ME (Sri Lanka)
[2018] EWCA Civ 1486, the arguments which can be raised on appeal are limited by the grounds of appeal for which permission has been granted: [22]. These observations apply with equal force to appellate proceedings before the Upper Tribunal. An application may be made to vary the notice of appeal but, in the absence of such a notice, advocates should expect that scope of their argument will be restricted to the grounds upon which permission was granted. 17. Judge Kebede’s decision was quashed by the order made by Master Gidden. Permission to appeal was then granted by the Vice President. The grounds upon which permission was granted were obviously those which were presented originally to the Upper Tribunal, no other grounds having been advanced to the Upper Tribunal. Two points were advanced in those grounds. Firstly, that Judge Keith had erred in failing “to consider whether discretion should be exercised to disregard the break in the First Appellant’s lawful residence”. Secondly, that the proceedings before the FtT had been procedurally unfair because the respondent had failed to bring relevant policy guidance to the attention of the judge. Neither of those grounds contain a glimmer of the argument which counsel sought to advance before us, which was that the application of September 2011 was valid, or was not correctly classified as invalid in circumstances in which the respondent had given no, or no adequate, notice of invalidity. It was improper, in these circumstances, for counsel to seek to advance this argument before us. In any event, the point is wholly without merit, for the following reasons. 18. It is accepted by the appellant that he submitted the wrong application form on 11 September 2008. He submitted his application on Form FLR(S), version 04/2008. On 18 August 2008, however, a new version of the form was issued. This was version 08/2008, which was specified for use in applications made on or after that date. When the appellant came to make his application in mid-September 2008, it was the newer version of the form which was to be used. 19. At the time that the appellant made this application, the Immigration Rules stated, at paragraph 34A(i), that an application must be made using the specified form. Paragraph 34C of the Immigration Rules was inserted by HC321 on 29 February 2008. From that date until its amendment on 9 July 2012, it provided as follows: Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered. 20. Counsel sought to submit that the respondent had not given notice of the invalidity of the application, or that she had given inadequate notice. He submitted that the application was deemed to be valid until such notice was provided. He relied upon Mirza in support of that submission. As we suggested to counsel, however, the decision in Mirza is of no assistance to him. 21. The first two appellants before the Supreme Court had failed, in making their applications for further leave to remain, to comply with the Immigration and Nationality (Fees) Regulations 2011, reg 37. The third appellant had failed to comply with the Immigration (Biometric Registration) Regulations 2008, reg 3. In respect of the first two appellants, who had failed to provide the requisite fees with their applications for leave to remain, the Supreme Court held that regulation 37 was unambiguous. It provided that an application which was not accompanied by the specified fee was not validly made. Lord Carnwath, with whom the other Justices agreed, observed at [33] that “an application which is not validly made can have no substantive effect” and could not engage section 3C of the 1971 Act as a result. 22. In respect of the third appellant, who failed to comply with the biometric regulations, the position was different, because the requirement to enrol biometric information only arose at a later stage, on receipt of a notice from the respondent: [36]. In those circumstances, Lord Carnwath was unable to accept that the subsequent failure to provide the information should be treated as retrospectively invalidating the application from the outset, thereby nullifying the previous extension of her leave under section 3C: [37]. In respect of those regulations, the respondent had a power to treat the application as invalid and the applications only became invalid from the point that notice was provided. 23. The appellant’s situation is materially indistinguishable from the situation in which the first and second appellants before the Supreme Court found themselves. His application was invalid when it was made, or purportedly made, because that was the outcome mandated by paragraph 34C. The respondent was not required to give notice in order to render the application invalid. OS (Russia) , or indeed