Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 106
P1988/08	OPINION OF LORD BANNATYNE in the cause B.Z.M. Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent; ­­­­­­­­­­­­­­­­­________________

Pursuer: Mr Komorowski, Macbeth Currie

Defender: Mr Stewart; Office of the Solicitor to the Advocate General

17 July 2009

Background

[1] This application for judicial review concerns a challenge to a notice of an immigration decision issued by the Secretary of State for the Home Department (hereinafter referred to as "the respondent") on 23 November 2008 (hereinafter referred to as "the notice"). The notice was made under the provisions of section 10 of the Immigration and Asylum Act 1999 (hereinafter referred to as "the 1999 Act").

[2] The detailed history of events prior to the issuing of the notice is not material, however, the salient points for present purposes are these:

The petitioner is a national of Malawi. He entered the United Kingdom on 5 December 2003 and was granted leave to enter for six months. A condition of the said leave was that he would not enter employment. On 18 May 2004 prior to the expiry of the said leave, the petitioner made an application to extend that leave. By operation of section 3C of the Immigration Act 1971 (hereinafter referred to as "the 1971 Act") by making such an application prior to the expiry of the original leave, the petitioner had continued leave. Such continued leave only expires on the petitioner's rights of appeal being exhausted. The petitioner was found to be working in breach of the said condition. The respondent in light of the foregoing issued the notice.

The grounds of challenge
[3] In short, the petitioner challenged the notice on the following grounds:

(i) That the petitioner has a right of appeal to the Asylum and Immigration Tribunal against the notice and that he may bring the appeal whilst he is in the United Kingdom. The issue in the case was not whether the petitioner had a right of appeal, rather it was whether the petitioner had what was described at all hands as an in country right of appeal which thus suspended the process to remove him or whether his right of appeal could only be exercised out of country after he had been removed from the United Kingdom as set forth in the notice and

(ii) Assuming that the petitioner has no right to such an in country right of appeal, he asserts that the respondent was obliged to give reasons for proceeding under section 10 of the 1999 Act rather than section 82(1)(d) or (e) of The Nationality Immigration and Asylum Act 2002 (hereinafter referred to as "the 2002 Act") and had failed to do so.

The relevant legislation
[4] The relevant provisions of section 10 of the 1999 Act are as follows:

"10(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, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;

...

(8) When a person is notified that a decision has been made to remove him in accordance with this section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."

[5] Rights of appeal against immigration decisions are dealt with by section 82 of the 2002 Act. Given the issues in this case, the important provisions are contained in section 82(2)(d)(e) and (g). These are in the following terms:

"82(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2) In this Part 'immigration decision' means-

...

(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain.

(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, ((d) and (e) are generally referred to as the curtailment provisions)

...

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) (ba) or (c) of the Immigration and Asylum Act 1999."

[6] There then follows the question from where such a right of appeal can be exercised: the first issue in this case. This is governed by section 92 of the 2002 Act. So far as relevant to this case, section 92 provides as follows:

"92(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2) This section applies to an appeal against an immigration decision of the kind specified in 82(2)(c), (d), (e), (f), (h)(ha) and (j).

...

(4) 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 ..."

The submissions on behalf of the petitioner
First head of challenge
[7] Counsel for the petitioner commenced his submissions under this head by asserting that the notice engaged section 10 of the 1999 Act, the relevant parts of which I have already referred to.

[8] It was further his contention that where section 10 was engaged in relation to a person who did not observe a condition attached to his leave (into which category the petitioner in the instant case fell) then not only sub section (g) of section 82 but also sub sections (d) and (e) were also engaged.

[9] He accepted that sub section 82(d) and (e) of the 2002 Act, would not have been engaged had the petitioner been a person in terms of section 10(1)(a) of the 1999 Act who had remained beyond the time limited by the leave because that person would have no leave at the time the decision had been made.

[10] It was thus his submission that although the notice proceeded in terms of section 10 of the 1999 Act, nevertheless it amounted in all practical senses to a decision to refuse to vary or a variation of a person's leave to enter or remain in terms of either sub heads (d) or (e) and thus engaged the said two sub sections.

[11] It was his position that there was a degree of overlap between these two provisions namely section 10 of the 1999 Act and section 82(d) and (e) of the 2002 Act which meant that in the circumstances of this case, the matter fell within the terms of both 82 (d) and (e) and section 10. He submitted that there was no necessary absurdity in these parts of the legislation having a decree of overlap in circumstances such as these.

[12] He went on to submit that it flowed from the foregoing that if sub sections (d) and (e) of section 82 were engaged then the appellant was entitled to an in country appeal, rather than in terms of the notice only an appeal which could be exercised out of country. Section 92(2) of the 2002 Act allowed an appeal while in the United Kingdom in relation to a decision specified in either sub section (d) or (e).

