ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
LORD JUSTICE MOSES
Re Appellants 1, 2, 3 & 4
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Re Appelant 5
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| THE QUEEN ON THE APPLICATION OF
1. AMIR MIRZA
2. SAMIR ABBASI
3. POOJA BAROT
4. DIVYESH PATEL
5. BHUMILA MOTEE
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr David Blundell (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 25 and 26 January 2011
Crown Copyright ©
Lord Justice Sedley:
The story so far
The statutory scheme and the rules
(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;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities);
(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;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(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;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
(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 (removal of a person unlawfully in the United Kingdom).
But it is self-evidently only when such a removal decision is taken that the right of appeal arises.
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:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.
In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.
(8) In determining an appeal against a decision (whether before or after 20 July 2006) to give directions under s 10 (as distinct from directions for removal of an illegal entrant) the Tribunal should first consider whether the decision shows, by its terms, that the decision-maker took into account the factors set out in paragraph 395C and exercised a discretion on the basis of them. If it does not, the appeal should be allowed on the basis that it was not in accordance with the law and that the appellant awaits a lawful decision by the Secretary of State. If the decision was made properly, the Tribunal should secondly consider whether the removal of the appellant would breach his rights under the Refugee Convention or the ECHR, and, if not, thirdly whether the discretion under paragraph 395C should be exercised differently, ….
41. These provisions of the Immigration Rules have had effect since 2 October 2000. In their case, the change on 20 July 2006 was certainly not substantive. The change was to insert into paragraph 395C the words which, as we have seen, were before that date in paragraph 364. Until then, paragraph 395C had simply contained a reference to those words in paragraph 364. Following their deletion from paragraph 364, they needed to be set out in full in paragraph 395C.
42. The "old learning", if we may so express it, on those subject to removal under s 10 was that their rights of appeal were severely limited. They could appeal on the ground that they were not in truth liable to removal, or on the ground that their removal would breach the Refugee Convention or the Human Rights Convention, but little else was available to them. During the course of argument relating to the scope of the right of appeal against deportation decisions, it emerged that the Secretary of State's view was that the scope of an appeal against a decision to remove under s10 should not be so narrowly construed. After taking instructions again over the short adjournment, Mr Eicke confirmed that the Secretary of State's view was that in an appeal against a decision to issue removal directions under s10 of the 1999 Act (which is an appealable decision under s82(2)(g) of the 2002 Act) all the grounds of appeal set out in paragraph 84(1) may be deployed, including that relating to the exercise of discretion.
43. We agree with this reading of the statutory provisions; but this is also an important concession. That is why we record it here, even though it has not immediate bearing on the matters we have to decide.
44. So far as the appellate process is concerned, two conclusions follow from it. The first is that, where the decision to give removal directions under s10 does not clearly demonstrate a proper consideration of the matters set out in paragraph 395C and the exercise of a discretion to make the decision, the decision will be one which is challengeable on the ground that it is not in accordance with the law, and the result should normally be that an appellant's appeal is allowed on that basis only, leaving the Secretary of State to make a new and lawful decision in accordance with the Immigration Rules.
45. Secondly, if the decision was procedurally proper and was one which was open to the Secretary of State to make, the appellant can nevertheless succeed in an appeal by showing that the discretion to make the decision, conferred by s10 of the Act and appearing also in paragraphs 395A to D of the Immigration Rules, should have been exercised differently.
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
One–Stop Warning – Statement of Additional Grounds
- You must now inform us of any reason why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave.
- You do not have to repeat any reasons you have already given us but if you do have any more reasons you must now disclose them.
- If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused.
- If, a later date, the reasons why you think you should be allowed to stay in this country change, or new reasons arise, you must tell us as soon as possible.
- If you later apply to stay here for a reason which you could have raised earlier, you may not be able to appeal if the application is refused.
- This on going requirement to state your reasons is made under section 120 of the Nationality, Immigration and Asylum Act 2002.
17. All these considerations appear to me to apply with equal cogency in the present case. If there is nothing to stop variation and removal being considered together – and it is accepted that in the present case there is nothing – then the practical utility of deciding them in immediate sequence and letting the AIT be seized of the issues compendiously on appeal is now recognised by the change in the Home Secretary's statutory powers. The main argument that Mr Kovats has been able to deploy against it is that it will not necessarily condense or curtail appeals because by the time an appeal against a compendious decision on leave and removal has been concluded, new grounds for opposing removal may have arisen, requiring a fresh decision.
18. This seems to me both a counsel of despair and a somewhat eccentric approach to public policy. The state has, or ought to have, an interest in not multiplying administrative proceedings and appeals, especially where the facts and issues overlap and where segregating them creates uncovenanted difficulties for the individual. If, by inviting submissions as to why removal should not follow if the application for variation of leave is refused, a comprehensive decision can be arrived at and if necessary appealed, there can be few cases in which this would not be the right course to take. The possibility of new grounds for non-removal arising is an ever-present one which a two-stage approach cannot eliminate.
19. But to say this is not to say that the Home Secretary could never fairly or rationally take variation and removal in separate stages. I simply do not know. There may be cases in which it is both practical and fair to segregate them. What can be said is that the present appellant's desire not to find herself breaking the law in order to resist removal is an entirely reasonable one in which the Home Secretary, for reasons both of practice and of public policy, ought to concur. Whatever else may determine the choice of course by the Home Secretary, it cannot properly be random or dictated by simple administrative convenience.
20. It was recognised in the course of argument that the decision on this appeal might have an impact on the exercise of the powers introduced by s.47 of the 2006 Act. We accordingly gave Mr Kovats leave to introduce in writing any further submission on this score, and Ms Khan leave to respond to it. In the event, while putting in a helpful note on the legal position of an overstayer, Mr Kovats has not found it necessary to take up the court's offer.
21. While therefore the appellant cannot, in my judgment, establish as a general principle that the Home Secretary must always deal with variation and removal in tandem, it is cogently arguable that there was no good reason for not doing so in her case and that segregating them is unfair to her. The Home Secretary has undertaken to the AIT that there will be an in-country right of appeal if the §395C decision is adverse; but Ms Khan points out that once that right is exhausted the problem of being an overstayer pending the making and contesting of removal directions will revive unless further leave to remain is then granted.
22. Because this issue arose for the first time at a very late stage of the proceedings, the Home Secretary has not so far addressed it on the basis on which it needs to be addressed. She should now have the opportunity to do so. The court will welcome counsel's proposals as to the form of order which will best accomplish this.
4. I have further asked colleagues at ground level for their experiences of this type. The feedback ranges from those who have acted in cases where a decision to refuse has been made but 11 months on no decision to remove has been made despite a clear indication that the unsuccessful applicants are not intending to leave voluntarily. Colleagues advise that in some cases there are no responses to pre action protocol letters demanding a decision is made. Another colleague complains that three cases were refused in mid 2009 and a decision to remove is still awaited. There is a general consensus amongst practitioners that the Respondent's policy of not making either a tandem decision or one within a reasonable and stipulated timescale thereafter does add greatly to the protracted length of these proceedings, does create unnecessary delay and backlog and does add great strain and tension to clients and their children who in the interim have no choice but to wait for the Respondent to make a decision, if she ever does, before they can contest it before an independent Tribunal. Examples of complaints that I have dealt with consistently include inability to register for the provision of medical care including with the local GP, children not being able to enrol at school because of an inability to confirm status and employment related issues where employment suddenly ceases because of an inability to confirm status. From the replies that I have received there seems to be a consensus amongst practitioners of bewilderment as to why the administrative task of making a decision to remove cannot be made simultaneously at point of refusal or even diarised to be followed up on the receipt of an acknowledgment of the decision and confirmation that those unsuccessful clients will not leave voluntarily or in the absence of a reply.
5. The view that the Respondent does not need to make a decision to remove and therefore will not make a decision simply because she is not compelled to do so, is one that I have been unable to find any support from any practitioner at ground level. This manner in dealing with applications simply adds to an unhelpful position where many people whilst technically in the UK unlawfully may well stay purely to exercise the right of appeal when it comes. I have a number of clients who have indicated that whilst they do not agree with the decision at first instance would return voluntarily to their home country if and only if the decision is upheld on appeal by an independent Tribunal. The Respondent's imposed delay simply prolongs any period of criminality that unsuccessful applicants may be exposing themselves to sometimes out of necessity
6. The uncertainty caused by the Respondent acting in this way appears contrary to her own policy when dealing with applications involving children, in particular the need to make timely and expeditious decision in all cases where children are involved to avoid children having to live in a state of limbo. The document entitled Every Child Matters: Change for Children: November 2009 expressly confirms this.
7. As a result of the many cases that this firm had conduct of which were left in a half way world awaiting a decision to remove, this firm has adopted a policy of issuing claims for Judicial Review on the grounds of delay. It is now the practice of the Administrative Court to stay matters presently before them on this point pending the outcome of this appeal. In some instances the Treasury Solicitor has agreed with this firm to make a decision within 3 months, which thereby gives a right of appeal to the Tribunal. Were it not for the action taken by this firm the Respondent would not have escalated or responded to the repeated requests that a decision be made
8. It is my experience that even when it is made clear to the Respondent those unsuccessful applicants will not leave voluntarily without recourse first to the Tribunal this makes little or no difference to the Respondents consistent and what many conceive to be a deliberate policy not to issue a subsequent removal decision.
Lord Justice Rimer:
Lord Justice Sullivan: