ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Burnett
AND ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE McCOMBE
| The Queen on the applications of
Ebose Ester Oboh
Emad Ali Khalifa
Daniel Kwame Nyarko
- and –
|Secretary of State for the Home Department
(Transcript of the Handed Down Judgment of
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David Blundell (instructed by The Government Legal Department) for the Respondent
Hearing date : 7 May 2015
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"About this guidance
This guidance tells you what to do if you receive a 'letter before claim' or a Pre-Action Protocol (PAP) dated on or after 13 February 2012 from an applicant who has made an application for leave to remain which has been refused with no right of appeal.
This guidance only applies where a person:
- has made a valid 'out of time' application for leave to remain which is refused
- did not receive a removal decision when the application for leave to remain was refused
- failed to leave the UK voluntarily
- has requested in a PAP, or letter before action, that a removal decision is made.
Accepting a request for a removal decision
This page tells you when to grant a request for a removal decision.
The UK Border Agency does not routinely make a removal decision at the same time as refusing leave to remain from an applicant with no current leave. The exceptions are categories of cases where, after a refusal of an out of time application for leave to remain, it would be right, if the applicant later requests it, to agree to make a removal decision.
In making this decision to accept a request, you must consider:
- the need to promote the welfare of children who are in the UK
- any direct cost in supporting the applicant and dependants being met by the UK Border Agency or a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), and
- exceptional and compelling circumstances.
You can make a removal decision when requested in the following cases:
- the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more
- the applicant has a dependant child under the age of 18 who is a British citizen
- the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or
- there are other exceptional and compelling reasons to make a removal decision at this time.
A decision to serve a removal decision on the basis of exceptional and compelling reasons must be agreed by a higher executive officer (HEO) senior case worker (SCW) or above.
Responding to the Pre-action protocol (PAP)
This page tells you how to respond to a PAP or letter before action where a request for a removal decision has been made.
You must first review the refused application for leave to remain and any other information submitted and consider if the decision should be maintained.
If the original refusal decision was incorrect or made on incorrect grounds, a new decision must be made and either leave granted or a new refusal decision served on the applicant.
If you decide that the refusal decision should be maintained, you must consider the information in the refused application for leave to remain and any relevant UK Border Agency databases. You must then decide if the applicant meets the criteria for a removal decision to be made.
If one or more of the criteria outlined above are met, you must send the applicant the criteria met letter ….
A removal decision must be made and served within 3 months of the date of this response …..
Criteria Not Met
Where the criteria outlined above are not met, you must send the applicant the criteria not met letter …."
"The Home Office is not required to routinely make a removal decision at the same time as refusing leave to remain from an applicant with no current leave.
If a removal decision is not made and served alongside a decision to refuse of [sic] an out of time application for leave to remain, a removal decision will be made if the applicant later requests it and it is appropriate to do so."
The submissions of counsel concentrated on the earlier version and I do not think that the modifications in the later version have any material effect on the analysis.
The first issue: was there a requirement to lay the guidance before Parliament?
"1. General principles
(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act ….
(4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting … persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
"3. General provisions for regulation and control
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period.
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality) ….
(5) A person who is not a British citizen is liable to deportation from the United Kingdom if …."
"4. Administration of control
(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State ….
(2) The provisions of Schedule 2 to this Act shall have effect with respect to –
(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully …."
"15. At first blush, there is nothing in the statutory language of section 1(4) and 3(2) of the 1971 Act which suggests that the obligation to lay rules of practice before Parliament is concerned with the mechanics of, still less the timing of, removal. 'Stay' in that context is concerned with a lawful stay in the United Kingdom pursuant to rules of practice applied by the Secretary of State (whatever label may be attached to them). That interpretation is consistent with the language of the 1971 Act itself. Section 1(2) refers to 'departure from the United Kingdom', in addition to 'entry into and stay in' the United Kingdom. Sections 1(4) and 3(2) do not refer to departure from the United Kingdom (or removal from the United Kingdom). So whilst the 1971 Act is concerned with the mechanics of departure and removal in a variety of circumstances, in particular under paragraphs 8 to 10 of Schedule 2, Parliamentary scrutiny of the policies, instructions or guidance on which the Secretary of State exercises her discretion to remove is not a requirement of section 3(2)."
"94. In my view, the solution which best meets these objects is that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision 'as to the period for which leave is to be given and the conditions to be attached in different circumstances' (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined.
97. If the boundary is drawn where I have suggested, that should introduce a degree of certainty which ought to reduce the scope for legal challenges. The key requirement is that the immigration rules should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain."
Lord Hope, whilst dealing with the issue at some length in his own judgment, expressly agreed (at para 57) with para 94. Lord Walker (para 109) agreed with Lord Hope and Lord Dyson on the central issue on which they concurred. Lord Clarke (paras 120-121) saw no difference between the formulations in paras 94 and 97 and he agreed with the approach laid down in them. Lord Wilson (para 128) also agreed.
"45. The question remains whether DP5/96 was a statement of practice within the meaning of section 3(2). If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is in itself a rule 'as to the practice to be followed' within the meaning of section 3(2) which should be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then in my view it does not fall within the scope of section 3(2). Such a statement does no more than say when a rule or statutory provision may be relaxed. I have referred to DP5/96 at para 9 above. It was not a statement of practice within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not have to be laid before Parliament.
46. … [S]ubject to the constraints to which I have referred and any relevant public law principles, the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the United Kingdom. The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement 'as to the practice to be followed' within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament."
The second issue: uncertainty and lack of transparency?
"34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised."
"65. Transparency, clarity, and the avoidance of results that are contrary to common sense or are arbitrary are aspects of the principle of legality to be applied by the courts in judicial review …."
Blake J went on to say at para 69 that the policy under challenge in that case either irrationally excluded material and potentially decisive considerations or "was so ambiguous as to the expression of its scope as to mislead applicants, entry clearance officers and immigration judges alike as to what was a sufficient reason to substantiate a discretionary claim to settlement here".
"It is the policy of the Agency [the UK Border Agency, as it was] to remove illegal migrants from the United Kingdom unless it would be a breach of the Refugee Convention or ECHR, or there are exceptional circumstances for not doing so in an individual case."
The chapter then sets out how decision-makers should assess whether there are exceptional circumstances and provides in paragraph 53.1.2 that if, on consideration of the relevant factors, removal is no longer considered appropriate, discretionary leave to remain should be granted. Mr Malik submits that the guidance is irreconcileable with the Enforcement Instructions and Guidance, in that the former provides that the Secretary of State will make a removal decision if there are exceptional reasons, whereas the latter provides that the Secretary of State will not make a removal decision, but will instead grant leave to remain, if there are exceptional circumstances.
"23. There is no confusion at all. The guidance with which this case is concerned is directed towards the timing of a decision to remove. The Enforcement Instructions and Guidance is directed towards the substance of a decision relating to removal."
I agree with the judge. The inconsistency contended for by Mr Malik does not exist.
Lord Justice Lewison :
Lord Justice McCombe :