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Application for asylum not validly made can have no effect, says Supreme Court

Mirza and others v Secretary of State for the Home Department [2016] UKSC 63

The Supreme Court unanimously dismissed the applicants’ judicial review of the Secretary of State’s decisions to treat a number of asylum applications as invalid.

All three appeals raised the issue of how Section 3C of the Immigration Act 1971 applies where an application is made within the time limits, but for some reason is procedurally defective.  The provision extends a person’s leave to remain if an application is made within the time limit and a decision is pending.

One of the applicants unwittingly underpaid the application fee and then ran out of leave.  Another applicant failed to pay a fee while the third applicant failed to provide biometric information and a fresh application failed.

The Court of Appeal found that Section 3C of the Immigration Rules was not engaged where an application was not validly made in accordance with these Rules.  The provision extends a person’s leave to remain pending determination of an application to vary the period of leave, as long as the application is made before the original leave has expired.

The Supreme Court agreed and unanimously dismissed all three appeals.  It stated that there was an overwhelming need for rationalisation and simplification of the immigration scheme.  It also highlighted the need for greater flexibility on the part of the Secretary of State to exercise some discretion in favour of those being penalised for simple errors.

Read UK Human Rights Blog here.

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Immigration & Asylum