Mirza
[2016] UKSC 63 ; [2017] 1 WLR 85 and OS (Russia)
[2012] EWCA Civ 357; [2012] 1 WLR 3198, he submitted that unless there was proper notice of invalidity, the application was valid. Even if it was de facto invalid, he submitted that it was not de jure invalid. The burden was on the respondent, submitted counsel, to show that the application was invalid and she had failed to do so. The significance of this was that the application of 11 September 2008 was to be treated as valid and in-time, with the consequence that the first appellant had enjoyed statutorily extended leave under section 3C of the Immigration Act 1971 throughout the period in question. As a result, counsel submitted that the first appellant had enjoyed continuous leave between from January 2007 to January 2017 and the judge of the FtT had erred in concluding otherwise. 12. We observed to counsel that these arguments did not feature at all in the grounds which had been presented to the FtT, the UT or the Administrative Court. At all previous stages, the grounds had proceeded on an acceptance that there had been a gap in the appellant’s lawful residence as a result of the problem with the September 2008 application. There had been no application to vary the grounds, nor had there been any notice to the Tribunal or the respondent that a new point was to be taken. In the circumstances, we put this case back in the list to give counsel an opportunity to consider whether he wished to develop submissions on the grounds of appeal. 13. On reconvening, counsel submitted that there had been no formal concession made that the September 2008 application had been invalid; that the grounds for judicial review in any event contained this ‘theme’; that the respondent had been on notice that this point might be in issue; and that the respondent’s current approach to the use of incorrect forms demonstrated some leniency, which was relevant to the way in which the Tribunal should consider the point: SF (Albania) [2017] UKUT 120 (IAC); [2017] Imm AR 1003. 14. We asked counsel to consider the version of paragraph 34C of the Immigration Rules which had been in force in September 2008 and to consider whether the stipulation that an application which did not comply with paragraph 34A ‘will be invalid and will not be considered’ might distinguish the situation from that which arose under the Biometric Regulations in Mirza . Counsel was not able to make any submission in response. We also asked counsel about two aspects of the chronology which we have set out at [4] above. Firstly, whether it could properly be said that an appeal was pending between the date on which it was lodged without payment of a fee and the date on which it was reinstated when the fee was received. He was unable to assist us on that point. Secondly, we asked whether the appellant could properly be said to have made a valid application for ILR in December 2016, given that his leave was said to be extended by operation of section 3C of the Immigration Act 1971 at that point. Counsel was unable to assist us with this point either, although he noted that the respondent had expressed no concern in her original decision about the continuity of lawful residence in 2016. 15. In the circumstances, we indicated that we did not need to hear from the Presenting Officer and that the appeal would be dismissed for reasons which would be given in writing.