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
		01/04/2014

Mr Justice Burnett:

Introduction

1. These two claims for judicial review, pleaded in identical terms, concern a guidance document issued by the Home Office entitled "Requests for removal decisions" first issued in February 2012 ["the guidance"]. It relates to individuals who have made an application for leave to remain in the United Kingdom which has been refused with no right of appeal, in respect of whom no concurrent decision to remove was made, but have requested in a pre-action protocol letter that a removal decision should be made. The purpose of that request is to generate a right of appeal. Three generic grounds were raised in the claim forms:

(a) Whether the guidance is unlawful because the Secretary of State failed to lay it before Parliament as required by section 3(2) of the Immigration Act 1971 ("the 1971 Act").

(b) Whether the guidance is unlawful as a result of being insufficiently certain and transparent.

(c) Whether the guidance is unlawful because it is inconsistent with the policy and objects of section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act").

The Facts

2. Mrs Patel entered the United Kingdom with leave on 27 August 2009 as a Tier 4 student. Her entry clearance was valid until 30 December 2011. Her husband joined her as a dependant. On 10 December 2010 Mrs Patel and her husband had a child. On 28 December 2011 Mrs Patel applied for leave to remain in the United Kingdom to pursue access rights to her child. That was rejected on technical grounds but renewed. In June 2012 a residence order was granted to the child's paternal grandparents who, with the permission of the court, left the United Kingdom with him later that month. On 4 July 2012 Mrs Patel's application for leave to remain was refused with no right of appeal. She was told that if she failed to leave the country voluntarily, enforcement action would be taken and that further consideration would be given to the circumstances of her case at the time. A pre-action protocol letter was sent on 13 October 2012 by solicitors acting on behalf of Mrs Patel. It said this:

"We are instructed to issue judicial review proceedings to challenge the Secretary of State's decision. We propose to base the judicial review challenge, inter alia, on these grounds:

The SSHD's decision is irrational and unlawful.

The SSHD's failure to issue an appealable decision is disproportionate, irrational or otherwise unlawful.

The SSHD's decision is unlawful under Article 8 of the European Convention on Human Rights.

The purpose of this letter is to invite the Secretary of State to reconsider her decision (or make an appealable decision) in order to avoid this judicial review challenge."

3. The claim form which followed challenged the failure to make a removal decision in her case. The grounds identified were the three set out above, even though there was no mention of them in the letter, nor had any effort been made to argue that Mrs Patel fell within the guidance. Mrs Patel's case has become academic because on 9 April 2013, for reasons of pragmatism in the litigation, the defendant made a removal decision. Mrs Patel appealed but her appeal was dismissed on 8 October 2013.
4. Miss Oboh entered the United Kingdom on 27 August 2002. She had entry clearance as a visitor until 23 February 2003. Then she had leave to remain as a voluntary worker until 7 July 2004. On 8 July 2004 Miss Oboh applied for leave to remain as a student. That application was refused on 6 September 2004. She did not appeal. She had no subsisting right to remain in the United Kingdom but did not leave. She became an overstayer.
5. On 16 February 2012 Miss Oboh sought to regularise her stay in the United Kingdom by making an application relying upon Article 8 of the European Convention on Human Rights. That application was refused on 7 May 2013. On 16 May 2013 her solicitors wrote to the Secretary of State in terms which were almost identical to those used in the letter on behalf of Mrs Patel. A judicial review claim form followed on 14 August 2013 in which the challenge was to the continued failure of the Secretary of State to make an appealable decision. The grounds of challenge were limited to the three issues already identified.

The Guidance and Its Background

6. Both of these claimants were refused leave to remain but had originally entered the United Kingdom lawfully. They were "overstayers". The refusal of their respective applications did not in itself generate a right of appeal under the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The power to remove these claimants is found in section 10 the 1999 Act. The practice of the Secretary of State in cases of this sort is not routinely to issue removal directions under section 10 of the 1999 Act at the same time as refusing leave. The expectation, and indeed the fact, is that most people in the circumstances of these claimants leave voluntarily as they are obliged to do. The issuing of removal directions has the effect of conferring a right of appeal which, in some circumstances, may be exercised from within the United Kingdom. In many cases in the Administrative Court, and a number in the Court of Appeal, various arguments were advanced to the effect that it was unlawful for the Secretary of State to fail to issue removal directions at the same time as refusing the substantive application. In R (Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161 the Court of Appeal concluded that there was no obligation upon the Secretary of State to do so. The court decided that it would be contrary to the policy and objects of the 1999 Act to require the Secretary of State to act in the way suggested, because Parliament had made it clear that the list of appealable immigration decisions found in section 82(2) of the 2002 Act was not intended to cover overstayers who were refused leave (see paragraph [7] of the judgment of Sullivan LJ). The court further rejected an argument that it was irrational to fail to issue removal directions at the same time (see paragraph [9]). That approach was endorsed by the Supreme Court in Patel and Others v Secretary of State for the Home Department [2013] 3WLR 1517. In paragraph 27 of his judgment Lord Carnworth said:

"The powers to issue removal directions under section 10 of the 1999 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…"

7. The material parts of the guidance are as follows:-

"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.

When an application for leave to remain from an applicant with no current leave is refused, for example, an overstayer or illegal entrant, the decision is not an appealable immigration decision for the purposes of section 82(2) of the Nationality, Immigration and Asylum Act 2002.

However, the applicant cannot be removed until a removal decision is served. This decision is an appealable immigration decision under section 82(2) of the Nationality, Immigration and Asylum Act 2002.

There is no requirement to make a removal decision at the same time as refusing leave to remain in these cases, although this is common practice in asylum cases. The applicant is expected to leave the UK voluntarily when the application is refused.

This guidance only applies if 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 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.

When making a 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 Home Office 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 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 Home Office 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.

First you must 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 the refusal decision must be maintained, you must consider the information in the refused application for leave to remain and any relevant Home Office databases. You must then decide if the applicant meets the criteria for a removal decision to be made.

Criteria Met

If one or more of the criteria outlined above are met, you must send the applicant the criteria met letter. See related links for a copy of the letter.

A removal decision must be made and served within three months of the date of this response. For guidance on making and serving administrative removal decisions see related links:

•    01 Illegal entrants

•    7 Service of notice of illegal entry: Procedures

•    50 Persons liable to administrative removal under Section 10

•    51 Administrative removal.

Criteria Not Met

If the criteria outlined above are not met, you must send the applicant the criteria not met letter. See related links for a copy of the letter."

8. The guidance is primarily concerned with the timing of a removal decision. It is not concerned with the underlying merits of the refused application, or with the merits of any contingent appeal that in due course might be lodged. It is not directly concerned with the removal decision itself. The guidance applies only if the four criteria set out in the section headed "About this guidance" are met. As can be seen from the further criteria set out in the section headed "Accepting a request for a removal decision", the focus of concern is on cases involving the welfare of dependant children and also the public purse. The first three bullet points deal with those issues. The final bullet point, enables a person seeking a removal decision to identify exceptional and compelling reasons why the removal decision should be made now, rather than at a later date.
9. That the guidance is concerned with timing rather than substance is confirmed by the terms of the refusal letter. The letter sent to Miss Oboh concluded with these words:

"… it is not accepted that there is any requirement to make a removal decision at this stage."

Ground 1 – Failure to Lay the Guidance Before Parliament

10. Part 1 of the 1971 Act is concerned generally with the regulation of entry into and stay in the United Kingdom. Section 1(2) provides that those not having a right of abode in the United Kingdom may live, work and settle here 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."

Section 1(4) provides:

"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 (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) 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."

11. Section 3 provides general provisions for such regulation and control, and in particular the need for those who are not British Citizens to obtain leave to enter the United Kingdom; as material:

"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, laid down by him 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) above 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) …"

12. The claimants submit that the guidance should have been laid before Parliament pursuant to the requirements of section 3(2) of the 1971 Act. It is common ground that it was not. They submit that the guidance amounts to a rule of practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the United Kingdom of persons required to have leave to enter. The Secretary of State's first response is that these claimants are subject to removal not under the 1971 Act but pursuant to the provisions of section 10 of the 1999 Act. That is not in doubt. However, the claimants point to the fact that the guidance on its face covers illegal entrants who subsequently, but unsuccessfully, try to regularise their position by making an application for leave to remain. That is because the guidance refers to illegal entrants in its opening section and also refers case workers to the enforcement instructions relating to illegal entrants and not only to those liable to removal under section 10 of the 1999 Act.
13. Illegal entrants are indeed liable to removal under powers found in the 1971 Act and not the 1999 Act.
14. The claimants' submission involves the proposition that when the term "entry into and stay in the United Kingdom" was used in sections 1(4) and 3(2) of the 1971 Act, "stay" included "mechanisms and timing of removal". That is because if a person is not immediately removed the effect is that he "stays", albeit without leave, unless he departs voluntarily or is later removed. They suggest that the requirement to lay the guidance before Parliament arises in connection with removals under section 10 of the 1999 Act because that also is concerned with the regulation and control of immigration.
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).
16. Both parties rely upon three recent decisions of the Supreme Court, namely R (New London College Ltd) v Secretary of State for the Home Department [2013] 1 WLR 2358; R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208; and R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192. All concerned questions relating to the reach of section 3(2) of the 1971 Act. The claimants suggest that the Supreme Court should properly be understood as requiring guidance dealing with removal decisions, and the timing of removal decisions, to be laid before Parliament, at least when the guidance is prescriptive. The Secretary of State, submits that the Supreme Court has, in effect, determined this issue against the claimants. In my judgment she is right. Alvi concerned rules relating to the points based system for non-European Economic Area migrants who wished to work in the United Kingdom. The rules laid before Parliament referred to the need for a migrant's proposed job to appear on a list of skilled occupations kept by the United Kingdom Border Agency. That was found on the Agency's website (an Occupation Code of Practice) but it had not been laid before Parliament and might change from time to time. The question was whether it was a rule of practice which section 3(2) required to be subject to parliamentary scrutiny. The submissions before the Supreme Court advanced various formulations about where the line should be drawn. In paragraphs 93, 94 and 97 of his judgment in Alvi Lord Dyson said this:

"93. So far, I have engaged in what may appear to be the rather negative exercise of explaining why I have difficulty in accepting the solutions that have been put forward hitherto. I accept that a line has to be drawn somewhere. The court has to do its best to provide a solution which (i) is consistent with such clues as are to be found in the statute, (ii) is not administratively unworkable and (iii) is reasonably certain and easy to apply, thereby minimising the risk of unwelcome litigation.

94. In my view, the solution which best achieves 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."

All members of the Supreme Court approved Lord Dyson's formulation, albeit its application to the aspect of the points based system with which the court was concerned presented difficulty.

17. The test enunciated by Lord Dyson in Alvi was applied without qualification in New London College Ltd – see paragraphs [7] and [8] of the judgment of Lord Sumption.
18. The claimants suggest that Lord Dyson articulated a different test in R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192. The Supreme Court there considered whether the Home Office policy DP5/96 was a rule which should have been laid before Parliament. It was heard at the same time as Alvi and judgments were handed down on the same day in both cases. The central issue in Munir concerned the reach of prerogative powers in the immigration field. The second issue was whether DP5/96, a policy which provided that as a matter of discretion and exceptionally the Secretary of State would grant leave to remain in circumstances where the rules did not allow it, should be laid before Parliament. It was concerned with the grant of leave and so, at first blush might fall the within the compass of what should be laid before Parliament. However, the Supreme Court concluded that because of its flexibility it was not a "statement of practice to be followed" within the meaning of section 3(2) and thus did not need to be laid before Parliament. The claimants focus on the question of "flexibility" in Munir and contrast it with what they submit in the inflexibility of the guidance. But that misses the point. The guidance, unlike DP5/96, is not concerned at all with leave etc., matters which are governed by section 3(2).
19. The approach of the Supreme Court in Munir does not qualify the statements of principle in Alvi.
20. In my judgement the guidance does not fall within Lord Dyson's formulation of what section 3(2) of the 1971 Act requires to be laid before Parliament. It is not a requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, nor is it a provision "as to the period for which leave is to be given and the conditions to be attached in different circumstances". There was no requirement to lay it before Parliament for approval.

Ground 2 – Uncertainty of the Guidance.

21. The claimants submit that the term "exceptional and compelling reasons" is an ambiguous and vague concept and therefore objectionable in public law terms. It is unclear how this ground related to the circumstances of the two claimants given that neither made any effort in correspondence to bring themselves within the terms of the guidance. It was not mentioned by their solicitors. It is also unclear what relief is being sought in connection with this ground. They readily accept that in a myriad of circumstances, not only in the immigration field but across the whole range of executive activity, guidance relating to the exercise of discretionary power often has a catch all category of this nature. Nonetheless, they pray in aid observations made by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2012] AC 245 at paragraph 34 that:

"The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements."

Lumba was concerned with the application of a policy that was not published but was applied to Mr Lumba. The claimants also rely upon various observations made by Blake J in R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin) where he was critical of the lack of specificity in a discretionary policy then in place relating to Ghurkhas. I do not consider that either case provides any support for the argument advanced by the claimants. There is nothing uncertain or unclear about this aspect of the guidance.

22. A further discrete argument was developed in support of this ground. Reference was made to chapter 53 of the Enforcement Instruction and Guidance, which is concerned with the removal of illegal immigrants from the United Kingdom. They will not be removed if to do so would breach the Refugee Convention or the European Convention on Human Rights, or if there are "exceptional circumstances" for not doing so in an individual case. The claimants submit that it is confusing to have "exceptional circumstances" policies in two related documents which may not have the same meaning.
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.

Ground 3 – The Guidance is Unlawful and Irrational

24. The claimants submit that it is irrational to distinguish between those who ask for a decision (and satisfy the three anterior criteria) and those who do not ask for a decision. They submit that such a distinction is in some way contrary to the policy and objects of section 10 of the 1999 Act.
25. This submission proceeds upon a misunderstanding of the nature of the guidance. Section 10 of the 1999 Act confers a broad discretionary power upon the Secretary of State regarding removals. The guidance goes to the timing of decisions in a narrow class of cases. It is not irrational to decide to prioritise decisions on request for those who can demonstrate that they fall within one of the four categories identified in the guidance. On the contrary, it is a proper recognition that for good reasons some cases are deserving of priority treatment. I am unable to understand how it can be said to be irrational to limit the application of the guidance to those who positively seek to benefit from it. Equally, it is impossible to sustain an argument that timing decisions of the nature contemplated by the guidance impact upon the policy and objects of the statutory provision in question, the purpose of which was explained in Patel by Lord Carnworth (see paragraph [6] above).

Other Matters

26. The claimants raised two further issues, albeit they were not pleaded and no attempt to raise them in an amended pleading had been made. Miss Mannion did not object to their being ventilated. The first additional argument was that Miss Oboh's case was necessarily exceptional and compelling because, as was recorded in Daley-Murdock at paragraph [9] of the judgment of Sullivan LJ, a majority of those in the position of these claimants leaves voluntarily. Only a minority remains behind. It follows, submit the claimants, that anyone who fails to leave voluntarily is in an exceptional category. Miss Oboh makes it clear she will not leave voluntarily and so she is in an exceptional category and therefore falls within the guidance.
27. The task of any court considering a policy document, including this guidance, is to discern its meaning. This submission is to the effect that the guidance should be interpreted as requiring the Secretary of State to agree to make a decision in every case where a request is made because they are necessarily exceptional. In this submission the claimants ignore the need to demonstrate compelling reasons. But leaving that aside, to suggest that every request is necessarily exceptional is to turn the guidance on its head. It is a nonsensical interpretation of the guidance.
28. The last argument is that the Secretary of State did not reply promptly enough to the pre-action protocol letters. The claimants do not identify any associated public law breach, still less any relief that they might seek. The court was invited to make observations on the speed with which such requests should be dealt with. I hope I will be forgiven for declining that invitation. The issue of the timing of decisions pursuant to the guidance is not dealt with in the material provided in support of, or in reply to, these claims.

Conclusion

29. These two claims have been used to ventilate the arguments in respect of the three grounds upon which permission was granted. In my judgment, there is nothing of any substance in the three grounds upon which leave was granted, nor in the two ancillary matters which were raised without permission. In those circumstances these claims must be dismissed.