UTIAC A person under the Nationality, Immigration and Asylum Act 2002 who has under the statute, only a restricted right of appeal, has, by reason of the Immigration (Notices) Regulations 2003, a right of appeal that is unrestricted as to time.
Where an appeal can only be brought on restricted grounds because of section 88 of the 2002 Act, the Notices Regulations 2003 lay down a complicated procedure. The notice of decision need not be accompanied by a notice of appeal. But if the recipient of the notice claims that the decision is contrary to the Race Relations Act, the Human Rights Convention or the Refugee Convention, then the notice of decision must be re-served, this time with a notice of appeal, and the time for giving notice of appeal to the Tribunal only begins to run from the deemed date of service of this re-served notice, no matter how long a period has elapsed since the date of the original notice.
If the ‘immigration decision’ in question is refusal to vary leave, the application for leave to remain having been made before the expiry of existing leave, then the leave is extended by section 3C(2)(a) of the 1971 Act until the application is decided, and is further extended by section 3C(2)(b)’during any period when an appeal could be brought’ under section 82(1)of the 2002 Act against the decision. The period when an appeal could be brought must be taken to include the time between service without an appeal form and service with an appeal form, as contemplated by the Notices Regulations. Otherwise, an appellant would be unable to give notice of appeal before his leave ran out, despite being able to make an ‘in time’ appeal as far as the Procedure Rules are concerned.
McKee J
[2011] UKUT 121 (IAC)
Bailii
Nationality, Immigration and Asylum Act 2002 88, Immigration (Notices) Regulations 2003, Immigration Act 1971
England and Wales
Immigration
Updated: 02 November 2021; Ref: scu.432804
