England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE GIBB

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/07/2010

Lord Justice Pill :

1. This is an appeal from a decision of the Asylum & Immigration Tribunal ("the Tribunal") (Senior Immigration Judge Gill) notified on 21 July 2009. In issue in this appeal is a direction issued by the Tribunal (Immigration Judge Gibb) on 17 March 2009 that the Secretary of State for the Home Department ("the respondent") should grant IT (Sierra Leone) ("the appellant") indefinite leave to remain ("ILR") in the United Kingdom.
2. The appellant is a citizen of Sierra Leone and is 36 years old. He has been in the United Kingdom since December 1993. On 7 August 2008 the respondent decided that the appellant should be removed from the United Kingdom. She refused the appellant's application to remain, which relied on article 8 of the European Convention on Human Rights.
3. The appellant exercised the right, under section 82(2) of the 2002 Act, to appeal against the decision to remove. On 27 October 2008 the Tribunal (Immigration Judge Gibb) allowed an appeal against that refusal on article 8 grounds. By letters of 4 and 5 February 2009, the appellant was told that he did not qualify for leave to remain under the Immigration Rules but he was granted discretionary leave to remain for three years, that is until 5 February 2012. That was stated to be the "appropriate grant" in the circumstances. Read together, the letters refer to the appeal having been allowed on article 8 grounds and to the principles set out in the Home Office Policy Instruction on Discretionary Leave.
4. The appellant applied to Immigration Judge Gibb to give a direction to the respondent to grant ILR. On 17 March 2009, the judge stated:

"I therefore add to my determination a direction that the Secretary of State should grant the appellant indefinite leave to remain in the UK."

5. The respondent sought reconsideration of the Tribunal's decision on the ground that the Immigration Judge no longer had jurisdiction to give a direction and that, in any event, it was for the Secretary of State and not for the Immigration Judge to decide what type of leave should be granted. Reconsideration on these grounds was ordered on 8 April 2009. On the reconsideration, Senior Immigration Judge Gill stated, at paragraph 55:

"For the reasons given above, the Immigration Judge did materially err in law, in that, he had no power to issue the direction when he did. I have therefore gone on to reconsider the appeal. In this connection, I noted that the Respondent has not challenged the Immigration Judge's decision to allow the Appellant's Article 8 claim. Accordingly, I have decide to substitute the Immigration Judge's decision with a decision allowing the appeal on human rights grounds (Article 8) but which does not include a direction."

In reaching that conclusion, Judge Gill stated that it was too late for Immigration Judge Gibb to have made a direction (paragraph 28) and that in any event the direction went beyond the permitted purpose of "giving effect to the [the Tribunal's] decision" and was invalid (paragraph 49).

6. On behalf of the appellant, Mr Middleton submitted that, in the circumstances, it was within the powers of the judge to give a direction and that it was not too late to do so. In the course of the hearing, the first submission developed into an argument that, on the findings of Immigration Judge Gibb in October 2008, the respondent was obliged to grant indefinite leave to remain.
7. The court was addressed on Section 87 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). That provides:

"Successful appeal: direction

(1) If the Tribunal allows an appeal under section 82, 83 or 83A it may give a direction for the purpose of giving effect to its decision.

(2) A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).

(3) But a direction under this section shall not have effect while—

(a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,

(b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,

(c) an appeal has been remitted to the Tribunal and is awaiting determination,

(d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,

(e) an appeal under section 103B or 103E is awaiting determination, or

(f) a reference under section 103C is awaiting determination.

(4) A direction under subsection (1) shall be treated as part of the Tribunal's decision on the appeal for the purposes of section 103A."

Section 103A made provision for an appeal to the 'appropriate court' on the grounds that the Tribunal had made an error of law.

8. The appeal in my view turns on the first issue and, if I am right about that, there will be no need to attempt a ruling on the timing issue. For the respondent, Miss Chan relied on the decision of this court in Farinloye v Secretary of State for the Home Department [2010] EWCA Civ 203. In that case, three appellants, whose article 8 appeals were allowed, were granted three years' discretionary leave to remain. By judicial review, it was claimed that the Secretary of State had erred in refusing to grant ILR.
9. On appeal to this court the claim was rejected. Richards LJ, with whom Dyson LJ and Jackson LJ agreed, stated:

"25. Further, an appeal under section 82(1) against an immigration decision must be brought on one or more of the grounds set out in section 84(1) of the 2002 Act. The only applicable ground, and the ground on which the immigration judge's decision was based, was (g), namely "that removal of the appellant from the United Kingdom in consequence of the immigration decision … would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights". That underlines the point that the appeal was against the decision to remove the claimants, not against the refusal of leave to remain.

26. Accordingly, the immigration judge did not allow appeals against the Secretary of State's refusal of leave to remain, but against the decision to remove the claimants from the United Kingdom. It is this feature which, as Ms Naik again accepted, distinguishes the present case from Ex parte Boafo [[2002] 1 WLR 1919], where the appeal was indeed against the refusal of indefinite leave to remain, in circumstances where the appellant claimed to be entitled to such leave under the Immigration Rules [rule 287].

27. This not only destroys the central plank in Collins J's reasoning but also leads into the next part of the Secretary of State's case. Mr Patel submits that the immigration judge's determination did not and could not compel the Secretary of State to grant the claimants indefinite leave to remain in the United Kingdom. The power to grant leave to remain is a discretionary power entrusted to the Secretary of State by section 4(1) of the Immigration Act 1971. Because, as held by the immigration judge, it would be unlawful for the Secretary of State to remove the claimants from the United Kingdom, the Secretary of State had to decide whether to exercise his discretion to grant leave to remain and, if so, for how long. The Secretary of State was entitled to have regard to the policy on discretionary leave and to grant leave in accordance with that policy".

10. The court in that case refused permission to the claimants to appeal to argue that the only rational response to the Immigration Judge's determination was the grant of ILR. Miss Chan submitted that the present case was a pure removal appeal and relied on article 8. A grant of 3 years leave to remain, as distinct from a longer leave, cannot be said to be in breach of article 8.
11. Mr Middleton accepted that, faced with Farinloye, he cannot now argue that Immigration Judge Gibb had power to direct the respondent to grant ILR. The Tribunal's power to give directions is a power which may be exercised only "for the purpose of giving effect to its decision". The decision was that the appellant could not be removed from the UK. A direction to grant ILR was not a direction for the purpose of giving effect to a decision that, because of article 8, the appellant could not be removed. As in Farinloye, it was the decision to remove the appellant from the United Kingdom that was quashed. There may be situations, such as Ex parte Boafo, where on a refusal to grant ILR under the Immigration Rules, a direction to grant ILR may be made on appeal to the Tribunal.
12. The court heard Mr Middleton, without objection from Miss Chan, to argue that the only rational response to the Immigration Judge Gibb's determination was the grant of ILR. Consideration of that issue involves analysis of Immigration Judge Gibb's reasoning. When giving his direction on 17 March 2009, the judge, who did not have the advantage of the decision of this court in Farinloye, directed the Secretary of State to grant the appellant indefinite leave to remain in the UK because there were "good reasons not to follow the normal course of 3 years' discretionary leave". In his determination, the judge referred to the appellant's long residence in the United Kingdom, to his present partner, whom he met in 1999, having ILR and to two children who have since been born to them. One of the children is a British citizen. The appellant has another child, who is living in the UK, from another relationship.
13. The judge had no doubt about the genuineness of the relationship with his partner or the appellant's close relationship with his two children. He accepted as good the reasons put forward for the family not being prepared to countenance relocating to Sierra Leone. The judge concluded, at paragraph 43:

"The correct response now, in my view, would be to give the appellant leave in line with the rest of his family, thus ending the long period of uncertainty about his immigration status, and giving him the ability to be able to work, as well as continuing his family life, caring for his children, and supporting his wife in her education and career development."

The submission was that, the judge having given that indication, the respondent could not rationally refuse to grant ILR.

14. The point has arisen in an application for judicial review of a decision of the respondent to grant discretionary leave to remain in the UK for three years along with a refusal to grant ILR in R (Islam Shahid) v Secretary of State For The Home Department [2004] EWHC 2550 (Admin). Gibbs J put it appropriately at paragraph 45:

"In my judgment, even taking the understandable criticisms made of the Secretary of State by the [immigration judge] at their highest, they do not render the Secretary of State's decision to grant discretionary rather than indefinite leave irrational. It is certainly true that there is no particular reason to think that the claimant's circumstances will change in the next two or three years so as adversely to affect consideration of his case under the policy. But I cannot see that that is in itself a reason to grant indefinite leave to remain. As I have said, a change of circumstances is at least a significant possibility."

Gibbs J added, at paragraph 47:

"The application of the Secretary of State's [then] policy, together with the decision itself, make it likely that in the absence of any substantial change of circumstances the claimant will in due course qualify for indefinite leave to remain. If he, for any reason, in future receives an unfavourable decision from the Secretary of State despite no substantial change of circumstance he will be entitled to a human rights appeal against that decision. However, as I have said, the policy itself indicates a presumption in favour of the claimant being permitted to remain indefinitely in this country provided that there is no substantial change of circumstance or reason to the contrary."

15. Following a successful article 8 appeal, the respondent cannot remove the appellant but it is for her to decide whether to exercise her discretion to grant leave to remain and, if so, for how long. It was for the respondent, and not the Tribunal, to decide the length of leave to remain. If a further attempt at removal were to be made, the article 8 submission could be repeated, as contemplated in Islam Shahid. There was nothing irrational in limiting leave to remain to three years. Events might occur during that period which would seriously damage the appellant's claim that he should be permitted to remain on article 8 grounds.
16. If that conclusion is correct, it is not necessary to decide whether, either in this case or generally, any direction under section 87(1) must be given when the decision is notified. Submissions have been made on the wording of section 87 and on practical advantages claimed for one view or the other. Any ruling on that issue should, in my view, be given, in a context in which the Tribunal has jurisdiction to give it and not in the present case. I have no doubt, however, that if a direction under section 87(1) is to be sought from the Tribunal, the issue should normally be raised and submissions made at the hearing before the Tribunal. Further, it appears to me unlikely that an application for a direction to an Immigration Judge 3½ months after the judge had made his decision was contemplated in the statutory scheme.
17. A further point on the timing issue that arose at the hearing was whether the application for a direction was necessary at all because a direction, if there was power to make it, was implicit in the wording of paragraph 43 of Immigration Judge Gibb's decision. While I accept that there could be situations in which a direction is implicit in the reasoning, even if the word direction is not used, it is important that judges are explicit both when making a direction and in stating its substance. I doubt whether a direction can be read into paragraph 43 even if there was jurisdiction to direct, which there was not. Immigration Judge Gibb did not consider he had made a direction; he stated on 17 March 2009: "I have decided to add a direction for indefinite leave".
18. For the reasons given earlier, I would dismiss this appeal.

Lord Justice Sedley :

19. I agree with both judgments.

Lord Justice Lloyd :

20. I agree with Pill LJ that this appeal should be dismissed because, in a case such as this (unlike, for example, Boafo) it is not for the Tribunal to decide whether an appellant should be granted leave to remain, and if so on what basis, following a ruling that he or she may not be removed from this country because to do so would be in breach of rights under the ECHR. A challenge to a refusal to grant indefinite leave to remain can only be brought by way of judicial review, and not to the Tribunal. I also agree that the precedent of Islam Shahid is not encouraging as regards such a judicial review application.
21. It follows, as Pill LJ says, that it is not necessary to decide the timing issue. Senior Immigration Judge Gill decided against the appellant on this point because she considered that, unless a direction were given at the same time as the substantive decision, it would not fit with the provisions as to appeals, nor with the provisions of section 87(3) as to the suspension of the effect of a direction.
22. Although it is not necessary for our decision, I would make the following brief comments on the point. I agree with Pill LJ that it is desirable that a direction should be given at the same time as the decision and, if the need for a direction is foreseen, the Tribunal should be addressed on the point at the hearing of the appeal, rather than afterwards. Nevertheless, the power created by section 87 is ancillary to the process of determining appeals and it seems to me that, especially as decisions are promulgated in writing, not at a hearing, there could be circumstances in which the need for a direction is not anticipated before the decision is received. It would be unfortunate if the enabling power to make a direction could not be exercised in such a case. It is true that the appeal provisions and section 87(3) do not fit neatly with the possibility of a subsequent direction, but permission to appeal can be granted late, as it was in this case, and if it is then the suspensive effect of section 87(3) would come into operation.
23. I agree with Pill LJ that, if a direction is to be made, it should be made clearly and expressly, and that three and a half months is a long time after the event to apply for a direction to be made. I note that much of that delay in the present case was due to a tardy response on the part of the respondent to the appellant's solicitors' request on the point. As we have decided, the request was not justified in this case, but if it had been, I would be reluctant to suppose that delay caused in those circumstances would necessarily be fatal.
24. I emphasise that these are no more than comments on the timing point. They are no part of the decision of this appeal, as to which I entirely agree with Pill LJ.