England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		16 June 2010

1. MR JUSTICE COLLINS: This is a renewed application seeking permission for judicial review of the failure to provide an in-country right of appeal to the claimant.
2. The circumstances briefly which give rise to this claim are as follows. The claimant, who is from Thailand, came to this country as a visitor in 1998. She overstayed. In 2008 she decided, apparently, to try to regularise her position and sought leave to remain here. She was not able to rely on any provision of the Rules or any policy of the Secretary of State because she would have had to have been here for 10 years lawfully or 14 years unlawfully before a removal decision was made, and neither applied to her. So she was dependent upon seeking discretion of the Secretary of State outside the Rules.
3. In support of her claim, she raised Article 8, asserting that the time she had been here made it a disproportionate breach of her Article 8 rights if she was not permitted to remain.
4. The Secretary of State rejected her application. In so doing, the Secretary of State gave reasons why, in his view, the Article 8 claim was not appropriate. It is in those circumstances that she seeks a right of appeal. The refusal included the standard letter, telling her that if she remained she was in breach of the law and was liable to prosecution. The letter stated:

"You have no right to stay in the United Kingdom so are liable to be removed. You must leave as soon as possible. If you do not leave voluntarily you may be prosecuted for an offence under the Immigration Act 1971, the penalty for which is a fine of up to £2,500 and/or up to six months' imprisonment. And you will also be liable to be removed from the United Kingdom to Thailand."

But no removal directions were actually made.

5. So far as rights of appeal are concerned, they are dealt with in Sections 82 and 92 of the Nationality and Immigration Act 2002. Section 82 deals with general rights of appeal and defines an immigration decision against which such an appeal can be brought. That definition is in Section 82 (2). Suffice it to say, a decision in relation to one who is not lawfully here, that he or she is not given leave to remain here, is not an immigration decision within the meaning of Section 82 (2).
6. One goes to Section 92 which deals with appeals from within the United Kingdom. Section 92 clearly applies only to immigration decisions, but, so far as rights of appeal are concerned, to immigration decisions of a particular kind which cannot conceivably be said to include the decision that was made in this case. This is not an immigration decision. Section 92 (4) (a) provides:

"This section also applies to an appeal against an immigration decision if the appellant -

(a) has made an asylum claim or a human rights claim while in the United Kingdom."

She has made a human rights claim while in the United Kingdom but there is no immigration decision.

7. Therefore there can be no question that so far as the statutory provisions are concerned there is no in-country right of appeal. An appeal could only arise if there were a removal decision. The suggestion is that in circumstances such as these the Secretary of State ought, in fairness, to make the necessary removal decision in order to provide for a right of appeal.
8. Some reliance is placed by Miss Appiah on the decision of the Court of Appeal in TE (Eritrea) v Secretary of State [2009] EWCA Civ 174. That was a somewhat special case on its facts. The claimant had been here lawfully and had made an application for leave to remain within time so that she had a right of appeal under Section 92, read with Section 82, that is to say an in-country right of appeal. She exercised that right of appeal. Unfortunately by an oversight, both by those representing the claimant at her appeal and the Home Office Presenting Officer, and the tribunal itself, consideration was not given to a relevant rule, namely Rule 395 (c). The question before the Court of Appeal was whether a right of appeal should be given to deal with that matter.
9. Essentially this was a case where the failure by the Senior Immigration Judge and, I think, possibly this court as well to order a reconsideration was manifestly wrong because someone should have spotted the failure to deal with Rule 359 C. In those circumstances it was the Court of Appeal's view that in fairness to that particular claimant the right of appeal should be given.
10. It is to be noted that Lord Justice Sedley who gave the leading judgment said (at paragraph 9):

"9 Granting permission to appeal, Hooper LJ wrote:

'It seems strange that the respondent is content for persons in the appellant's position to be able to have 'another bite at the cherry' rather than sorting out all the issues at this stage. That said, there may be very good reasons why the respondent adopts this position.

10 The skeleton argument of Steven Kovats for the Home Secretary does not respond to this implied invitation. Indeed it points out that, since 1 April 2008, Section 47 of the Immigration, Asylum and Nationality Act 2006 has allowed the Home Secretary to combine her decision about removal with her refusal to vary an applicant's leave to enter or remain, although we are told that the necessary administrative arrangements have not been put in place to make use of this power ..... "

(Quite what administrative arrangements are needed, I am not sure).

