England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE ALLEN
JR/2884/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2016

Lady Justice Black:

1. This appeal concerns the version of section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") which was in force prior to 6 April 2015 and under which, in certain cases, the trigger for an appeal to the Tribunal against an unfavourable decision by the Secretary of State was the making of a removal direction. We are not concerned with the changes made to Part 5 of the 2002 Act by the Immigration Act 2014, by virtue of which the refusal of a human rights claim gives rise to a right of appeal (section 82(1)(b) of the 2002 Act as amended).
2. The appellant seeks to challenge the refusal of the Secretary of State to make a removal decision in respect of him which would enable him to appeal in respect of her refusal to give him indefinite leave to remain in the United Kingdom. He was refused permission to apply for judicial review by the Upper Tribunal on 7 May 2014 and appeals against that decision.

Short history

3. The appellant is a citizen of Pakistan who was born in January 1936. He is now 80 years old. He came to the United Kingdom in October 2008 with leave to enter for six months as a visitor. During the currency of that leave, he applied for indefinite leave to remain on the basis that he was dependent financially and emotionally on his son, who is a British citizen, and could not be looked after by his relatives in Pakistan. That application was refused on 17 June 2009. He appealed and his appeal was dismissed by the Immigration Judge on 10 August 2009. On 10 September 2009, he was refused permission to appeal to the Upper Tribunal. He did not return to Pakistan of his own volition and no removal decision was made in respect of him.
4. On 11 August 2010, he applied for discretionary leave to remain in the United Kingdom on Article 8 grounds. This was refused on 27 September 2010. This refusal did not attract a right of appeal. On 5 November 2010, a request was made that the Secretary of State reconsider it. Further material was provided to the Secretary of State in support of this request on 6 March 2012. On 25 April 2012, it was refused again. The appellant did not leave and the Secretary of State took no enforcement action against him.
5. On 10 December 2012, the appellant's solicitors wrote again to the Secretary of State. They requested that either discretionary leave to remain should be granted to him or removal directions should be issued so that he would have a right of appeal against the refusal to permit him to remain. There having been no response to this letter, they sent a pre-action protocol letter on 25 April 2013 threatening an action for judicial review. The letter did not expressly ask the Secretary of State to make a removal decision but it did include a request that she should "grant our client discretionary leave to remain in the UK, or grant him an in-country right of appeal". As the route to an in-country right of appeal would be the making of a removal decision, the appeal before us proceeded upon the basis that this could be taken as a request that a removal decision be made.
6. There was no response from the Secretary of State to the 25 April 2013 letter and a judicial review claim form was filed on 11 June 2013, challenging the failure to grant leave to remain and the failure to make a removal decision. Permission to apply for judicial review was refused on paper by Mr Steven Kovats QC sitting as a deputy High Court judge on 23 October 2013. The case was transferred to the Upper Tribunal and, on 7 May 2014, an oral application for permission was heard by Upper Tribunal Judge Allen, and refused. Judge Allen took the view that it was not arguable that the Secretary of State had behaved irrationally or perversely in declining to make a removal decision.

The appellant's argument on appeal

7. The Secretary of State's policy on the making of removal decisions at the relevant time was contained in a guidance document entitled "Requests for removal decisions". The relevant version of this is the one which was valid from 22 August 2012.
8. On page 2 of the guidance, the following appears:

"This guidance only applies where a person:

has made a valid 'out of time' application for leave to remain which has been refused

did not receive a removal decision when the application for leave to remain as refused

failed to leave the UK voluntarily

has requested in a PAP [Pre-Action Protocol letter], or letter before action, that a removal decision is made."

9. The guidance was therefore applicable in the appellant's case once the letter from his solicitors dated 25 April 2013 was received by the Secretary of State, but not before. Important preliminary points which emerge from the guidance document are that:

i) a removal decision is not routinely made at the same time as the refusal of an application from an applicant with no current leave to remain;

ii) a removal decision can be made later on the request of the applicant if it would be right to do so;

iii) in deciding whether to "accept a request", consideration must be given to various factors including (the only one relevant here) "exceptional and compelling circumstances".

10. At page 5 of the guidance, the following appears:

"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."

