R (Topadar) v SSHD [2020] EWCA Civ 1525
This case considers the nature of administrative review and the point at which an application may be varied. The Appellant submitted that the application seeking to vary the existing leave and to be granted leave to remain as a Tier 2 (General) Migrant was not determined until an administrative review was complete. This would mean that an application could be varied after it had been refused until the administrative review process had been completed (para 34). The SSHD contended that an applicant can vary their application before it is determined but not after (para 36).
The Court of Appeal held that admin review is separate from the process of deciding an application. Administrative review determines whether “the decision” is wrong. The Court also held that section 3(2) of the Immigration Act 1971 provided a lawful basis for admin review. It was noted that the provisions of section 3C distinguish between decisions and admin reviews of those decisions.
At para 59, Lewis LJ refers to recent case of R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 and says that:
“The majority of the Supreme Court was not intending, in my judgment, to establish an absolute or universal requirement that the respondent must give the appellant prior notice of something that might affect the consideration of an application with a view to the applicant being able to take steps to address that matter.”
The ground of appeal relating to procedural fairness was dismissed and R (Pathan) was distinguished (paras 50 to 62).