[13] It was accordingly his submission that the notice should be reduced as it stated that the petitioner could only bring an out of country appeal after he had been removed from the United Kingdom. He thus submitted that the notice was unlawful.

[14] His position in essence came to this: that although the notice proceeded in terms of section 10 of the 1999 Act, which gave to the petitioner a right of appeal which could only be exercised out of country, nevertheless if section 82(d) or (e) applied simultaneously then the petitioner was entitled to an in country right of appeal.

[15] It was his submission that the petitioner not being able to appeal until he was outwith the United Kingdom was the deprivation of a real right due to the obvious and very real practical difficulties which arose in trying to exercise a right of appeal from out of country.

[16] In support of these submissions the petitioner's counsel relied on a single authority namely CD India v The Secretary of State for the Home Department 2008 UKAIT 00055 (hereinafter referred to as "C. D.") a decision of Senior Immigration Judge P R Lane.

[17] The facts of that case so far as relevant to the issue before me can be stated fairly shortly and were that a decision had been taken to remove the appellant and his wife in terms of section 10 of the 1999 Act, the first appellant being in breach of a condition attached to his leave to remain. Therefore the factual position of the case was entirely on all fours with that before me.

[18] The learned judge said at paragraph 16 of his judgment in relation to the issue of whether in such circumstances sections 10 and 82(2)(e) were simultaneously engaged:

"Mr Nassin's alternative submission, however is much more powerful. This is to the effect that the decision which the respondent took in the present case, however else it might be categorised, amounted in practice to a 'variation of a person's leave to enter or remain in the United Kingdom' such that "when the variation takes effect, the person has no leave to enter or remain" and, thus, fell within section 82(2)(e) of the 2002 Act. As can be seen, an immigration decision under section 82(2)(e) is a decision of a kind to which section 92 applies, with the result that there is an in country right of appeal, regardless of whether the appellant has made an asylum claim or a human rights claim."

[19] The learned judge went on to say at paragraph 22 in his discussion of the submission made by Mr Nassin:

"If a person has never had any leave to enter or remain in the United Kingdom, or has no such leave at the date of the immigration decision in question, there is plainly a policy justification for limiting that person's right of appeal, in the way provided in section 92 of the 2002 Act. If, however, a person does have such leave, the position would seem to be otherwise, else the variation of a person's leave to enter or remain, so that leave is curtailed, would not sensibly sit within section 92(2). Where, on the very same facts as could give rise to a decision to curtail, the respondent instead decides to invoke section 10 of the 1999 Act, with precisely the same effect in practice, so far as the person in question is concerned, in that his current leave is brought to an end by the operation of section 10(8), it is very hard to see how Parliament could have intended that person to be deprived of an in country right of appeal. The fact that such a person might, in the absence of an in country right of appeal, be able to apply for judicial review against the decision of the respondent to remove him from the United Kingdom is in no sense an answer. The fact that section 10(8) of the 1999 Act uses the word "invalidates" in relation to an extant leave, does not preclude the immigration decision from falling within section 82(2)(e), as well as section 82(2)(g). If the position is equivocal, then as the Tribunal has said in GO (Right of Appeal; sections 89 and 92) Nigeria (2008) UKAIT 00025, any ambiguity in provisions dealing with rights of appeal should be resolved by a construction that would preserve rather than remove those rights."

[20] Counsel for the petitioner commended to me the reasoning of the learned judge and submitted that he had correctly analysed the statutory provisions. He submitted that in considering the said opinion I should find it of some weight in that it was the opinion of a specialist judge sitting in a specialist tribunal.

[21] Counsel for the petitioner then turned to look at certain further authorities which he conceded were not favourable to the petitioner's case. In relation to these particular authorities, his broad submission was that these cases had been wrongly decided and that they were wrongly decided, at least in part, from a misunderstanding by the courts in these cases "including the Court of Appeal" of an earlier decision by the Court of Appeal in Secretary of State for the Home Department v Lim and Another 2007 EWCA Civ 773 (hereinafter referred to as "Lim").

[22] The petitioner's counsel then turned to expand upon his general submission regarding the case of Lim and to look in some detail at the decision of the Court of Appeal in that matter.

[23] The facts of the said case so far as relevant to the instant case were that Mr Lim had been found to be in a breach of a condition and a removal direction was put in place in terms of section 10 in relation to him and his wife. Thereafter a judicial review was sought of the decision of the Immigration Officer.

[24] The petitioner's counsel submitted to me that on a proper understanding of the case of Lim the issue before the Court of Appeal was this:

In circumstances where the only form of statutory appeal open to the petitioners was one which could be exercised from out of country, were there special or exceptional factors justifying the High Court exercising its discretion to entertain an application for judicial review?

[25] Counsel submitted that in said case no argument had been addressed to the Court of Appeal that there was an in country right of appeal available to the respondent. Rather the whole case presented to the Court of Appeal by both sides was predicated on the assumption that the only form of appeal open to the Lims was an out of country appeal.

