Derouiche v. Secretary of State for the Home Department

DEROUICHE v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
Mr J.A. O'Brien QC (Chairman), Mr M.W. Rapinet and Mr C.M.G. Ockleton
9 February 1998

Leave to enter or remain - Appeals - Application for leave to remain - Whether amended Statement of Changes in Immigration Rules (HC 395), para 32 was ultra vires - Whether application for leave which was not completed in the terms prescribed rendered the application invalid Whether a right of appeal to an adjudicator arose from a rejection of an invalid application for leave to remain - Whether rejection of an application was fair and just where the wording of the application form was misleading and imprecise - Immigration Act 1971, ss 3(2), 14(1) - Immigration (Variation of Leave) Order 1976, art 3(1) The appellant had been granted leave to remain in the UK until 24 January 1997. On 22 January 1997 the appellant signed the application form FLR(S) and sent it to the Secretary of State seeking further leave to remain as a student. On 8 April 1997 the Secretary of State treated the application as invalid and declined to consider the application pursuant to the amended para 32 of the Immigration Rules (HC 395)1[1] on the grounds that the appellant had only submitted one bank statement with the form instead of three. The appellant appealed to an adjudicator against the decision of 8 April 1997 who in turn found that, because the appellant's application had not been complete, the appellant did not have a right to appeal under s 14(1) of the Immigration Act 19712[2] and could not rely upon art 3(1) of the Immigration (Variation of Leave) Order 1976.3[3] The appellant appealed to the Immigration Appeal Tribunal. By the date of the Tribunal hearing the Secretary of State had decided to grant the appellant's application, but the parties and the Tribunal agreed to proceed in view of the issues raised by the case. In the course of the hearing the following shortcomings in the form FLR(S) were drawn to the Tribunal's attention: (a) the first page of the form stated that all 'questions' in the form had to be answered, but the form contained boxes to be ticked as well as questions to be answered, (b) the form stated that 'all' the documents specified in section 6 of the form had to be provided, but section 6 of the form stated that an applicant could, as an alternative to providing all the said documents, provide 'as many' of the listed documents as he could, (c) the form indicated, so far as financial resources of the applicant were concerned, what form of evidence would be acceptable, but did not specify what was actually required to be proved by the evidence, (d) section 7 of the form was misleading because it did not specify what documents other than the 'best' evidence would be sufficient, (e) the form, by the use of the word 'shortly', was vague as to the precise time by which the form ought to be completed. Held - allowing the appeal - (1)The Secretary of State had power under the terms of s 3(2) of the 1971 Act to make Immigration Rules as to the practice to be followed in the administration of that Act; he was also entitled to vary those Immigration Rules from time to time in order to regulate the manner in which applications were made. The Secretary of State had not, therefore, acted ultra vires the 1971 Act in either making or amending para 32 of the Immigration Rules (HC 395).

R v Secretary of State for the Home Department ex parte Immigration Law Practitioners Association followed.

(2)If an application is made to the Secretary of State under the amended para 32 and the applicant in completing the form has not followed the terms prescribed, the application would be invalid and would neither confer a right of appeal to an adjudicator under s 14(1) of the 1971 Act nor trigger the extension of time provided for by the 1976 Order, as such a rejection would not constitute 'a refusal' to vary leave but only a rejection of an invalid application. Accordingly, the adjudicator was right in finding that the application made by the appellant did not comply with the terms prescribed in para 32 and the rejection of the application did not give rise to a right of appeal. (3)As the form FLR(S), first, was prescribed, secondly, had to be treated as invalid where it was not completed in the precise manner demanded and, thirdly, had to be used by applicants who may not speak or understand English, and as the wording in the form rendered its meaning misleading and imprecise, it would be unfair and unjust to reject an application made on form FLR(S). Accordingly, the appellant's application ought to have been accepted on 22 January 1997 and that appellant should, in turn, have been considered by the Secretary of State. As the Secretary of State had failed to do so, the appeal of the appellant had to be allowed and the matter referred back to the Secretary of State for formal consideration of the appellant's application of 22 January 1997. Statutory provisions considered Immigration Act 1971, ss 3(2), 14(1) Immigration (Variation of Leave) Order 1976 (SI 1976/1572), art 3 Immigration Rules referred to in judgment Statement of Changes in Immigration Rules (HC 395), paras 32, 57(v), 60(i), (iii), 62 Statement of Changes in Immigration Rules (HC 329) Cases referred to in judgment R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others [1995] 2 AC 513, [1995] 2 WLR 464, [1995] 2 All ER 244, HL R v Secretary of State for the Home Department ex parte Immigration Law Practitioners Association [1997] Imm AR 189, QBD R v Secretary of State for the Home Department ex parte Oyeleva [1994] Imm AR 268, QBD Suthendran v Immigration Appeal Tribunal [1977] AC 359, [1977] Imm AR 44, HL Mr R. McKee (Immigration Advisory Service) for the appellant Mr N. Garnham for the respondent MR J. A. O'BRIEN QC (CHAIRMAN): The appellant, a citizen of Algeria, born on 22 August 1972, appeals against the determination of an adjudicator (Mr M. E. Deans), refusing her appeal against the decision of the Secretary of State of 8 April 1997, who refused to grant her further leave to remain in the UK, under para 62, with reference to paras 60(i), (iii) and para 57(v), of HC 395. The appellant was represented by Mr R. McKee, of the Immigration Advisory Service while the Secretary of State was represented by Mr N. Garnham, of counsel. The main ground of appeal, upon which leave to appeal was granted by the Tribunal, reads as follows: '(1)The learned adjudicator erred in law by concluding at p 4 of his determination, that "if an application is made which is not valid then the limited right of appeal conferred by s 14(1) and the Immigration (Variation of Leave) Order 1976 cannot be relied upon". It is submitted that whether or not there exists a right of appeal depends, not upon whether the application was regarded by the DRC as valid, but upon whether the rejection of the appellant's original application - submitted whilst the appellant had current leave to remain - can properly be said to amount to a "refusal to vary leave" pursuant to s 14(1). The appellant will pray in aid of the argument advanced by at 4.5G, p 15 of MacDonald's Immigration Law and Practice (Butterworths, 4th edn, 1995) supplement.' At the opening of the hearing before the Tribunal on 17 December 1997, the Tribunal, for the first time, learned that the appellant's application had, eventually, been granted by the Secretary of State and, accordingly, the Tribunal raised the point whether or not there was, in those circumstances, any appeal before the Tribunal. Having heard submissions by both Mr Garnham and Mr McKee, the Tribunal, in view of the point of law raised, decided that there was an appeal before it. Mr McKee, then, asked for an adjournment as he had only recently been instructed in the matter. The Tribunal, having heard submissions by both Mr Garnham and Mr McKee, decided that, in the circumstances, Mr McKee had had sufficient time in which to prepare his case, and that as both parties agreed that Mr Garnham should put