QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Amir Mirza
|- and -
|The Secretary of State for the Home Department
Mr Charles Bourne (instructed by The Treasury Solicitors) for the Defendant
Hearing dates: 6th and 7th July 2010
Crown Copyright ©
Lord Justice Moses :
"(1A) Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application."
"(1) A person who is not a British citizen may be removed from the United |Kingdom, in accordance with directions given by an immigration officer, if –
(a) having only a limited leave to enter or remain, eh does not observe a condition attached to the leave or remains beyond the time limited by the leave."
Paragraph 395C provides:-
"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 in to account."
"To remove unnecessary repetition of processes, lack of clarity, inconsistencies and omissions…so that there will be a single right of appeal (Secure Borders, Safe Haven  Cm 5387 at § 4.61(f)."
Provisions relating to appeals in the Act are designed to ensure that all the grounds on which an applicant relies in seeking to be allowed to enter or remain in the United Kingdom should be considered at the same time. The provisions are intended to avoid a multiplicity of applications and appeals and prevent successive applications (AS (Afghanistan) and NV (Sri Lanka) v SSHD  EWCA Civ 1076, Moore-Bick LJ at , Sullivan LJ at ). By s.120 of the 2002 Act, where a person applies to enter or remain in the United Kingdom or an immigration decision within the meaning of s.82 has been taken, the Secretary of State has the power to require the person to state not only any grounds on which he seeks to enter or remain but also any grounds on which he should not be removed from or required to leave the United Kingdom (s.120(2)).
"Successive applications are likely to prolong the period in which a person's status is uncertain and undetermined." 
Her disagreement was confined to the statutory construction most likely to achieve that legislative objective.
"Removal of the appellant from the United Kingdom in consequence of the immigration decision…"
meant that the issue could only be considered by the AIT once removal directions had been given. The AIT had refused to consider the human rights grounds on the basis that removal is not an immediate consequence of refusal of variation of leave; directions must be given separately and cannot be given contemporaneously .
"It seems to me to be wrong in principle that the price of getting before an independent Tribunal, for a judicial decision on a human rights claim, should be the commission of a criminal offence and other associated legal prohibitions." 
"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 in 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."
"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. "
That does not suggest any legal obligation on the part of the Home Secretary.