An unrepresented claimant has been unsuccessful in her challenge to the Home Secretary’s decision to void her indefinite leave to remain application because she submitted a second application to the EU Settlement Scheme. The decision was not communicated to the claimant until it was disclosed during her appeal against the refusal of her EUSS application and so it is very easy to see why she felt aggrieved. The case is R (Scott) v Secretary of State for the Home Department [2024] EWHC 3110 (Admin).
The claimant is a US national who came to the UK on a post-graduate student visa in January 2010. On 17 March 2021 she applied for indefinite leave to remain based on her ten years’ residence. In June 2021 while that application was still pending, the claimant made an application to the EU Settlement Scheme based on her status as someone with a Zambrano right to reside. That application was refused on 26 July 2022, her appeal to the First-tier Tribunal was unsuccessful and her Upper Tribunal appeal is stayed behind Celik which is awaiting a decision on permission to appeal to the Supreme Court.
On 14 February 2022 the claimant’s application for indefinite leave to remain was deemed void under paragraph 34BB of the immigration rules. The claimant was not notified of this until June 2023 when, during her EUSS appeal, her lawyers asked for an update on the indefinite leave application.
On 13 September 2023 the claimant applied for judicial review of the decision to void the application. The grounds of challenge were whether the Home Secretary was correct to treat the indefinite leave application as voided by the EUSS application and whether the claimant should have been notified of the voiding decision.
The Home Secretary’s position was that once the EU application was submitted it automatically voided the indefinite leave to remain application under paragraph 34BB of the immigration rules and that there was no requirement to notify the claimant of this.
The claimant relied on the consent order agreed in the Akinsanya litigation in 2021 the relevant part of which said the following in relation to the voiding of applications under 34BB:
(d) To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application
During the hearing it transpired that the claimant’s position arose from a misunderstanding of which immigration rules applied at the time of the decision.
In February 2022 when the decision to void was made, EU10(2) stated: “In paragraph 34BB of these Rules, sub-paragraphs (3) to (5) do not apply to applications made under this Appendix”
Paragraph 34BB stated:
34BB. (1) An applicant may only have one outstanding application for leave to remain at a time.
(2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application
The court agreed with the Home Secretary that the effect of the rules at the relevant time was that the first application was voided by the second. The court said that the consent order in Akinsanya did not apply as the facts in this case were different.
The second ground was also dismissed as paragraph EU10(2) expressly disapplied the requirement to serve notice of invalidity in writing.
This case is really an illustration of how difficult navigating the UK’s immigration processes, and in particular the rules, are without a lawyer.