his case first, to which Mr McKee could reply, the Tribunal declined to grant the adjournment. The Tribunal then heard submissions by Mr Garnham. Mr Garnham's main submission was that only one issue arose, namely, whether the submission of an application form which was not properly completed, amounted to an 'application' for the purposes of the Immigration (Variation of Leave) Order 1976. To understand the argument it is necessary to set out the history of the matter. Briefly, the history is that the appellant had leave to remain in the UK until 24 January 1997. On 22 January 1997 she signed an application form seeking further leave to remain. The Secretary of State regarding it as incomplete treated it as invalid and declined to consider it as an application under para 32 of the Immigration Rules. On 17 February 1997 the appellant completed and submitted another application which the Secretary of State refused, on the grounds that he was not satisfied that the appellant met the requirements of the Immigration Rules for the grant of leave to remain as a student. The reason given by the Secretary of State for stating that the appellant had no right of appeal against this refusal was that, under the Immigration Act 1971, an entitlement to appeal against the refusal to grant leave is conferred only on persons whose limited leave to enter or remain has not expired, and, as her application was made on 17 February 1997, when her limited leave had expired, on 24 January 1997, she, therefore, had no right of appeal against the Secretary of State's decision. Mr Garnham, supporting the Secretary of State's decision, relied on s 14 of the Immigration Act 1971, which gives the right of appeal, to an adjudicator, against the refusal of leave, provided that the applicant has limited leave to remain and, following Suthendran v Immigration Appeal Tribunal [1977] AC 359, argued that an applicant must have had leave at the time of the Secretary of State's decision. Mr Garnham further argued that, as art 3 of the Immigration (Variation of Leave) Order 1976 (VOLO) stated, in essence, that where a person had leave to enter or remain in the UK for a limited period and applied to the Secretary of State, before the expiry of that period, for such limited leave to be varied, then, the duration of that leave would be extended until the expiration of the twenty-eighth day after the day of the decision on the application, and, thus, VOLO would extend the duration of the original leave until 28 days after the Secretary of State's decision on the application, provided that the application is made to the Secretary of State before the expiry of the original leave. He argued that, accordingly, if the submission of the application form on 22 January 1997 was an 'application' for an extension of leave, then VOLO operated to extend leave until 28 days after the decision on that application and there would be a right of appeal against refusal. But, on the other hand, he argued, if the form submitted on 22 January 1997 was not 'an application', leave expired on 24 January 1997, and the application on 17 February 1997 was not, accordingly, made within the currency of an existing leave, and there was no appeal. It had been argued before the adjudicator that the appellant had submitted her application form on 22 January 1997, which was in time, that she had provided only one bank statement with the form, instead of three, and that it was on that ground that the application form was rejected, and it was submitted that, as the provision of three bank statements was not a mandatory one, the form should not have been rejected. Mr Garnham argued that the main question was whether the submission of the application to the Secretary of State on 22 January 1997, was sufficient to trigger the extension of leave provided by VOLO. He argued that the appellant's submission that the rejection of the application form by the Secretary of State amounted to a 'refusal to vary leave' pursuant to s 14(1), was plainly wrong as, following Suthendran, it was not enough that the applicant had leave to remain when she made her application, but that she must have had leave to remain when the Secretary of State refused the application, as the original leave had lapsed on 24 January 1997 and that the Secretary had not, by then, taken a decision. It was submitted that para 32 of the Immigration Rules had been amended, with effect from 25 November 1996, and now provides, subject to certain exceptions which are not relevant, that:

'All applications for variation of leave to enter or remain must be made using the form prescribed for the purpose by the Home Secretary, which must be completed in the manner required by the form and be accompanied by the documents and photographs specified in the form and application for such a variation made in any other way is not valid.'

He submitted that leave to move for a judicial review to challenge the vires of that amendment to para 32, was refused by Collins J on 13 November 1996, in R v Secretary of State ex parte Immigration Law Practitioners Association [1997] Imm. AR 189 where he described the effect of the amendment, at 191, as follows:

'The effect of that will be that anyone who does not make an application in the prescribed form will find that his application will not be treated as acceptable and more importantly will not be valid so that he then becomes an over-stayer and is thus subject to the criminal and other consequences that flow from that status.'

Mr Garnham then submitted that the term 'application' is defined neither in VOLO nor in the Immigration Act 1971, and that until the amendment by HC 329, there were no requirements in the Immigration Rules as to the form an application must take, but that, since 25 November 1996, there is a prescribed form. He submitted that the application form submitted on 22 January 1997 did not comply with the rules, and that accordingly it was not a 'valid application'. He submitted that all that VOLO required was that there should be an application and that if the rules defined the manner in which an application is to be made, then to achieve the extension of leave provided for by VOLO, the application must be made in accordance with the rules, which it was not. He pointed out that when Collins J rejected the challenges in ex parte Immigration Law Practitioners Association, he had well in mind that the effect of the amendment to para 32 would be to deny the right of appeal to those who would have enjoyed it under the old procedure. In conclusion, he submitted that, as there was no valid application for an extension of leave, made in accordance with the rules, VOLO did not operate to extend the leave, and there was, therefore, no extant leave when the Secretary of State decided to refuse the application; and, accordingly, there was no right of appeal under s 14. In reply, Mr McKee relied upon the grounds of appeal submitted, by the Immigration Advisory Service, and also upon the arguments submitted by the Law Centres Federation (who had withdrawn their application to intervene when the question of their locus standi had been raised), and drew our attention to, and closely examined, the actual forms which had been completed and submitted by the appellant on 22 January 1997 and 17 February 1997. Mr McKee relied upon the argument advanced at 4.5G on p 15 of MacDonald's Immigration Law and Practice (Butterworths, 4th edn, 1995) supplement. He submitted that, whether or not there existed a right of appeal, depended, not upon whether the application was regarded by the Document Reception Centre as valid, but upon whether the rejection of the appellant's original application, submitted while she had current leave to remain, could properly be said to amount to a 'refusal to vary leave' pursuant to s 14(1) of the Immigration Act 1971. He also reiterated the argument raised before the adjudicator, and submitted by the Law Centres Federation, namely that the appellant had a right of appeal under s 14 of the Immigration Act 1971 and that that right could not be taken away by a provision of the Immigration Rules. It was submitted that a provision in an Immigration Rule relating to procedure should not abrogate a statutory right of appeal and that, as the appellant had made a written request for the extension of her stay, in time, and as it constituted a valid application, she ought not to be deprived of her right of appeal by an Immigration Rule. Mr McKee, in drawing our attention to the actual applications made by the appellant, pointed out that she had faithfully followed the forms before her, had duly completed them, and that, with regard to section 6 of the form (FLR(S)), she had ticked the appropriate boxes and had, at the box requiring evidence that she had financial resources to maintain and accommodate herself and any dependant without recourse to public funds, had ticked the box but did not appear to have taken account of note 2; however note 2 stated, only, that the evidence was 'best provided' in the form of bank statements or a building society passbook covering the last 3 months, or since the time the account was opened, if shorter, but did not state what other evidence would be acceptable. He submitted that no documents were specifically required by the form, apart from note 2 and that that did not specify what particular documents would be acceptable, but only gave a general indication of what would be the best evidence. He submitted that note 6 was in the alternative, was not specific, and that the appellant had supplied everything, except those pertaining to note 2. He also argued that, on the first page of the form FLR(S), the Home Office reserved the right to consider and decide an application on the evidence provided, one month after the application had been made, and that, by making such a reservation, it implied that an applicant would not be prejudiced by any delay by the DRC in considering the application, and that, as the DRC had not informed the appellant, before the expiration of VOLO period, that she had not properly completed the form, then it was prejudicial to the appellant, and the Home Office should not be permitted to rely on their own error. The Tribunal itself, in view of the points raised by Mr McKee, sought further submissions by Mr Garnham. An exchange of views then took place between the Tribunal, Mr Garnham and Mr McKee, as to the nature and contents of the form FLR(S), and submissions made by both representatives were considered, as was the form itself. During the course of these submissions, certain suggested shortcomings in the form were canvassed, such as the requirement that all the questions applying to the applicant should be answered but that parts of the form did not have any questions, but merely required the ticking of boxes. It was also noted that, although the same form which the applicant had originally completed, on 22 January 1997, and resubmitted on 17 February 1997, had certain parts marked, they did not coincide with each other. Finally, having heard Mr McKee, we heard further submissions from Mr Garnham. We then reserved our determination, carefully considered all the evidence before us, directed ourselves that the burden of proof lay upon the appellant, and that the standard of proof is on the balance of probabilities. In this appeal, the main point for decision is whether the form submitted by the appellant on 22 January 1997, while her leave to remain was still extant, for a variation of leave to remain in the UK as a student nurse, pursuant to para 32 of HC 395, as amended by HC 329, which reads:

'With the exception of applications made under paragraph 33 (Work pen-nits), paragraphs 255 to 257 (EEA Nationals) and part ii (asylums), all applications for variation of leave to enter or remain must be made using a form prescribed for the purpose by the Secretary of State, which must be completed in the manner required by the form and be accompanied by the documents and photographs specified in the form. An application for such a variation made in any other way is not valid…',

which application the Secretary of State rejected, as not being valid as it had not being completed in the manner prescribed and had not been accompanied by the documents specified, was validly rejected by the Secretary of State. If the application of 22 January 1997 were a valid application, VOLO would operate to extend the appellant's original leave to remain until 28 days after the decision on that application had been made, namely 28 days from 22 January 1997, so that on the submission of her form on 17 February 1997, her application would have been made within the period of her leave to remain, and would, thus, be a valid application. In other words, if the application form submitted on 22 January 1997 had been in accordance with para 32, as amended, it would have been accepted and either granted or refused. If it had been rejected, as it was, and if it had been resubmitted in proper form before the expiry of the appellant's period of limited leave to remain, it could have been accepted and, then, either granted or refused. If, having been rejected, as it was, it was resubmitted in proper form, but outside the appellant's period of limited leave to remain, which period had expired on 24 January 1997, then, in the view of the Secretary of State, it was invalid as, following what had been held in Suthendran, for a right of appeal against a refusal of variation of leave to remain to be conferred upon an appellant, limited leave to remain must still be in existence, and, as the appellant had submitted her application after her limited leave to appeal had expired, she had no right of appeal. As against this contention, it has been argued that, as the appellant had made her application, while her limited leave was still extant, the period of 28 days allowed by VOLO would run in her favour, and her renewed application, on 17 February 1997, would have been within the prescribed period and would give her a right of appeal. The adjudicator, when that point had been raised before him, found as follows:

'In general term, Mr Singh's proposition, that a right of appeal conferred by statute cannot be removed by the Immigration Rules is an attractive one. However, the right of appeal conferred by s 14(1) of the 1971 Act is not an unqualified right of appeal. The exercise of the right of appeal depends upon the person concerned having in existence a limited leave to enter or remain. The provisions of the Immigration (Variation of Leave) Order 1976, referred to above, provide for such a leave to continue for 28 days after the Secretary of State's decision where an application for variation of leave has been made before the expiry of leave to enter or remain but the Secretary of State's decision has not been issued before the period of leave has expired. The right of appeal under s 14(1) therefore depends on an application having been made to the Secretary of State for a variation of leave before the expiry of the period of limited leave. Only if the application for variation of leave has been made to the Secretary of State before the expiry of the original limited leave will a person be entitled to rely on the provisions of s 14(1) as extended by the Immigration (Variation of Leave) Order 1976...

In the case before me the Home Office gave a decision on the application of 17 February 1997 but not on the application of 22 January 1997. Soyemi is therefore not entirely in point. In Soyemi it was argued that as an application had been treated as such in fact by the Home Office it could not be subsequently argued that it was not in law an application. In the current case the application of 22 January 1997 was not treated as an application in fact by the Home Office.

Under s 4(1) of 1971 Act the power to vary leave to remain in the UK is exerciseable by the Secretary of State. In terms of s 3(2) the Secretary of State may make rules as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the UK of persons subject to immigration control under the Act. It is under this provision which the amendment to the rules in HC 329 was made. This requires applications for variation of leave to enter or to remain to be made in a required manner.

In my view the existence of a right of appeal under s 14(1) of the 1971 Act and under the Immigration (Variation of Leave) Order 1976, when read in conjunction, depends upon an application for a variation of leave to enter or to remain having been made to the Secretary of State. It appears to me that in terms of ss 3(2) and 4(1) of the 1971 Act the Secretary of State is entitled to require that applications be made in a certain form. The Secretary of State has so required in terms of HC 329 which further states that an application made in any other way is not valid. If an application is made which is not valid then the limited right of appeal conferred by s 14(1) and the Immigration (Variation of Leave) Order 1976 cannot be relied upon. These provisions can only be relied upon where the person seeking a variation applies to the Secretary of State before the expiry of the limited leave to remain.'

The basis of the appeal against the determination of the adjudicator is that the rejection by the Secretary of State of the appellant's application form, submitted on 22 January 1997, was a 'refusal to vary leave' under s 14(1) of the 1971 Act, and that, in those circumstances, her limited leave to remain would have been extended by 28 days under VOLO, and that her application of 17 February 1997 would have been in time, and that she had, therefore, a right of appeal against any refusal of her application. In the course of the arguments before us, what was held in Suthendran was not in question, but the decision of the Divisional Court in R v Secretary of State ex parte Immigration Law Practitioners Association was raised and argued upon in some detail, particularly in the written submissions by the Law Centres Federation, which were adopted by Mr McKee. In the ILPA case, Collins J giving his views on the effect of para 32, as amended, stated at 191-192, as follows:

'The effect of that will be that anyone who does not make an application in the prescribed form will find that his application will not be treated as acceptable and more importantly will not be valid so that he then becomes an overstayer and is thus subject to the criminal and other consequences that flow from that status. It is said that that is, as indeed it is, a fundamental change in the way in which the Act is to be administrated...

The question whether an application was made and validly made was dealt with by virtue of the rules because it was part and parcel of the rules that there should be an application made within the period during which the individual was lawfully here pursuant to whatever limited of leave he had. Accordingly, as it seems to me, any judicial definition as to what constituted a valid application was referable to the rules and not to the Variation of Leave Order, although no doubt in many cases that came before the courts the question as to whether an application was or was not a valid one was dealt with within the Variation of Leave Order because the applicant in question was claiming appeal rights which had been denied to him, it being said by the Secretary of State that he had not put in an application within time.'

We have carefully considered the points raised by Mr McKee, in argument before us, the points raised by the Law Centres Federation and the submissions of Mr Garnham, and, as we see the whole matter, the situation in law is, as stated by Collins J in the ILPA case, where, having considered R v Secretary of State for the Home Department ex parte Oyeleva [1994] Imm AR 268 and R v Secretary of State for the Home Department ex parte Fire Brigade Union and Others [1995] 2 AC 513, he found that the Secretary of State had the power under the terms of s 3(2) of the Immigration Act 1971, to make rules as to the practice to be followed in the administration of that Act and that he is entitled to vary the rules from time to time to regulate the manner in which applications are to be made. In our opinion, the Secretary of State did not act ultra vires the Act in making para 32 or in amending it, and that where an application is made to him under para 32, as amended, such application, if it does not follow the terms prescribed, is not valid and, therefore, it does not trigger the extension of time under VOLO, as such a rejection does not constitute 'a refusal to vary leave'; there being no refusal to vary the leave, only a rejection of an invalid application. The Tribunal, having so found, now turns to the other points raised by Mr McKee, replied to by Mr Garnham and canvassed in some detail by the Tribunal itself. The Tribunal has carefully examined the form FLR(S) which the appellant used in making her initial application on 22 January 1997, which application was rejected by the DRS on behalf of the Secretary of State. In so examining that form, the Tribunal has taken careful note of the terms of para 32 as amended, and, in particular, has noted the words:

'...all applications for variation of leave to enter or remain must be made using the form prescribed for the purpose by the Secretary of State, which must be completed in the manner required by the form and be accompanied by the documents and photographs specified in the form.'

The Tribunal has noted that the first page of the form (FLR(S)), states, first:

'You must complete this form answering all the questions that apply to you.'

Having examined this statement, the Tribunal has looked at the form but, while quite a number of questions are asked in it, a large number of items are not in the form of questions but merely require the ticking of various boxes. The Tribunal asks itself, then: Is it proper that a prescribed form which, if not properly filled in, must be considered invalid, should be worded in such a way, for, as the form stands, questions are required to be answered, but the boxes are not required to be ticked? The next sentence on the first page of the form reads as follows:

'You must also provide all the documents specified in section 6 of the form or give reasons which the Secretary of State considers satisfactory as to why missing documents cannot be provided and explaining when they will be provided.'

However, when one reads section 6, it is written in the alternative. It states that either all the documents listed below be provided or as many as the applicant can provide, with a document (for example a letter) explaining why the missing ones cannot be provided now or can only be provided as a photocopy. But, with regard to the financial resources of the applicant, a document is not required; evidence, only, being required. Such evidence is purported to be specified in note 2. When the Tribunal looks at note 2, however, all it states is:

'This evidence is best provided in the form of bank statements or a building society passbook covering the last 3 months, or since the time the account was opened if shorter.'

Thus, while the form states what the best evidence is, it does not state, specifically, what is actually required. Likewise, section 7 states 'You must also provide all the required documents', but as note 2 states what is the best evidence, without stating what other evidence would suffice, it is, as we see it, misleading to require documents which are not specified. Particularly as failure to comply with the letter of the form can have such drastic effects. Also, while the form requires strict completion, or otherwise it is rendered invalid, it is peculiar that, on the first page, it is stated:

'You should fill in this form and send it to us shortly before your leave to enter or remain in the UK runs out.'

The words 'shortly before your leave to enter or remain in the UK runs out', the emphasis is ours, without more, when, if it is completed within a day or so before the leave runs out, which period will come within the meaning of 'shortly', and for some technical fault, it is rejected, the application is rendered invalid and the applicant may be, and in most cases would be, left without any right of appeal, as VOLO would not be brought into play. If, as we see it, the precise completion of the form is strictly required, then the use of a word as vague as 'shortly' ought not to be used, but a longer and more precise length of time ought to be specified, in which the application should be made. As we see this situation, we find that, where a form such as FLR(S), is prescribed and where such a form must be treated as invalid where it is not completed 'to the letter', and where such a form is for the use of applicants from foreign countries, who, in most cases, may not speak or understand English, wording such as that used in the form, to which we have referred, ought not to be used as, in our view, it can mislead an applicant and can cause the applicant to fail to supply what is required, solely, in many cases, through lack of clarity in the form itself, and thus cause the applicant to fall foul of para 32, as amended, and leave the applicant without a right of appeal. In those circumstances, we consider that the DRC, by acting as it did, in the light of the lack of clarity in the form itself, was unfair to have rejected the initial application of 22 January 1997 and, on the balance of probabilities, we find that the Secretary of State ought not to have rejected the original application of the appellant. Accordingly, while we find that, in law, a rejection of an application which did not comply with what was prescribed in para 32, as amended, did not constitute 'a refusal to vary leave', did not bring VOLO into play, and was not invalid, and find that, to that extent, the adjudicator was right in his finding. Nevertheless, we find that, as the form FLR(S) was worded in such a misleading and imprecise way, the rejection of it by the DRC on behalf of the Secretary of State, was unfair and unjust; we find that it ought not to have been rejected; and we find that it ought to have been accepted on 22 January 1997, thus making it an in-time application, which the Secretary of State ought to have considered, and which he failed to do. To this extent, therefore, we find that, in the particular circumstances of this case the appeal is allowed, on that aspect of the matter, only, but is dismissed on the challenge to the Secretary of State's interpretation of para 32 as amended by HC 329. This appeal is, accordingly, allowed, to the extent stated above, and this whole matter is referred back to the Secretary of State for formal consideration of the appellant's application of 22 January 1997, which, as we are informed, he has already done, in any event. Solicitors: Treasury Solicitor for the respondent

[1] Paragraph 32 of HC 395 was amended by HC 329. [2] The relevant part of s 14(1) reads: 'Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of leave (whether as regards duration or conditions), or against any refusal to vary it;…'. [3] Article 3(1) reads: 'Where a person has leave to enter or remain in the United Kingdom for a limited period and applies to the Secretary of State before the expiry of that period for such limited leave to be varied, then, except in a case falling within paragraph (2) below, the duration of his leave shall, by virtue of this Order, be extended until the expiration of the twenty-eighth day after either the date of the decision on the application or, if the application is withdrawn, the date of the withdrawal of the application'.

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