ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(The Hon Mr Justice Blake and Upper Tribunal Judge Perkins)
Appeal Nos. IA/15097, 15089 and 15990/2011
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT (THE VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION)
LORD JUSTICE STANLEY BURNTON
| SANDEEPKUMAR MANHARBHAI PATEL
HIRALBEN HITENBHAI PATEL
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Thomas Roe (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 3 April 2012
Crown Copyright ©
The Master of the Rolls:
The facts and issues
The statutory background: general
Section 120 of the 2002 Act: 'one stop' appeals
'The Secretary of State or an immigration officer may by notice in writing require the person to state in writing:
'(a) his reasons for wishing to enter or to remain in [the UK],
(b) any grounds on which he should be permitted to enter or to remain in [the UK], and
(c) any grounds on which he should not be removed from or required to leave [the UK].'
'the Secretary of State or an immigration officer certifies:
(a) that the person received notice under section 120 [in respect of an earlier immigration decision],
(b) that the new decision relates to an application which relies on a matter that should have been, but has not been raised in response to that notice, and
(c) that there is no satisfactory reason for that matter not having been raised in [such] response.'
The respective cases in summary
'[A]n argument that an "immigration decision" not to extend leave to remain is flawed because the [Secretary of State] failed at the same time or promptly thereafter to consider the question of whether to make a removal direction .. does fall within the ambit of section 84(1)(e) of the 2002 Act. In short, an unjustified deferral of a removal direction would mean that the "immigration decision" actually taken is not "in accordance with the law"'.
'the burden is on the [Secretary of State] to initiate the process of dealing with the two decisions together by an invitation to the applicant [for an extension to his or her leave to remain], at the time of a "one stop notice" is issued with the variation decision, to make submissions as to why removal should not follow the refusal to vary leave.'
'[For the appellant applicants]
(i) Notwithstanding the apparently permissive wording of section 120, the Secretary of State is under a duty to serve a section 120 notice on a claimant when making an immigration decision or within a reasonable time thereafter.
(ii) Failure by the Secretary of State to serve a section 120 notice renders her immigration decision unlawful, and therefore "not in accordance with the law" within the meaning of sections 84 and 86.
[For the respondent Secretary of State]:
(i) Section 120 confers a power and a discretion on the Secretary of State, but not a duty.
(ii) It follows that a failure to serve a section 120 notice cannot affect the lawfulness of an immigration decision.'
'I fully accept [the] submission that Mirza and Sapkota are authority for the proposition that an enactment conferring what may appear to be a statutory power may impose a public law duty. However, neither is binding authority for the proposition that the Secretary of State is under a duty to serve a section 120 notice. AS (Afghanistan) is in my judgment binding authority to the contrary. Furthermore, if AS (Afghanistan) is also obiter on this point, I prefer to follow the dicta in that case as against what was said in Mirza and accepted in Sapkota.
It follows that I would reject the submission that the Secretary of State is under a duty to serve a section 120 notice, or indeed that she is under such a duty unless there is a good reason not to do so. The section confers a discretionary power, as held in AS (Afghanistan).
'It must be borne in mind that the service of a notice under section 120 is in the discretion of the Secretary of State. He is not obliged to take that step. [S]ervice of a notice under section 120 is entirely in the option of the Secretary of State. He can choose not to serve a notice.'
Sullivan LJ said this at para 102:
'If an appellant is served with a section 120 notice he is given no choice in the matter: he must state any reasons he may have . The Secretary of State is not required to elicit those reasons if he does not wish to do so. Section 120 provides that he " .may by notice in writing require " a statement of additional grounds.'
Stare decisis and practicalities
Lord Justice Stanley Burnton:
"A removal decision under s. 47 of the Immigration, Asylum and Nationality Act 2006 cannot be made in respect of a person until written notice of the decision to refuse to vary that person's leave to remain has been given to that person. The current practice of the Secretary of State to incorporate both decisions in a single notice is accordingly incompatible with the relevant legislation."
" section 47, far from mandating the practice described in the [Secretary of State's] Guidance, that a decision under that section "should be included in the decision letter curtailing or refusing to vary leave", in fact prevents such a practice. The section 47 decision can be taken only after the leave to enter or remain is extended by section 3C(2)(b) [of the Immigration Act 1971]; and that can happen only while an appeal against the decision regarding leave "could be brought". Such an appeal may be brought only once the person has been given written notice of the decision."
Lady Justice Hallett: