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: