England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2010

Lord Justice Moses :

1. The Secretary of State refused the applications of all these four claimants to vary their leave to remain in the United Kingdom. Two of them sought further leave to remain as students (Samir Abbasi and Amir Mirza). Two sought leave to remain as a Tier 1 (General) Migrant (Pooja Barot) and as a Tier 1 (Post-study Work) Migrant (Divyeshkumar Patel). The applications of Ms Barot, Mr Abbasi and Mr Patel were refused pursuant to paragraph 322(1A) of the Immigration Rules (HC395) whereas the application of Mr Mirza was refused under paragraph 60(v). Their appeals, on reconsideration, were refused.
2. All four claimants now seek permission, by way of judicial review, to challenge the failure of the Secretary of State to make decisions as to their removal and thereby afford them the opportunity of invoking factors identified in paragraph 395C of the Immigration Rules so as to persuade the Secretary of State to refrain from removing them.
3. The claimants contend that the Secretary of State has adopted a policy or practice not to issue removal directions at the same time or immediately after refusal to vary leave and that that policy or practice is unlawful. They contend that, as a matter of law, the Secretary of State is required to make a decision as to removal at the same time as refusal to vary leave and thereby permit the claimants to appeal to the first-tier Tribunal (Asylum and Immigration Chamber) (formerly the AIT)), whilst they lawfully remain in the United Kingdom. None of these claimants asked the Secretary of State to make removal directions either at the time he considered their applications to vary their leave to remain or at the time of reconsideration by a Senior Immigration Judge. None sought to rely on any relevant factor which would fall to be considered by the Secretary of State under paragraph 395C. In those circumstances these claimants, as Mr Malik on their behalf accepts, are compelled to rely upon the proposition that it is unlawful for the Secretary of State to reach a decision as to variation without, at the same time, considering whether to issue removal directions; he should not, as Mr Malik put it, "segregate" those two decisions. It is important to appreciate that the claimants' case depends upon establishing not merely a power but a duty to make a decision as to whether to remove at the same time as the decision to refuse to vary.
4. Resolution of the issue depends upon consideration of the relevant statutory scheme and its elucidation by the Court of Appeal in TE (Eritrea) [2009] EWCA Civ 174 [2009] INLR 558.
5. The Secretary of State has contended that all four of these applications for permission are out of time. It is, therefore, necessary to provide some details of the procedural history. In chronological order, Mr Amir Mirza's application for further leave to remain as a student was refused by the Secretary of State on 11 July 2008, Ms Pooja Barot's application for further leave to remain as a Tier 1 (General) Migrant on 3 November 2008, Mr Divyeshkumar Patel's application for leave to remain as a Tier 1 (Post-study Work) Migrant on 19 January 2009 and Mr Samir Abbasi's application for further leave to remain as a student was refused on 21 January 2009. The applications of Ms Barot, Mr Abbasi and Mr Patel were refused on the same basis, pursuant to paragraph 322(1A) of the Immigration Rules. That rule requires leave to remain to be refused:-

"(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."

6. I should make it clear that the Secretary of State did not suggest that any of the false representations on which he relied involved dishonesty or deception whether on the part of the applicant or anyone else. It was not suggested that the answers the claimants gave were other than honest. All four claimants appealed and, on dismissal of their appeals, senior immigration judges ordered reconsideration of all their applications. On reconsideration, the senior immigration judges held that refusal was mandatory even if, as the claimants contended, the various misrepresentations were entirely innocent.
7. The decision of the Court of Appeal in Adedoyin v SSHD [2010] EWCA Civ 773 adds piquancy to these applications. On the very day of the hearing of these applications the Court of Appeal handed down its decision that in order to render a "false representation" a ground for mandatory refusal it is necessary to show dishonesty or deception, although not necessarily on the part of the applicants themselves [76]. None of these applicants ever successfully advanced, as a ground of appeal against refusal of variation, the submission which was successful in Adedoyin, that it was necessary to prove such dishonesty or deception.
8. Following dismissal of these claimants' appeals on reconsideration, all four sought and were granted permission to appeal on the ground that as a matter of law the Secretary of State was required to issue removal directions at the same time as he refused to vary the applicants' leave.
9. On 3 February 2010 the Court of Appeal concluded that it did not have jurisdiction to entertain these claimants' appeals. The court recognised that the decision of the Secretary of State refusing to vary leave was "legally secure" [8]. The statutory jurisdiction of the Court of Appeal conferred by s.103B(1) did not allow an appeal outside the legal merits of the original immigration decision [9]. The court proposed to dismiss the appeals but in order to enable the claimants to test the point they now wish to pursue, it adjourned so as to afford the opportunity to the applicants, within a limited period, to apply for leave to move for judicial review.
10. Part 5 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) concerns immigration and asylum appeals. S.82(1) confers a right of appeal to the Tribunal in respect of an immigration decision. S.82(2) defines immigration decisions in respect of which a right to appeal is conferred by s.82(1). A refusal to vary a person's leave to remain in the United Kingdom if the result of the refusal is that the person has no leave to remain is an appealable immigration decision (s.82(2)(d)). A decision that a person unlawfully in the United Kingdom is to be removed from the United Kingdom by way of direction under s.10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 is also an appealable immigration decision (s.82(2)(g)). S.84 sets out the grounds of appeal on which appeals against immigration decisions may be brought. The same grounds will often, but not always, apply to the different types of immigration decision under s.82. A Tribunal is required to allow an appeal insofar as a decision was not in accordance with the law (including the Immigration Rules) (s.86(3)(a)). A Tribunal must also allow an appeal in so far as it thinks that a discretion exercised in making a decision against which the appeal is brought should have been exercised differently (s.86(3)(b)). All four of these claimants brought appeals against the Secretary of State's refusal to vary their leave to remain. Their grounds of appeal under s.84 differed. But it is of significance to observe that the only decision they appealed against was the Secretary of State's refusal to vary. They did not suggest at any stage that he should decide to issue removal directions in tandem with the decision he was required to reach as to variation of leave.
11. The importance of a decision to issue removal directions is that it triggers an obligation imposed by paragraph 395C to consider factors known to the Secretary of State and relevant to his decision whether or not to issue removal directions. S.10 provides:-

"(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:

(i) age;

(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."

12. Each of these claimants has remained in the United Kingdom lawfully. Whilst a person's appeal under s.82(1) is pending he may neither be removed from the United Kingdom nor required to leave (s.78(1)(a) and (b)). S. 104 identifies the period during which an appeal is pending. That period does not end until an appeal under s.82(1) is finally determined. An appeal under s.103B (like the appeals brought by these claimants) awaiting determination by the Court of Appeal is not finally determined for the purposes of s.82(1). The claimants' appeals to the Court of Appeal were brought pursuant to s.103B. The effect of the Court of Appeal's postponement of its decision to dismiss the claimants' appeals for want of jurisdiction is that their appeals are still pending for the purposes of s.78. Thus the claimants were afforded the opportunity of bringing these judicial review proceedings and testing their submissions that the Secretary of State was required to make a decision whether to issue removal directions whilst they remained in the UK lawfully.
13. Once the Secretary of State had refused these claimants' applications to vary, their leave to remain would have expired but for the operation of s.3C of the Immigration Act 1971. S.3C extended their leave during the period that their appeals under s.82(1) were pending (s.3C(2)).
14. The fact that s.78 precluded the removal of these claimants from the United Kingdom does not prevent the Secretary of State from giving directions for their removal (see s.78(3)(a)). Similarly, whilst their leave to remain in the United Kingdom was extended by virtue of s.3C(2)(b), s.47 of the Immigration, Asylum and Nationality Act 2006 has conferred a power on the Secretary of State to decide that they were to be removed. It is noteworthy that s.47 does not impose any obligation to do so.
15. It is accepted that the Secretary of State has the power to make a decision to issue removal directions notwithstanding that the claimants remain lawfully in the United Kingdom. Accordingly, if he chooses to exercise that power, he is under a duty to consider the factors to which paragraph 395C refers. If he decides not to exercise his discretion favourably, and issues removal directions, that is an immigration decision under s.82(2)(g) and it may be appealed against on the ground identified by s.84(1)(g) that the Secretary of State should have exercised that discretion differently. The AIT is required to allow the appeal if it takes that view (s.86(3)(g)).
16. The crucial question in the instant case is whether the Secretary of State has, not merely a power, but an obligation to make such a decision whilst the claimants remain lawfully in the country. The advantage to the claimants, if the Secretary of State makes a decision to remove, would be to require the Secretary of State to consider the relevant factors known to her, including those factors specifically identified in paragraph 395C at a time whilst they remain lawfully in the United Kingdom, and thus, at a time when they could invoke their right of appeal under s.82(2)(g) or (ha) to a Tribunal whilst they remain, lawfully, within the United Kingdom.
17. The claimants rest their submission that the Secretary of State was under a duty to decide whether to issue removal directions and thus required to consider relevant factors known to him under paragraph 395C on two foundations. First, they contend that a failure to do so requires them to remain in the United Kingdom as overstayers before they can invoke paragraph 395C. This will expose them to sanctions under the criminal law and other substantial disadvantages. Second, it is inconsistent with the purpose of the legislation relating to appeals that all grounds of appeal should be advanced at the same time and a succession of appeals should be avoided.
18. That the claimants will be exposed to substantial disadvantage cannot be doubted. Once a claimant's variation application is refused and once any appeal has finally been determined, withdrawn or abandoned, a claimant who does not leave voluntarily commits a criminal offence under s.24(1)(b) of the Immigration Act 1971. He loses his right to work and an employer who employs him is guilty of an offence under s.8 of the Asylum and Immigration Act 1996.
19. Entry clearance is to be refused to former overstayers who have not left voluntarily within 28 days (paragraph 320 (7B): see TEC [7]).
20. Entitlement to state benefit is also affected. Further, the claimants would not be entitled to appeal against directions that they be removed, pursuant to s.82(2)(g) or (ha) while they are in the United Kingdom. S.92 of the 2000 Act precludes an appeal under s.82(1) while they are in the United Kingdom unless they have made a claim that removal would be incompatible with their Convention rights (s.92(4)(a)), read with s.113(1)). None of these claimants suggest that they have a human rights claim in relation to their removal within the meaning of s.92(4) and s.113.
21. The second basis on which the claimants rest is that a decision whether to issue removal directions in tandem with a decision to refuse variations achieves the aim of the legislative policy relating to appeals. The underlying legislative policy of the 2002 Act is:-

