COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
HHJ McKENNA QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
LORD JUSTICE AIKENS
| R ON THE APPLICATION OF RK (NEPAL) )
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Denis Edwards (instructed by Treasury Solicitor, London) for the Respondent
Hearing dates : 18 March 2009
Crown Copyright ©
Lord Justice Aikens :
"10. Removal of certain persons unlawfully in the United Kingdom
(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if
(a) having only a limited leave to enter or remain, does not observe a condition attached to the leave or remains beyond the time limited by the leave;(b) he has obtained leave to remain by deception; or(c) directions ("the first directions") have been given for the removal, under this section, of a person ("the other person") to whose family he belongs.
(8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force.."
"82. Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,..(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in United Kingdom),
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
" "84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds
(a) that the decision is not in accordance with immigration rules;(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;.(e) that the decision is otherwise not in accordance with the law;(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;"
"92. Appeal from within United Kingdom: general
(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j)."
"Grounds on which leave to enter or remain may be curtailed
323. A person's leave to enter or remain may be curtailed:
(i) on any of the grounds set out in paragraph 322(2)-(5) above; or
(ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted; or
(iii) if he is the dependant, or is seeking leave to remain as the dependant, of an asylum applicant whose claim has been refused and whose leave has been curtailed under section 7 of the1993 Act, and he does not qualify for leave to remain in his own right.
(iv) on any of the grounds set out in paragraph 339A (i)-(vi) and paragraph 339G (i)-(vi)."
Miss Jones notes in particular Rule 323 (ii).
"21. Failure to comply with conditions
Although the provision to curtail exists where a person fails to observe the conditions of leave to enter or remain, it will be more usual to proceed direct to administrative removal for breach of conditions Curtailment should therefore only be considered where the person's actions are not so serious as to merit enforcement action, but where it would be inappropriate to let him remain for the duration of his leave."
"Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(viii) any representations received on the person's behalf."
Section 10(1)(a) - breach of conditions
"2.1.2 A person is liable to administrative removal under section 10 if he fails to comply with a condition of his limited leave e.g. if he is found to be working in breach of a restriction or prohibition on employment, The breach must be of sufficient gravity to warrant such action.
In the case of a person found to be working in breach of a restriction or prohibition on employment, there must be firm and recent evidence (within 6 months) of working in breach, including one of the following:
A statement by the employer implicating the suspect; Documentary evidence such as pay slips Sight by the [Immigration Officer], or by a police officer who gives a statement to that effect, of the offender working, In practice, this should generally be backed up by other evidence. ",
The arguments of the parties
The decisions in the CD case and the Saleh case.
"[It should] calibrate the use of judicial review, through the use of judicial discretion, to the nature of the issue or issues. In this way and, so far as I can see, in no other way the High court can remain loyal to what was decided in Khawaja by consistently retaining jurisdiction to determine the existence of preconditions of liability to removal, as well as other questions of law apt for the High Court's determination, but can also respect the policy of section 82 by declining to entertain challenges on issues more apt for the appeal mechanism, whatever their hardships".
Lord Justice Moses:
Lord Justice Waller