of indefinite leave.

Lord Justice Lewis also made some useful, albeit obiter, comments about defective refusal notices (paragraph 44):

One of the functions of the notice… is to give the applicant information about his right to appeal against a particular decision. The fact that the notice does not do so may have consequences, particularly where the person wishes to appeal against the decision. By way of example, a person wishing to appeal against a decision has to provide the First-tier Tribunal with a notice of appeal within 14 days of being sent the notice of decision: see rule 19 of the Rules. Failure to notify the person of his right of appeal may be a good reason for extending the time for appealing under rule 4(3) of the Rules. Further, if a notice is quashed in a claim for judicial review, then there will be no notice of a decision in existence and the respondent may have to send a fresh notice of the decision and the time for appealing against the decision may begin from that date. If the notice is not quashed, however, it will continue to exist and may continue to have legal effect. The fact that a notice is deficient and does not give all of the relevant information does not, therefore, mean that the notice is necessarily, and for all time, legally ineffective.

And in paragraph 47:

In other words, a failure to give the requisite information may potentially render the notice of decision invalid. The respondent may rectify the error by sending a corrected notice. In that case, the time to appeal would begin to run from the time that the corrected notice was sent to the person concerned. If the respondent does not do that, then a court dealing with a claim for judicial review may quash the notice, and usually will do so if that is necessary to enable the person concerned to have an effective appeal. A court may, however, find that the notice was not invalid, or may decline as a matter of discretion to quash the notice, if, for example, the person concerned has in fact been made aware of the right of appeal. In that case, the original notice of decision remains in force (as it has not been quashed) and continues to have legal effect, and the time for appealing begins when that notice was sent to the person concerned…

In this case, the court found that Mr Marepally had not suffered an injustice as a result of the failure to inform him about his right to appeal the temporary worker refusal because he was not seeking to appeal that decision now. Instead he was trying to “benefit from the fact… as a means of trying to keep any previous leave to remain in existence in order to accumulate further periods of lawful leave” and rack up ten years of lawful residence. That, the court said, is not what section 3C leave is for.