Anufrijeva
[2003] UKHL 36; [2004] 1 AC 604, concern the different situation in which effective notice of a substantive decision must be given before it can have legal effect. Here, the Immigration Rules stipulated at the time that the application of September 2008 was invalid when it was submitted, without any requirement of notice. In those circumstances, neither the absence nor the claimed inadequacy of the respondent’s letter from November 2008 is relevant. It is accepted that the application was on the wrong form; it was therefore invalid and was not, contrary to counsel’s submission, capable of engaging section 3C of the Immigration Act 1971. 24. Counsel made one point which had featured in the grounds of appeal. He submitted that the respondent was now more lenient to those who sought to make applications using an incorrect form. That is indeed the case. The transition to a more lenient approach began with amendment to paragraph 34C in 2012. To the version we have reproduced above was added the following: Notice of invalidity will be given in writing and deemed to be received on the date it is given, except where it is sent by post, in which case it will be deemed to be received on the second day after it was posted excluding any day which is not a business day. 25. The Immigration Rules were subsequently renumbered and it is currently paragraphs 34A-B which cover Invalid Applications. Those paragraphs provide as follows: 34A. Subject to paragraph 34B, where an application for leave to remain does not meet the requirements of paragraph 34, it is invalid and will not be considered. 34B. (1) Where an application for leave to remain does not meet the requirements of paragraph 34(1)-(9), the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification. (2) Where an applicant does not comply with the notification in paragraph 34B(1), or with the requirements in paragraph 34(G)(4), the application is invalid and will not be considered unless the Secretary of State exercises discretion to treat an invalid application as valid and the requirements of paragraph 34(3) and (5) have been met. (3) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules. 26. These amendments are of no assistance to the appellant, however. As we have explained, the Immigration Rules in force at the relevant time deemed the purported September 2008 application to be invalid. That was determinative of the position at that date and the existence of more lenient Immigration Rules or policies at a later date cannot alter the position. SF (Albania) , which was cited but not produced by counsel before us, considered an entirely different situation, in which the Upper Tribunal was invited (by the Secretary of State) to take cognisance of current policy and current facts in considering the balancing exercise under Article 8 ECHR. It is simply illogical, with respect to counsel and the author of the grounds, to suggest that today’s Immigration Rules could somehow be applied to the consideration of events which occurred when a different version was in force, particularly when there is no indication that the Rules should have such retrospective effect. 27. The respondent has a published policy which provides guidance to caseworkers on the correct approach to breaks in lawful residence such as this. It is within the Long Residence guidance dated 3 April 2017. Page 15 of that guidance states that the period of overstaying is to be calculated from the end of the last period of leave to enter or remain when an otherwise in-time application was invalid. In the appellant’s case, therefore, the period of overstaying was from 12 September 2008, when his leave came to an end, until 5 March 2009, when he was granted further leave to remain. The relevant period is around five months. In such circumstances, the guidance instructs caseworkers to consider “any evidence of exceptional circumstances which prevented the applicant from applying within the first 28 days of overstaying”. The guidance states that threshold is high but could include delays resulting from unexpected or unforeseeable causes. Serious illness, travel or postal delays or an inability to provide the necessary documents are given as examples. The circumstances in this case are wholly different. The appellant chose to apply for further leave to remain on the penultimate day of his extant leave and he used the wrong form in attempting to make that application. There are no exceptional circumstances which even arguably fall within the guidance. 28. In relation to the events of 2008, we conclude as follows. The application which the appellant attempted to make was invalid as a result of paragraph 34C of the Immigration Rules as then in force. That attempted application did not engage section 3C of the Immigration Act 1971. The respondent was not required to give notice of invalidity in order to bring about the consequences in the two preceding sentences. Judge Keith did not err in the conclusion that he reached in that regard. The fact that the Immigration Rules are now more generous, in affording an applicant an opportunity to remedy such an error, is immaterial. The respondent operates a policy regarding such gaps in lawful residence. It was not drawn to the attention of the First-tier Tribunal but it would not have made any difference to the judge’s assessment. We do not consider there to be any legal error in the decision of the First-tier Tribunal for these reasons. 29. There are additional aspects of the chronology which cause us concern. These form no part of our decision, which is premised on the conclusion that the First-tier Tribunal did not err in law in its examination of the events of 2008. We are conscious of the fact that the appellant might consider making a further application for ILR under paragraph 276B in the future, however, and the observations which follow might assist a future decision maker in considering such an application. 30. We need not repeat the events of 2016 as we have set them out at [5]-[6] above. The first point concerns the application of section 3C of the Immigration Act 1971 during the period 1 July 2016 to 28 July 2016. As we have recorded above, the appellant’s appeal was struck out on the first of these dates, and was only reinstated on 28 July 2016. Our preliminary view, to which counsel had no substantive response, was that section 3C did not apply during this period, since no appeal could properly be said to be pending within the meaning of that section for these four weeks. 31. The second point concerns the appellant’s ability to make the application he made on 28 December 2016. At that stage, it is agreed on all sides that his appeal to the First-tier Tribunal had been reinstated and was awaiting a hearing date. If his leave was extended by section 3C during that time, section 3C(4) applied, and prevented him from making an application for variation of his leave to remain whilst his leave was so extended. As counsel observed, neither of these points was taken by the respondent before Judge Keith or before us but we consider it appropriate to identify them, lest they are relevant for the future. 32. Counsel did not attempt to submit that the First-tier Tribunal had erred in its concise treatment of Article 8 ECHR insofar as it was relied upon without reference to paragraph 276B. He was right not to do so. Without reference to paragraph 276B, it is unarguably proportionate to remove the appellants and their young daughter. They will return to Bangladesh as a family and there is no proper basis for contending that such a course would give rise to unjustifiably harsh consequences. 33. In the circumstances, the First-tier Tribunal’s decision shall stand.