"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 [2002] 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 [2009] EWCA Civ 1076, Moore-Bick LJ at [78], Sullivan LJ at [103]). 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)).

22. In AS (Afghanistan) the majority of the Court of Appeal concluded that an appeal may be brought to the AIT on any ground on the basis of which a person seeks leave to enter or to remain and not merely on those grounds considered by the Secretary of State. Thus, in such cases the Tribunal becomes the primary decision-maker. The appellant must put forward all his reasons for challenging an immigration decision and the Tribunal has the obligation to determine those grounds in one set of proceedings (Moore-Bick LJ at [81] and [84], Sullivan LJ at [104-107]). Arden LJ, who dissented, nevertheless agreed with the majority as to the legislative policy of preventing successive applications for leave to enter or remain:-

"Successive applications are likely to prolong the period in which a person's status is uncertain and undetermined." [45]

Her disagreement was confined to the statutory construction most likely to achieve that legislative objective.

23. In the case of each of these claimants the Secretary of State did exercise his power under s.120 to require the claimants to state any grounds on which they should not be removed. None were advanced.
24. The two foundations of the claimants' submissions are based on the decision of the Court of Appeal in TE (Eritrea). That decision drew from the earlier authority of JM (Liberia) v SSHD [2006] EWCA Civ 1402 [2007] ImmAR 293. In JM the question was whether the AIT had jurisdiction to consider whether removal would be incompatible with the appellant's Convention rights by way of reconsideration of a decision to refuse to vary his leave to enter. Resolution turned on the question whether the words in s.84(1)(g):-

"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 [16].

25. Laws LJ resolved the question of construction by reference to the two considerations relied upon by Mr Malik in the instant case. Firstly, if the AIT were correct, the human rights issue would not be justiciable; he must either leave the United Kingdom, as the criminal law requires, without his human rights claim being determined, or as an overstayer, await removal directions [17]. Laws LJ continued:-

"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." [18]

26. The second ground upon which Laws LJ founded his decision was the legislative policy to which I have already referred which, as he said, "leans in favour of what are called 'one-stop appeals'" [23]. Accordingly, he construed s.84(1)(g) as referring to the indirect consequence of the refusal to vary [27]. In those circumstances, the AIT was required to deal with the human rights point once it was properly before it [28] and despite the fact that no removal directions had been given.
27. The same policy considerations were applied by the Court of Appeal in a different context in TE (Eritrea). It is important to understand the issue before the court. The appellant appealed against a decision refusing to vary her leave to remain on grounds which included a reference to a breach of her human rights under the Convention. But those grounds made no reference to paragraph 395C (see the dissenting judgment of Lloyd LJ, [29-30]). Following dismissal of the appeal by the immigration judge the applicant sought reconsideration and for the first time referred to paragraph 395C (Lloyd LJ, [32]). The Senior Immigration Judge, on reconsideration, acceded to the Secretary of State's submission that since the appellant was not an overstayer the Home Secretary could not yet consider removing her and thus the appellant could not rely on paragraph 395C to resist removal ([5] and [6] per Sedley LJ). Before the Court of Appeal, the Secretary of State argued that whilst there was nothing to prevent the Home Secretary from dealing with the issue of variation and removal in immediate sequence, it was not "necessarily unfair or unreasonable to separate the two stages" (a submission recorded at [12]).
28. The majority of the court, founding itself upon the reasoning of Laws LJ in JM, concluded that there was nothing to prevent the appellant from arguing before the Tribunal that she should not be removed on the basis of factors under paragraph 395C nor any legal inhibition to prevent the Senior Immigration Judge resolving those issues. The majority of the Court of Appeal concluded that there was no good reason for not considering variation and removal "in tandem" and that it was unfair to segregate the two decisions. Sedley LJ said:-

"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."

29. Lloyd LJ, in his dissenting judgment, would have dismissed the appeal on the ground that the Senior Immigration Judge, on reconsideration, had no jurisdiction to consider an appeal on the basis of paragraph 395C. The point had never been argued before the immigration judge who first heard the appeal from the Secretary of State's refusal. It had never formed a ground of appeal on the basis of which reconsideration was sought [39]. Paragraph 395C, as Lloyd LJ pointed out, pre-supposes that the decision-maker had relevant material at the time the decision was taken. It refers to relevant factors "known to the Secretary of State" [40] and [41]. The Secretary of State was not told of factors under paragraph 395C which it was subsequently contended he ought to have considered before issuing removal directions. In those circumstances Lloyd LJ concluded that the Secretary of State could not fairly be criticised for a failure to have regard to factors of which no mention had been made.
30. The Secretary of State did not rely on the jurisdiction point [42]. The majority of the court did not deal with it. Lloyd LJ turned to a second point of disagreement with the majority. Consideration of the factors under paragraph 395C was a process to be undertaken separately from and later than any consideration of a claimant to be entitled to leave to enter or to an extension of leave to remain [49]. He concluded that there was no obligation upon the Secretary of State to undertake a consideration under paragraph 395C even if asked to do so [46] and [55], still less was there any such obligation where she had not been asked to do so [55]. The correct course was for the Secretary of State, if asked, to decide whether to issue directions while a person still has leave to remain and, if appropriate, seek judicial review of an adverse decision.
31. However, he accepted that it would have been sensible for the Secretary of State to consider paragraph 395C if the point had been raised earlier and that since it had been raised at the reconsideration stage, it would be appropriate for the Secretary of State to undertake that consideration following the handing down of the judgment since she had agreed that there would be an in-country right of appeal if the paragraph 395C decision was adverse ([21] and [57]).
32. This court is bound by the decision in TE. But it is important to identify what TE decides. It decides that there was no legal inhibition against the Home Secretary or the Tribunal acceding to the appellant's wish expressed at the reconsideration stage that a decision as to removal directions should be made while the claimant remained lawfully in this country. In such circumstances the Home Secretary was required to concur with the appellant's desire not to break the law [19].
33. All the members of the Court however expressly rejected the proposition that the Secretary of State was always required to make decisions as to variation and removal "in tandem" [21] (and Lloyd LJ at [46] and [55]). Sedley LJ remarked that a comprehensive decision would be the right course to take if "by inviting submissions as to why removal should not follow refusal" such a decision "can be arrived at" [18]. That allows of circumstances where no such decision can be reached. Sedley LJ goes no further than saying that:-

"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. [21]"

That does not suggest any legal obligation on the part of the Home Secretary.

34. In circumstances where the notification under s.120 has not elicited reliance on any relevant factors under paragraph 395C and where no decision as to removal directions is requested at any stage, it is difficult to see how such a comprehensive decision could be arrived at. It is important to recall that paragraph 395C does not identify every relevant factor on the basis of which the Secretary of State's discretion should be exercised. It is not a provision which defines "relevant factors". Paragraph 395C refers to relevant factors including those specified in (i)-(viii). It is not surprising that in relation to a discretion there is no comprehensive definition of the factors which might arise under paragraph 395C. Moreover, as I have recalled, the obligation to have regard to those relevant factors is limited to those factors "known" to the Secretary of State. Where no factors have been advanced in response to a s.120 Notice, nor subsequently on reconsideration, it is not possible to see how any legal obligation to consider unknown factors can be imposed as a matter of law on the Secretary of State. It is one thing to conclude that there is power to consider removal directions and no good reason not to exercise it, quite another to impose an obligation upon her to do so, where no such factors have been hitherto relied upon.
35. The conclusion of the majority in TE as to the question it decides leaves room for me to draw from the reasoning of Lloyd LJ [47]-[49] when considering the different question as to whether an obligation, as a matter of law, is to be imposed upon the Secretary of State, even though no request to consider removal directions had been made.
36. The place of paragraph 395C within the structure of the relevant statutory scheme tells against the imposition of a legal obligation on the Home Secretary. The function of paragraph 395C is to impose an obligation to consider factors known to the Secretary of State and relevant to the issue as to whether, as a matter of discretion, she should not require a person's removal, notwithstanding the absence of any right to remain. Paragraph 395C confers a benefit upon those who have no right to remain and have overstayed. The decision to remove triggers the benefit of a further right of appeal although, by virtue of s.92, it must be made from outside the United Kingdom, and by virtue of s.84(1)(f) a ground of the appeal may consist of a challenge to the exercise of the 395C discretion. Removal directions will only normally be necessary where one who has no right to remain refuses to leave. The discretionary factors under paragraph 395C will only normally arise once a person, without leave to remain, fails to leave voluntarily. The fact that paragraph 395C relates only to a discretion and not to a right demonstrates its function within the rules and the statutory scheme.
37. Thus consideration of the factors to which paragraph 395C relates is a separate process from consideration of a person's right to remain. The obligation imposed by that paragraph concerns a discretionary decision following refusal of leave or a variation. Two features of the statutory scheme demonstrate the distinction between a decision whether to vary leave and the discretionary decision whether to issue removal directions. First, any appeal against a decision to issue removal directions, relying on 395C, is an appeal against that discretionary decision and not against a refusal of variation of leave. The discretionary decision to issue removal directions is a decision identified in s.82(2)(g). A refusal to vary leave to remain is a decision identified in s.82(2)(d). Both decisions may be appealed on grounds identified in s.84, but s.84(1)(f) would have no application to a refusal of variation.
38. I draw attention to these distinctions because, in light of the decision in TE, it is easy to overlook the fact that the appeal in JM was not against a discretionary decision to issue removal directions but against the refusal of a variation. The human rights grounds relied on by virtue of s.84(1)(g), were grounds in support of the appeal against the refusal of a variation not in support of an appeal against any discretionary decision to issue removal directions. If those human rights grounds were made good, then the refusal of a variation would have been successfully impugned and no question of subsequent removal directions could have arisen. Hence the dilemma and the error of principle identified by Laws LJ [17] and [18]. Laws LJ was not referring to paragraph 395C but to human rights grounds which founded an appeal against a refusal of variation. The claimant was, if the AIT's construction were correct, forced to criminalise herself in order to invoke a ground of appeal against the refusal of variation. These claimants are not forced to criminalise themselves in order to rely on paragraph 395C. On the contrary they are entitled to rely upon paragraph 395C now that they have been refused a variation if they decline to leave voluntarily and the Secretary of State issues removal directions. In such circumstances they will have the benefit of a right of appeal, albeit only once they have left.
39. Second, whilst the grounds on which a discretionary decision under s.82(2)(g) may be appealed overlap with those on which an appeal against refusal under s.82(2)(d) may be based, s.92 distinguishes between the appeals by forbidding an in-country appeal in respect of the discretionary decision to issue removal directions, save where reliance is based on breach of the Convention.
40. TE teaches that neither of these distinctions prevents the Secretary of State or a Tribunal considering a removal decision whilst a claimant is lawfully in the United Kingdom and, thus, does not preclude an in-country appeal. But TE does not require the statutory structure and the place of paragraph 395C within it to be ignored when considering the different question of the obligation for which the claimants contend.
41. The importance of the evidence of a Senior Executive officer in the Judicial Review Unit of the United Kingdom Border agency, Mr. Sainsbury, is not to demonstrate administrative inconvenience if an obligation, as a matter of law, were to be imposed on the Secretary of State always to consider variation and removal directions in tandem. Mere administrative inconvenience would not justify segregation (TE[19]). But the evidence shows that the reason why the Secretary of State gives separate consideration to the two distinct decisions whether to vary and whether to issue removal directions is that the two decisions require different expertise stemming from their distinct place in the statutory scheme.
42. A substantial number of those refused leave to remain leave voluntarily. In their cases no question arises under paragraph 395C; the law imposes no requirement to consider paragraph 395C in their case. It is difficult to see how such an obligation could be legally imposed at a stage when no-one knows whether the claimant seeking variation intends to leave voluntarily or not.
43. Further, Mr Sainsbury describes how Local Immigration Teams, within the teams considering variation, acquire and deploy specialised experience and expertise in considering the wide number of factors relevant to the discretionary decision whether to issue removal directions. Potential enforcement requires separate consideration and expertise from that which teams considering variation must exercise. This seems to me not merely a matter of convenience but of benefit to claimants seeking to rely on paragraph 395C; it is a means of achieving fair and effective immigration control. That objective would be undermined if, in every case, despite the substantial number of voluntary departures, paragraph 395C had to be considered.
44. In a supplemental skeleton, a new point was raised by Mr Zane Malik relying on breaches of Article 8. He contended that the consequence of segregating the decision as to variation and the discretionary decision as to removal is to breach the claimants' rights enshrined in Article 8. If they must wait until they have committed a criminal offence before a decision to remove is made they are deprived of the opportunity to work or to continue their studies. Working and the pursuit of education are activities integral to their personal life (see Niemitz v Germany [1992] 16 EHRR 97 at [29] and R (Razgar) v SSHD [2004] UKHL 27 at [9]).
45. It seems to me that the alleged infringement of Article 8 stems from the legislation which provides that one whose claim to variation fails and whose appeal is no longer pending can no longer lawfully remain within the United Kingdom. It is a challenge to the consequences of being an "overstayer".
46. Mr Zane Malik does not contend that the legislation is itself incompatible with the Convention. Nor could any such contention be sustained. It is plain that there must come a time when the High Contracting Parties must be entitled to remove those whose right to remain within their countries has ceased. Nothing in the Convention requires the United Kingdom to refrain from enforcing removal against those who have no right to remain and whose removal will not breach their Convention rights.
47. For the reasons I have given, the claimants have failed to establish any obligation on the part of the Secretary of State to consider removal directions at the same as she decides to refuse a variation of leave.
48. I have waited until the end of this judgment to consider the Secretary of State's contention that these applications are out of time. It is true there has been substantial delay. The decisions not to issue removal directions at the same time as refusing variation were made more than a year before these applications to move by way of judicial review. The last decision of refusal was made on 21 January 2009. TE (Eritrea) was decided on 11 March 2009. The Secretary of State contends that these applications should have been brought promptly after that judgment was handed down and in the case of Samir Abbasi and Divyeshkumar Patel the applications could have been made in time, since time expired in their cases on 19 and 21 April 2009, after the TE judgment. A careful reading of the TE judgment, and particularly the judgment of Lloyd LJ, would have indicated to the claimants that it would not be possible to appeal to the Court of Appeal but that they would have to move, promptly, by way of judicial review.
49. In the light of the approach of the majority in TE it is easy to see how even one as skilled as Mr Zane Malik might consider an application to the Court of Appeal to be appropriate, all the more so in the light of the permission granted by Sir Richard Buxton. In those circumstances, it seems to me that whilst the Court of Appeal has now decided it had no jurisdiction, the claimants are not to be blamed for their failure to anticipate that conclusion. In those circumstances I shall not refuse these applications on the grounds of delay.
50. I grant permission to move by way of judicial review but I reject the applications.