11. The four sets of circumstances here set out are subsequently referred to in the guidance as "the criteria". It is agreed that only the last ("exceptional and compelling reasons") is relevant in the present case. At page 6 of the guidance, the reader is told that where one or more of the criteria are met, "you must send the applicant the criteria met letter" and a "removal decision must be made and served within 3 months of this response".
12. It will be observed that there is an inconsistency between the language used on page 5 (the case worker "can make a removal decision when requested in the following cases") and that on page 6 which says that a "removal decision must be made". No particular reason for this choice of language could be suggested on behalf of the Secretary of State in argument and it was accepted that the guidance required a removal decision to be made when one of the criteria was met.
13. The appellant accepts that this policy was lawful, as this court held in R (on the application of Oboh) v SSHD [2015] EWCA Civ 514. He argues that in his case the criteria for making a removal decision were satisfied, because there were exceptional and compelling reasons, and the Secretary of State was obliged to make such a decision and, furthermore, that it was irrational not to do so given that several years had elapsed since the appellant ceased to be entitled to be in the United Kingdom, during which it had become clear that he had no intention of departing voluntarily. He complains also that the Secretary of State has failed to give adequate reasons for declining to treat his case as exceptional.
14. Mr Richardson, counsel for the appellant, relies upon two categories of material as providing exceptional and compelling reasons. First, there is the appellant's age (he was 77 in April 2013) and personal circumstances. In addition to general frailty associated with his age, he is said to have a number of particular health problems. His case is that his only surviving family members are settled in the United Kingdom but the findings of the Immigration Judge in 2009 present an obstacle to reliance being placed upon that assertion. The Immigration Judge did not accept the appellant's case that he had no one to look after him in Pakistan, as he had a son there with whom he had been living previously and three daughters who also lived in Pakistan; it has not been shown that this situation has changed materially. Nevertheless, Mr Richardson argues that at his age and with his state of health, the appellant urgently needs some certainty and finality as to his immigration status. Secondly, Mr Richardson relies upon the appellant's immigration history which, he says, makes it plain that he is not going to depart from the United Kingdom voluntarily. He argues that this sets the case apart from the normal situation in which the Secretary of State is entitled to wait to see if the person concerned will leave without a removal direction being made and makes it an exceptional and compelling case in which a removal decision had to be made on the appellant's request. Indeed, I think he might even be going so far as to suggest that, quite apart from the guidance, once it has become clear that voluntary departure is out of the question, there is simply no longer a rational basis for not making a removal decision.
15. In support of his submissions, Mr Richardson invites our attention to what this court had to say in R (Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161 and to the decision of the Supreme Court in Patel and others v Secretary of State for the Home Department [2013] UKSC 72 [2014] AC 651.
16. Turning first to Daley-Murdock, Mr Richardson would have us go straight to paragraph 9 of the judgment of Sullivan LJ. However, I think that what was said there needs to be taken in context. As in the present case, so in Daley-Murdock, the appellant, as an overstayer, had no right of appeal under the 2002 Act against the decision of the Secretary of State in 2009 refusing her leave to remain. She argued, unsuccessfully, in judicial review proceedings that it was unlawful for the Secretary of State not to have made a removal decision at the same time as refusing leave to remain thus conferring a right of appeal. On appeal to the Court of Appeal in the judicial review proceedings, it was argued, inter alia, that failure to make a removal decision at the same time as a refusing leave to remain was contrary to the policy and objects of the 2002 Act. Dismissing the appeal, the Court of Appeal took the view that the position was, in fact, the reverse. Sullivan LJ said at paragraph 7 that:

"it would be contrary to the policy and objects of the 2002 Act to impose an obligation on the Secretary of State when refusing an overstayer's application for leave to remain to make at the same time an appealable refusal decision so as to confer a right of appeal. It would be contrary to the policy and objects of the Act because the list of appealable immigration decisions in s 82(2) makes it clear that Parliament did not intend that overstayers, unlike those who are lawfully in the UK with leave, should have a right of appeal against a refusal of leave to remain."

17. He continued:

"8. It is one thing to say that if there is a right of appeal under the 2002 Act, the policy of the Act is that all outstanding issues should be dealt with at that appeal; it is quite another to say that where there is no right of appeal a decision must be made so as to confer such a right. The statutory scheme distinguishes between those who are in the UK lawfully and those who are overstayers in other respects. An overstayer who is given a removal decision may not appeal against that decision while he is in the UK, unless he has made an asylum claim or a human rights claim while in the UK, unlike a person who is in the UK with leave, who may appeal while in the UK against a refusal to vary his leave if the result of that refusal is that he has no leave to remain: s 92(1), (2) and (4) .

9. Mr Sainsbury's evidence that a substantial amount of people do leave voluntarily following refusal of their applications for leave to remain does not distinguish between those persons in the UK with leave who apply to vary their leave, and overstayers who apply for leave to remain. In the latter type of case it is not irrational for the Secretary of State to proceed on the basis that a significant proportion of those who have been unlawfully living in the UK and have no right to remain here will leave voluntarily following the refusal of their applications, thus making a removal decision unnecessary. There are, therefore, sound reasons, on grounds of both principle and practice to distinguish between those lawfully in the UK and those who are overstayers, and not to impose an obligation on the Secretary of State to make a removal decision whenever she refuses an overstayer's application for leave."

18. Relying on paragraph 9, Mr Richardson argues that the reason that the practice of not making a removal decision when refusing to grant leave to remain to an overstayer is not irrational is that the Secretary of State is entitled to wait to see whether the person concerned leaves voluntarily. Therefore, on his argument, if it is apparent that a person will not be leaving voluntarily, as he says was the case here, there is no justification for not making a removal decision at the same time as refusing leave and it is irrational not to do so.
19. Mr Richardson seeks to draw support for this argument from Patel and others (supra). He places particular reliance upon four words in paragraph 29 of the judgment of Lord Carnwath JSC, with whom the other members of the court agreed. I quote paragraph 29 in full with Mr Richardson's highlighted words emphasised:

"29 However, neither such general observations nor such incidental effects can be translated into an overriding policy requiring the Secretary of State to act in a particular way, nor into a right for the appellant to insist that he does so. It is to be borne in mind also that exercise of the powers to direct removal, which alone are at issue in the Patel case, is likely to involve both public cost and personal hardship or indignity. The Secretary of State does not "thwart the policy of the Act" if she proceeds in the first instance on the basis that unlawful overstayers should be allowed to leave of their own volition (as on the evidence the great majority do). The Upper Tribunal [2011] UKUT 00484 (IAC) observed, at para 32, in the present case, commenting on its concerns at the implications of the decision in the Sapkota case:

"For every person whose real claim is one outside the Rules, there are many who merely want a decision in accordance with the Rules and would either voluntarily depart or make a fresh application if that appeal were to be unsuccessful. Further, the developing jurisprudence of the Upper Tribunal has moved beyond the proposition that human rights only arise on removal decisions, to cases where variation of leave applications may need to take into account a wide variety of aspects of private life under article 8 rights, thereby enabling an independent assessment of this claim to remain without the person concerned running the risk of breaking the law."

20. Mr Richardson argues that all that the Supreme Court was called upon to decide in Patel was whether there was a duty on the Secretary of State to make a removal decision at the same time as refusing an application for leave to be here and that their decision was confined to that, as can be seen from the reference to "in the first instance". Indeed, he would rely upon Lord Carnwath's inclusion of the words "in the first instance" as suggesting that the Supreme Court was of the view that, after the initial stage during which the Secretary of State is entitled to wait to see whether the person will depart voluntarily, which stage I think he would concede would extend up to about six months from the refusal of leave, the Secretary of State is obliged to make a removal decision. At the conclusion of his oral submissions, he went so far as to argue that it would be contrary to the policy of the 2002 Act not to do so once that stage has been reached, because the inclusion of a removal decision as an appealable decision, by virtue of section 82(2)(g), indicates that the legislature intended an overstayer in the position of the appellant to have a right of appeal.
21. I can deal with the last point shortly and I propose to do so before looking at rather more of what was said in Patel. As a matter of logic, I cannot see how the fact that a removal decision was included in section 82(2)(g) indicates that the policy of the Act was to give people such as the appellant a right of appeal. The intention of the legislature seems to me to have been that someone who has been made the subject of a removal decision should have an appeal. This is not the same thing as intending that once an overstayer has made it clear that he or she will not leave voluntarily, he or she is entitled to a removal decision. Furthermore, this point of Mr Richardson's is not, in my view, compatible with Daley-Murdock and Patel properly understood.
22. Returning to Patel, the context of the words upon which Mr Richardson has alighted is important. The argument there was that the failure of the Secretary of State to issue a removal direction (in that case under section 47(1) of the Immigration, Asylum and Nationality Act 2006, rather than as here under section 10 of the Immigration and Asylum Act 1999) was not only unlawful in itself but also undermined the validity of the previous decision to refuse leave to remain. At paragraph 27, Lord Carnwath said:

"The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that—powers. Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control. Any extra protection provided to an appellant is incidental. Neither section can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision."

23. This makes it plain that there is no duty on the Secretary of State to make a removal direction in any particular case. She has a power to do so and, as appeared to be common ground in the argument before us, a discretion as to when to do so. Clearly, the discretion has to be exercised in such a way as not to be open to a public law challenge and adherence to policy/guidance is one of the features that will be relevant in this regard. I do not read into Lord Carnwath's judgment that he considered that it was only rational to decline to make a removal decision for a limited period following the refusal of leave or until the person concerned has demonstrated that he or she is not going to leave of his or her own accord. It is particularly important to note, in this regard, what he said about the purpose of the powers to issue removal directions, namely to be part of the armoury available to the Secretary of State for the enforcement of immigration control, and his observation that any extra protection provided to the appellant is incidental.
24. Equally, I am not persuaded that it can be inferred from the passage in paragraph 9 of Daley-Murdock on which Mr Richardson relies that once it becomes apparent that voluntary removal is out of the question, that removes any possible justification for the Secretary of State not making a removal decision and renders a refusal to do so irrational.
25. Ms Barnes for the Secretary of State responds to Mr Richardson's argument about this with a broad point of principle and a practical point. By way of her broad point, she submits, and I agree, that Patel and Daley-Murdock bring out the difference in principle and policy between overstayers and those who have not overstayed. This forms the backdrop for a consideration of the rationality of the Secretary of State's handling of requests for removal decisions.
26. Ms Barnes's practical point is that there are other potential justifications for a refusal to make a removal decision at a particular time. She submits that the Secretary of State is entitled to take into account operational considerations in the exercise of her discretion. There are very large numbers of people in this country without leave to remain. The appellant in Daley-Murdock was an example, having overstayed for many years after her leave to be here as a visitor ran out. The Secretary of State has to attempt to deal with these people in an orderly fashion. To move an individual up the queue by obliging the Secretary of State to serve a removal decision on request, simply on the basis that the particular overstayer has made clear that he or she is not going to depart otherwise, would not assist her in her endeavours. It is recognised that there will be cases in which a removal decision should be made on request but, Ms Barnes submits, that is what the guidance is for, setting out the categories in which action is appropriate. I also accept this practical submission of Ms Barnes's.
27. I need therefore to look at the guidance itself in a little more detail. As I see it, the Secretary of State was entitled to take the view that there were no exceptional and compelling reasons to make a removal decision here and she gave sufficient, if not full, reasons why she reached that view.
28. Dealing with the appellant's complaint about the sufficiency of the Secretary of State's reasons first, it is true that there was no reply in correspondence to the appellant's solicitors' letter of 25 April 2013. However, in the judicial review proceedings which were commenced thereafter, Summary Grounds of Defence were filed which did address the point, denying that the appellant had put forward any circumstances which were seen as exceptional or compelling reasons. The concluding paragraph of the section of the Summary Grounds which is headed "No removal decision" is paragraph 21. This paragraph sets out the Secretary of State's case that the appellant had "not put forward or demonstrated circumstances which the [Secretary of State] considers exceptional or compelling reasons" and then continues, "As detailed above, the [Secretary of State] has given careful consideration to the [appellant's] age, family life, private life and health and maintains that her decision not to issue a removal decision in this case is reasonable and lawful." What had been "detailed above" about these issues, in the section dealing with the decision of 25 April 2012, brought in by reference the Secretary of State's decision letters and findings made in the 2009 immigration appeal process. Accordingly, whilst the question was not addressed in any detail, I think it is sufficiently clear what the Secretary of State's position was in relation to the appellant's personal circumstances, which she had taken into account but did not consider constituted exceptional and/or compelling reasons.
29. Moving to the question of whether the Secretary of State was obliged, on the facts of this case, to conclude that there were exceptional/compelling reasons, I would accept Ms Barnes' submission that unwillingness to depart voluntarily is not, of itself, in any way exceptional. As she points out, the guidance only applied at all where a person had "failed to leave the UK voluntarily". She also points out that there are sound policy reasons why mere determined unwillingness to go should not amount to an exceptional/compelling reason. If it did, it would discourage people from departing voluntarily as they would know that by digging their heels in, they would be able to force the Secretary of State to take enforcement action and thereby acquire a right of appeal.
30. Whilst having sympathy with such problems as the appellant may have in terms of the combined effect of his age and health, I do not accept that the Secretary of State had to treat these and his family circumstances as exceptional and compelling reasons to make a removal decision. In my view, there was nothing irrational about her conclusion that they were not sufficiently out of the ordinary/compelling to come within the guidance. It is argued that a weighty feature here is the urgent need for certainty in relation to the appellant's immigration status and his future in this country. I am not persuaded that that should have tipped the balance with the Secretary of State here. The appellant's case was fully considered in 2009, including through the medium of an appeal to the (as it then was) Asylum and Immigration Tribunal. He has been in the United Kingdom since then without leave and he could have achieved certainty by returning voluntarily to Pakistan at any time during this period.
31. It follows from all of the above that I see no reason to interfere with the decision of Upper Tribunal Judge Allen to refuse permission to apply for judicial review and I would dismiss the appeal. I would like to record my gratitude for the helpful and realistic submissions made by both sides during the appeal and in writing immediately after it concluded.

Lady Justice King:

32. I agree.