11. In paragraph 21 Lord Justice Sedley summarises the matter in this way:

"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 395 C 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."

12. That was the position in that case. I emphasise the point that in that case the initial application was by one who was lawfully here and was made at a time when she remained lawfully here. This case is one of many similar cases, some of which are sought to be brought before this court, where an overstayer or one who has entered unlawfully makes an application to try to regularise his or her position and that application is refused but the Secretary of State does not at the same time make a decision to remove. In those circumstances there clearly is no statutory in-country right of appeal.
13. Mr Blundell points out that in the case of someone unlawfully here, they are by their own volition, as it were, committing a criminal offence. They are remaining here in breach of the immigration law. It is the Secretary of State's general policy that in such cases the onus should initially be upon them to comply with the law and to remove themselves from this country. That is why, it seems, as a general policy, the Secretary of State deals with the matter in this way rather than dealing with an Article 8 claim or any other human rights claim at the same time. One can understand that policy. Of course, it may be in some cases that the threat of possible criminal proceedings may result in a decision to leave rather than face the possibility of imprisonment or substantial fine and prosecution.
14. But it does seem to me, I am bound to say, that where it is known that an Article 8 claim, or indeed any other human rights claim, has been made, it may be counter productive to adopt the approach that has been adopted in cases such as this because the longer someone is here and the greater the delay the better chance there is that any Article 8 rights will carry more weight. Of course, there will be yet further delays. However the fact that there has been an intimation of an Article 8 claim cannot of itself mean that the Secretary of State is bound to join the removal and the refusal in one decision. It is open to the Secretary of State, as a matter of law, to approach it in the way that she has in the circumstances of this case and indeed all cases where there is no more than an application by someone who is here unlawfully to seek to regularise his or her position.
15. There have been a number of cases in which attempts have been made to seek judicial review in situations such as this. The message must go out that those claims are not going to succeed and are not arguable unless there are special circumstances: an example is TE (Eritrea).
16. I had an example to which I referred in argument of a case where a husband and wife were seeking to regularise their individual positions. The husband had worked here openly, albeit he had been here unlawfully. He had paid his taxes and was running a successful business. In his case his application was refused - that is his application to remain here and to regularise his position - without a right of appeal. No removal directions were set. His wife had an independent Article 8 claim in respect of which there was a right of appeal. In those circumstances it clearly would be absurd, on the face of it, not to combine the two because clearly the issues for husband and wife overlapped to a very considerable extent. That is an example of a case where it might well be argued that it was irrational for the Secretary of State not to deal with both in tandem. That is simply an example of the sort of exceptional circumstances that in my view will create a possible right of appeal.
17. TE (Eritrea) is a case in which there were exceptional circumstances because of the error of the original hearing and the fact that the claimant in that case was not an overstayer, had not acted in any way unlawfully and was thus effectively made unlawful and told that she was now to be prosecuted as a result of erroneous action by both the Secretary of State and the tribunal. In those circumstances I would have thought it was manifestly unfair for the Secretary of State not to have given an in-country right of appeal so that the whole matter could be sorted out.
18. I think it is important that it is known that the court will adopt this approach to any claims such as this, however much one sympathises, as I do, with the position of the claimant in the circumstances of this particular case.
19. In those circumstances I must refuse permission. I also direct that this judgment albeit a judgment on a refusal can be published because I think it raises an important point that perhaps needs to be more widely known.
20. MR BLUNDELL: I am extremely grateful for that very clear judgment and particularly for the direction your Lordship has given at the end. There is one consequential matter and that is an application for costs of the acknowledgement of service. It is the usual application.
21. MR JUSTICE COLLINS: How much is it - £480?
22. MR BLUNDELL: £480.
23. MISS APPIAH: I do not think I can oppose that application.
24. MR JUSTICE COLLINS: Are you legally aided?
25. MISS APPIAH: No. We are not. It is being paid privately by the claimant.
26. MR JUSTICE COLLINS: I do not think I can do other in the circumstances.
27. MISS APPIAH: No.
28. MR JUSTICE COLLINS: Yes, £480.