[26] He thus submitted that the Court of Appeal in the case of Lim had made no statement as to whether in the circumstances of that case (which were entirely the same as those in the instant case) the right of appeal was only exercisable out of country, which was the argument before me, and was he submitted the argument which was before the courts in the other cases to which he intended to refer.

[27] He then turned to the cases which had followed upon Lim which he submitted had been wrongly decided as the court had misunderstood what had been said in the case of Lim.

[28] The first case he turned to consider was Saleh v The Secretary of State for the Home Department 2008 EWHC 3196 (Admin) (hereinafter referred to as "Saleh").

[29] The facts of that case in so far as relevant to the instant case were:

The removal was in terms of section 10 and arose from a breach of condition and thus the facts of the case were on all fours with the instant case.

[30] In paragraph 15 of his judgment in the said case the learned judge sets out the issue in the case before him as follows:

"Thus the issue in this case is whether or not this claimant has an in country right of appeal pursuant to section 82(2)(e) with its suspensive effect or whether or not section 82(2)(e) and (g) are mutually exclusive such that he cannot have an election between those two provisions but his case is, and only is, an immigration decision under section 82(2)(g)."

Thus the issue was exactly as that before me.

[31] The learned judge thereafter in the succeeding paragraphs turns to his discussion of that issue.

[32] In paragraph 16 the learned judge sets forth his first reason for holding that (e) and (g) cannot simultaneously apply and that they are in fact mutually exclusive. He says that the legislation clearly differentiates between the two categories in that in terms of one sub section one had an in country right of appeal and under another sub section one did not have such an in country right of appeal. Counsel for the petitioner submitted to me that the foregoing analysis of the legislation begged the question as to whether circumstances could bring a case within the terms of both sub sections, as he submitted the situation was here. He submitted that there was nothing in the legislation which gave the respondent in such circumstances unilateral power to decide which route should be taken ie. gave the respondent the unilateral right to decide as to whether one had an in or an out of country right of appeal.

[33] Secondly counsel submitted that the reasoning of the learned judge at paragraph 17, where he purported to set forth a second basis as to why the two sub sections are mutually exclusive, amounted to no more than a restatement of his reasoning in paragraph 16 and was not a separate or independent reason for holding that these matters were mutually exclusive. He submitted that the said reasoning should be rejected for the same reasons that he had contended in relation to that set out within paragraph 16.

[34] As regards the third reason given by the learned judge in paragraph 18, counsel for the petitioner advised that he was not seeking to found upon the immigration rules and therefore said paragraph was of no relevance to the instant matter.

[35] Counsel thereafter turned to paragraph 19 wherein he submitted that the learned judge went on to rely on the case of Lim as supporting his view that the provisions were mutually exclusive.

[36] It was counsel's submission that the judge in so stating had misunderstood the reasoning in Lim which for the reasons he had earlier advanced had nothing to do with the issue which was before the judge in Saleh.

[37] Accordingly it was counsel's position that the reasoning of the learned judge in the Saleh case was flawed and therefore I should not follow his decision holding that there was no right to an in country appeal.

[38] Counsel for the petitioner then turned in this section of his submission to look at R K (Nepal) v The Secretary of State for the Home Department 2009 EWCA Civ 359 (hereinafter referred to as "RK"), a decision of the Court of Appeal.

[39] Counsel accepted that the issue before the Court of Appeal in the case of R K was exactly that which was before me. In addition he accepted that the Court of Appeal was specifically considering the two conflicting decisions at first instance, in the cases of C D and Saleh.

[40] Lastly, he conceded that the decision of the Court of Appeal in R K was that the case of C D was wrongly decided and Saleh was correctly decided. Nevertheless it was his position that the Court of Appeal decision was wrong and that I should not follow it.

[41] It was his submission that the Court of Appeal in R K had from the outset in their discussion of the issue misdirected themselves. It was his position that it was clear that they had misdirected themselves from the following passage in paragraph 30 of their decision:

"The starting point for any analysis must be the decision of this court in Lim. The court considered in detail the relationship between section 10 of the 1999 Act and the structure of the appeal provisions in section 82 and 92 of the 2002 Act and the extent, if any, to which a decision under section 10 can be challenged by judicial review rather than an out of country appeal."

[42] It was counsel's position that the foregoing misunderstood what had been decided in the case of Lim. It was his position that in Lim the question before the court in R K was not considered, and that rather the question before the Court of Appeal in Lim was the wholly different one which he had outlined for me earlier in his submissions (see: paragraph 24).

[43] Thus he submitted if the Court of Appeal in R K had taken as their starting point the decision in Lim, the Court of Appeal had misdirected itself in that it had misunderstood its own decision.

[44] In addition he submitted that on an examination of the decision of the Court of Appeal in R K it was clear that the Court of Appeal's decision was entirely based on this misunderstanding of Lim. In particular he referred me to paragraph 35 in the judgment of the Court of Appeal wherein it was said:

"It must follow from the Court of Appeal's decision in Lim that the court has to respect the fact that the immigration decision against the applicants that was stated to be made under section 10 of the 1999 was just that. Therefore, it must fall within section 82(2)(g) of the 2002 Act and so must only be capable of appeal out of country."

[45] Thus counsel for the petitioner submitted it was clear that the Court of Appeal's decision in R K was entirely based on Lim. Therefore it was his submission that if he was right in his analysis of the decision in Lim then the decision in R K was wrong. It was his submission that no separate reasoning was advanced by the Court of Appeal in R K and that their decision had entirely been based on this misunderstanding of Lim.

[46] Lastly, in this section of his submissions, counsel referred me to the case of Qin Yu v The Secretary of State for the Home Department 2008 EWHC 3072 (hereinafter referred to as "Qin Yu"). In this case before the High Court the learned judge at paragraph 29 held that the judgment in C D was wrong. Again counsel submitted that I should not follow the decision in this case. He submitted that the decision in this case was clearly wrong in that at paragraph 28 the learned judge came to his decision on the basis of the same understanding of the case of Lim as the judges had in Saleh and R K.

[47] In addition he submitted that the learned judge's opinion that the Court of Appeal had held in Lim that the provisions set out in section 10 had as their manifest purpose that there could be no in country right of appeal was clearly wrong and a misunderstanding of Lim.

[48] Accordingly for the foregoing reasons counsel submitted that the only case which was rightly decided was C D and he urged upon me that I should follow that case.

[49] Counsel submitted that if I were with him on his primary ground of challenge then the immigration notice was incorrect in that it did not contain a notice advising the petitioner of his right to an appeal in the United Kingdom. In support of this submission, he referred me to London and Clydeside Estates Limited v Aberdeen District Council 1980 SC (HL)1 and in particular the speech of Lord Fraser of Tullybelton at page 34;

"Logically the first point to consider is whether the provision in article 3(3) of the 1959 order to the effect that the local planning authority 'shall in that certificate include a statement in writing of...the rights of appeal' is mandatory or not. I do not think that literal compliance with the provision is mandatory; for example, if a statement of the rights of appeal had not been "included" in the certificate but had been sent with it in a separate sheet that would in my opinion have been substantial compliance and would have been sufficient. But here there was no compliance at all with the provision. The purpose of the statement required by article 3(3) clearly is to inform the applicant first that he had the right of appeal and secondly of the time in which that right has to be exercised. These are matters of importance to an applicant and Parliament, acting through the Secretary of State, has considered their importance to be such that they ought to be expressly brought to the notice of an applicant. Power to do so cannot in my opinion be treated as if it were a mere technicality or a procedural irregularity which might be overlooked."

[50] Counsel submitted that the reasoning of Lord Fraser if applied to the instant case showed that the failure to give the petitioner the information as to his in country right of appeal was a serious failure and therefore that reduction was appropriate.

[51] He also relied on Jazayeri (Removal Directions) Iran v The Secretary of State for the Home Department 2001 UKIAT 00014 and in particular referred me to paragraphs 12, 17 and 28.

Second ground of challenge
[52] Counsel then advanced his alternative ground of challenge which was to the effect that if I was not with him in terms of his primary ground of challenge, then it was his submission that the respondent was required to give reasons for proceeding to use section 10 of the 1999 Act in preference to the curtailment provisions.

[53] In support of this submission he first referred me to R v Civil Service Board Ex Parte Cunningham 1991 4AER 310 and in particular the judgment of Lord Donaldson of Lymington MR at 319 b to g:

"I then ask myself what additional procedural safeguards are required to ensure the attainment of fairness. The answer is, I believe, to be found in the judgment of Lord Lane CJ in R v Immigration Appeal Tribunal Ex p Khan (Mahmud) 1983 2AER 420 at 423 which I do not believe owed anything to the fact that the Immigration Tribunal is required by statute to give some reasons for its decisions:

"The important matter which must be borne in mind by Tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons, first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions. Where one gets a decision of a Tribunal which either fails to set out the issue which the Tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Second the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it might be quite obvious without the necessity of expressly stating it, in other cases it may not."

Judged by that standard the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free wheeling palm tree."

[54] It was counsel for the petitioner's submission that applying the principles set forth by the Master of the Rolls to the instant case the respondent required to set forth reasons for her decision to follow the section 10 route given that decision's importance to the petitioner.

[55] Counsel for the petitioner also referred me to Regina v The Secretary of State for the Home Department Ex Parte Doody and others 1993 1AC 531, a decision of the House of Lords in which the Master of the Rolls decision in Cunningham was approved, [see: the speech of Lord Mustill at 564 E to F and 565 F to 566 A]. Lastly counsel for the petitioner referred me to Regina v Higher Education Funding Council Ex parte Institute of Dental Surgeons 1994 WLR 242 and in particular to passages at 251 to 253 and 256 D.

[56] Counsel for the petitioner submitted that from the foregoing cases the following points could be taken:

(a) There was a tendancy in holding that reasons should be given in order to examine the legality of a decision.

(b) That this was particularly the case where the decision was one of importance to the petitioner.

(c) That it was particularly the case where there was no difficulty in the giving of reasons.

[57] Applying the foregoing to the present case it was his submission that it was encumbent upon the respondent to apply her mind to whether it was appropriate to proceed under section 10 where she had a discretion as to whether she decided to go down that route. It was his submission that he did not require to establish that the Secretary of State was bound to go down a route other than section 10. However, he submitted the Secretary of State must give reasons as to how she applied her mind to her discretion.

[58] In the whole circumstances his motion in terms of his primary argument was for the petitioner's first and third pleas in law to be sustained which failing he moved in terms of his alternative submission that pleas in law two and three should be sustained. In either event he moved for the respondent's pleas in law to be repelled.

Submissions for the respondent
[59] The respondent's counsel commenced his submissions by submitting what the case was not about:

(a) First he submitted the case was not about how long the petitioner had been in this country although in the course of his submissions the petitioner's counsel had made reference to this. Counsel for the respondent pointed out that no reliance was placed in the petition itself on the issue of the length of time the petitioner had spent in this country.

(b) He submitted the case was not about whether the system of out of country appeals was a bad one. It was his position that a considerable amount of what had been submitted on behalf of the petitioner flowed from an assumption that out of country appeals were unfair and therefore it was wrong or unjust only to have an out of country appeal. It was his submission that this assumption was incorrect. Parliament had expressly provided for out of country appeals and all the cases endorsed that there was nothing inherently wrong with that form of appeal. This submission was made under reference to the case of Lim at paragraphs 12, 14 and 27; the case of Saleh at paragraph 15 and R K at paragraph 33.

He accordingly submitted that although it was a theme which ran through the petitioner's submissions that out of country appeals were unfair, I should not place any weight on these submissions and the mere inconvenience which it was accepted arose in such appeals to the party making the appeal.

[60] He then returned to his substantive answer to the petitioner's primary ground of challenge.

[61] His position is capable of being stated briefly. He submitted that the case of R K correctly stated the law.

[62] In expanding upon that succinctly put submission he first referred me to paragraph 2 in the judgment in R K which was in the following terms:

"At the end of the hearing the court announced that the applications would be refused, for reasons to be given later. The court decided to reserve its reasons because it was told that there were two conflicting decisions at first instance on the point raised in this case. The first is that of Senior Immigration Judge, P R Lane in the case of R on the application of C D (India) v The Secretary of State for the Home Department. The second decision is that of Mr Ian Dove, Q.C. sitting as a Deputy High Court Judge in the Administrative Court of the Queen's Bench Division in R on the application of Malik Meharali Saleh v The Secretary of State for the Home Department which I shall refer to as Saleh. This court must determine which of those decisions is correct."

Thus he submitted the Court of Appeal decision in R K specifically resolved the issue between the two lines of authority upon which I had been addressed by the petitioner's counsel and did so in favour of the respondent.

[63] He submitted that a decision of the Court of Appeal in such circumstances should be highly persuasive. The decision was to resolve this line of authority and was therefore looking at exactly the issue upon which I was being asked to decide. He advised me that as far as he and those instructing him were aware no appeal had been taken to the House of Lords in the case of R K as at the date of the hearing before me. Immigration law he reminded me was a matter of UK Law, it was accordingly inherently undesirable that there should be a divergence in the law in this matter between England and Scotland.

[64] Turning to the reasoning in the R K case, he submitted that it was clearly correct.

[65] He submitted that paragraphs 26 to 29 of that decision contained a proper and accurate summary of the law as it had developed in the cases of C D and Saleh.

[66] He adopted the reasoning and analysis of the learned judge in Saleh as summarised in R K at paragraph 29:

"The Deputy High Court held that sections 82(e) and (g) cannot apply simultaneously to a case of this sort and the provisions were mutually exclusive. He held that this was clear from the language of sections 82(2) and 92(2) of the 2002 Act. Parliament had made it plain that decisions under Section 10 of the 1999 Act could only be subject to an out of country appeal. The approach taken by the Court of Appeal in R on the application of Lim v The Secretary of State for the Home Department supported that analysis. Therefore C D was wrongly decided and should not be followed."

[67] The foregoing he advised me encapsulated his argument as to the proper approach to the construction of the legislation.

[68] He then turned to look specifically at the reasoning of the Court of Appeal in R K.

[69] It was his position that the starting point taken by the Court of Appeal in their analysis of the legislation, namely the case of Lim, was the appropriate starting point for a proper construction of the legislation relevant to the issue before it. It was his submission that for the reasons set forth by the Court of Appeal, in paragraphs 33 to 35, it was the proper point to start. It was his submission that for the reasons set out in the said paragraphs the Court of Appeal clearly correctly understood the decision in Lim; correctly understood the relevance of the decision in Lim to the issue before it and correctly applied Lim when considering the issue before it. It was his position that there was no misunderstanding of the case of Lim by the Court of Appeal in R K.

[70] He submitted that paragraph 36 correctly stated the law on this matter:

"Parliament has decided that the SSHD can make a decision to remove a non-UK citizen under section 10(1) of the 1999 Act, or by using the curtailment provisions of the immigration rules. The two routes are distinct and must not be blurred. If the SSHD decides to use the section 10(1) procedure, then that can only be challenged in the very limited circumstances described by Sedly L J in Lim. If that is not possible (and it has not been attempted at all in this case) the applicant is confined to an out of country right of appeal."

[71] It was his submission that although the decision in C D had come from a specialist tribunal, that there was no particular basis for giving any particular weight to its decision because of that. It was in essence only a specialist body in relation to factual issues. If an issue such as statutory interpretation was the matter before me, as it was, then it must be the Court of Appeal which had the expertise and whose decision should be given particular weight.

[72] He accepted that if I were not with him in relation to his primary submission, then I would be bound to reduce the decision. He did not seek to put forward any arguments in opposition to the petitioner's position set forth in terms of London and Clydeside and Jazayeri.

The respondent's reply to the petitioner's second ground of challenge
[73] The respondent's counsel made four submissions under this head.

[74] His first submission was that the petitioner was concerned with the possibility of an irrational decision by the respondent to go down the section 10 route rather than to use the curtailment provisions. It was his position that the criticism was misconceived for this reason: That a decision which was wholly irrational would fall within the exceptional circumstances set out in the case of Lim and would thus be subject to judicial review. There was thus a safeguard if the respondent had entirely gone off the rails.

[75] Secondly it was his position that the decision challenged here was a decision to remove in terms of section 10. It was his position that clear reasons were given for that decision. In the notice reference was made to a breach of condition and the nature of the breach of condition was stated to be that the petitioner had worked. In that the decision was one which had been made in terms of section 10 the respondent was required to give no further reasons.

[76] Thirdly, it was his position that when properly analysed the petitioner's criticism came to this: that the respondent had acted unlawfully in failing to give reasons for a decision which was not truly a decision. It was his position that there was a single decision made by the respondent which was capable of challenge. That was the decision to remove the petitioner from the United Kingdom, that decision having been made in terms of section 10 of the Act. He submitted that there was no separate decision for which the respondent had to give reasons in terms of which the respondent had made the decision to go down the section 10 route rather than the curtailment provisions route. It was his position that the situation here was analogous to that set forth in paragraph 28 of the decision in Jazayeri.

[77] Fourthly it was his position that reference to the Immigration Directions supported his submission that there was no requirement for any reasons to be given.

[78] In essence it was his position that if there was any necessity to give reasons at all the respondent had given reasons. However, it was his position that there was no necessity for the respondent to give any reasons.

Discussion
First ground of challenge
[79] The first question before me was this:

When a non British citizen who has been given leave to enter or remain in the UK and is then ordered by the Secretary of State for the Home Department to leave the United Kingdom because of a breach of conditions attached to his leave, has that person an in country right of appeal?

[80] Having considered the various submissions made on behalf of the petitioner and respondent, I have decided that the answer to that question is: No.

[81] Central to the whole argument in this case were the two decisions of the Court of Appeal in Lim v The Secretary of State for the Home Department and R K (Nepal) v The Secretary of State for the Home Department. Accordingly I take as my starting point consideration of the case of Lim which counsel submitted had been misunderstood in R K.

[82] The facts of Lim so far as material were these: Mr Lim had been found to be in breach of a condition attached to his leave to remain in that he had worked at a place not authorised by the Secretary of State, who then proceeded to remove Mr & Mrs Lim under the provisions contained in section 10.

[83] The procedural history so far as relevant was this: Lloyd Jones J held at first instance that the legality of the removal directions relative to the Lims depended on the existence of a precedent fact which was capable of being determined in judicial review proceedings, and that judicial review lay in the present case because, exceptionally, the alternative remedy of an out of country appeal did not provide adequate protection against the possibility that the removal had been unlawful.

[84] Sedley L J in the Court of Appeal in Lim at paragraph 24 stated the legal principle which formed the test which the court had to apply in its consideration of the decision of the lower court, which was this:

"Where a statutory channel of appeal exists, in the absence of special or exceptional factors, the High Court will refuse in the exercise of its discretion to entertain an application for judicial review."

[85] The issue, therefore, before the Court of Appeal was this: were there special or exceptional factors which arose from the fact that although a statutory right of appeal was available to the Lims it could only be exercised out of country?

[86] In light of the foregoing I accept counsel for the petitioner's assertion that (1) no argument was advanced in Lim, that there was an in country appeal available to the Lims and (2) that the Court of Appeal in that case were not deciding the issue before me and before the Court of Appeal in R K. Nevertheless, I think that the Court of Appeal in R K was right in saying that Lim was the starting point in considering the issue then before it.

[87] Sedley L J in Lim considers at paragraphs 10, 11 and 12 the statutory framework for appeals against the decision in terms of section 10 and says:

"10. A right of appeal to the AIT against a removal decision under section 10 of the 1999 Act is provided by section 82 of the Nationality, Immigration and Asylum Act 2002. Section 84 sets out the grounds on which such an appeal may be brought, one of which - that the decision is not in accordance with the law - is accepted by both parties as including an issue such as the present one....

11. Section 92 then provides that a person may not appeal to the AIT whilst still in the United Kingdom unless the appeal is on grounds spelt out in section 84(1)(g)...

In the present case an attempt to take advantage of this provision was blocked when the Home Secretary certified as clearly unfounded a human rights claim made on Mr Lim's behalf. Nevertheless, where one element of a claim creates an entitlement to an in country appeal, any other elements fall to be decided in country as well. For the rest, all removal appeals have to be concluded from abroad.

12. It is relevant to note what is involved in the difference between in country and out of country appeals. It is not simply that the latter have to be conducted by proxy unless the appellant happens to have access to video link facilities in his or her home country and enough money to make use of them. It is that, if the appeal succeeds on the merits, the appellant has to return to the United Kingdom (assuming that leave has not by then expired) at his or her own expense. The only exception to this is that, if the AIT holds the removal to be not merely mistaken but unlawful, the appellant having been removed at public expense, will be brought back by public expense."

[88] Sedley L J then goes on at paragraph 27 and sets forth his reasons for rejecting the judge at first instance's decision that there were exceptional circumstances:

"It seems to me inescapable that the judge was influenced - as anyone of common sense and humanity would be - by the colossal over reaction to what, even if proved, was a venial breach of condition. By at least keeping the issue in country, he was doing something to mitigate it. But, while I am in entire sympathy with his motive, I cannot find anything in his reasons sufficient to support his conclusion. This was precisely the kind of issue for which the legislation, for better or for worse, prescribed an out of country appeal."

[89] In my view, the critical part of the foregoing section of Sedley L J's judgment is the following:

"This was precisely the kind of issue for which the legislation, for better or for worse, prescribed an out of country appeal."

[90] The foregoing is critical in that underlying what Sedley L J says with reference to the specific issue before him, is a principle of general application namely: that in looking at such an issue, one cannot put aside the statutory framework, rather one must have regard to what has been laid down by Parliament. Thus in the context of that case, the court had to have regard to the appeal structure set out in the legislation. To do otherwise would be to act in a manner which was not in accordance with the legislation.

[91] I am clearly of the view that the reasoning and approach of Sedley L J cannot be faulted. That approach, in my judgment, is equally applicable to the issue before me and thus I believe that in deciding the issue before me I must have regard to the appeal structure set out in the legislation. I accordingly hold that counsel's submission that the decision in the case of Lim was of no relevance in deciding the issue before me was wrong and that his submission to that effect was misconceived. Lim, of course, did not deal with the specific issue before me (or before the Court of Appeal in R K), however what it did was to lay down a principle which must form the starting point for considering the issue before me.

[92] Having considered the decision in Lim and identified its relevance in respect of the issue before me I turn secondly to R K in order to examine how the court approached its decision and in particular how it applied the decision in Lim. I would first refer to paragraph 33 where Aikens LJ set forth his analysis of the decision in Lim and its relevance to the issue of whether an in country appeal was available to the appellant in the case before him. He says:

"The importance of that decision (Lim) lies in its emphasis on the appeal structure that Parliament has laid down in the 2002 Act with respect to various types of 'immigration decision'. The courts must respect that framework, which is not open to challenge in the courts by way of judicial review unless there are "special or exceptional factors" at play. Therefore, except when such special or exceptional factors can successfully be invoked so as to give rise to a right to judicial review, the court must accept that an out of country right of appeal is regarded by Parliament as an adequate safeguard for those who are removed under section 10 of the 1999 Act."

[93] I find myself in full agreement with the analysis of the decision in Lim by Aikins L J. Accordingly in my judgement, it was entirely proper for him, as he goes on to say at paragraph 30 to take as his starting point, in deciding the issue before the court, the decision in Lim. Thus, in light of Lim, in considering the issue before him, ie whether 82(2)(e) and (g) could apply simultaneously, or were mutually exclusive, Aikins L J has begun his consideration by looking at the appeal structure laid down by Parliament with respect to the various types of immigration decision and held that he must have respect for that framework which is not open to challenge by judicial review, unless exceptional circumstances exist. That was what was said in Lim and in my view that must be a correct analysis of the position.

[94] The Court of Appeal in R K does not take anything further from the case of Lim. In particular they have not mistakenly held, as was contended for by counsel for the petitioner, that Lim directly dealt with the issue of whether an immigration decision could simultaneously fall within section 82(2)(e) and (g). In my opinion the Court of Appeal have in R K clearly understood the decision in Lim and properly understood its applicability and relevance to the issue before it.

[95] Aikens L J then proceeds to apply that general principle and approach in Lim to the particular issue before the Court of Appeal in R K. He begins at paragraph 34 by setting out the relevant factual matrix.

"It is plain in this case that the immigration decision made against the applicants was one under section 10(1)(a) of the 1999 Act. That was what was stated in the form IS151A that was served on each of the applicants. There is no issue concerning their non British citizenship. It is also clear, as a matter of fact, that the reason for the removal from the United Kingdom in accordance with directions given by an immigration officer is that they both obtained limited leave to enter and remain in the United Kingdom and that this leave was subject to conditions. They have broken those conditions in the manner I have already described. Those facts fall squarely within section 10(1)(a) of the 1999 Act."

[96] Aikens L J then returns to the decision in the Lim and says this at paragraph 35:

"It must follow from the Court of Appeal's decision in Lim that the court has to respect the fact that the immigration decision against the applicants that was stated to be made under section 10 of the 1999 Act was just that. Therefore, it must fall within section 82(2)(g) of the 2002 Act and so must only be capable of appeal out of country. I agree with Deputy High Court Judge Dove QC, that a decision made under section 10(1) of the 1999 Act cannot fall within section 82(2)(e), when Parliament has stipulated that it falls within section 82(2)(g)."

[97] I fully agree with and would adopt the analysis of Aikens L J. In my judgment to hold that in the instant case, matters fell simultaneously within section 82(2)(d) or (e) and (g) would be to run counter to the appeal structure laid down by Parliament. In the matter before me, all of the facts fell squarely within section 10(1)(a) of the 1999 Act. The immigration decision that was the subject of challenge was expressly stated to be one made under section 10(1)(a) of the 1999 Act. Accordingly as was said by Aikens L J "it was just that" (my emphasis) a decision under section 10 of the 1999 Act. Parliament has laid down a form of appeal from an immigration decision under section 10 and that form of appeal cannot be exercised in country. To hold otherwise would be to run counter to the appeal structure to which one must have regard.

[98] That Parliament intended that immigration decisions in terms of section 82(2)(d) and (e) and decisions made under section 82(2)(g) should be separate and mutually exclusive is on a proper construction of the Act, in my opinion, clear. Two courses are open in terms of the legislation to the respondent. Each leads to a right of appeal dealt with separately in the Act in terms of first section 82(2)(d) and (e) and secondly in terms of (g). These rights of appeal are then dealt with separately in terms of section 92 of the 2002 Act dealing with whether there is an in country or an out of country appeal. This separation of the two tracks or courses in my view points clearly to first 82(2)(d) and (e) and secondly (g) not applying simultaneously.

[99] I find some support for my said analysis in Qin Yu v The Secretary of State for the Home Department, Mr Justice Wilkie at paragraph 29, when considering the case of C D said:

"In my judgment the defenders contention that C D is wrong is correct. It seems to me very clear that there are two separate and distinct routes for which Parliament has provided with separate and distinct consequences."

[100] I would also adopt the reasoning of Ian Dove QC, Deputy Judge in the case of Saleh when he says at paragraphs16 and 17:

16. "In my judgment it is clear that Section 82(2)(e) and (g) cannot simultaneously apply to a case of this sort and I accept the submission that they are mutually exclusive. I do so for the following reasons. Firstly, section 92(2) clearly differentiates between the two categories of immigration decision by providing one with an in country right of appeal and the other with an out of country right of appeal. There is nothing in the legislative framework to suggest that an immigration decision of this kind can be both at the same time or that there is any right of election to the recipient of such a decision as to elect between different forums of appeal.

17. Secondly, Parliament clearly intended that when section 10 of the 1999 Act, the provisions in relation to administrative removal, were exercised, then there would only be an out of country right of appeal and to conclude otherwise would be to render redundant the clear differentiation which is obviously affected by section 92(2) by including within its operation decisions under section 82(2)(e) and excluding those, by their admission from the list, under section 82(2)(g)."

[101] In particular I agree with his reasoning to the effect that there is nothing in the legislative framework to suggest that an immigration decision can be both at the same time or that there is any right of election granted to the recipient of such a decision.

[102] Lastly I turn to the case of C D upon which the petitioner's counsel relies. As I have said this was stated by the Court of Appeal to have been incorrectly decided and I have set out that I accept the Court of Appeal's reasoning for doing so. I would only wish to add that the learned judge at first instance does not consider the structure of the appeal provisions and in stating "it is very hard to see how Parliament could have intended that person to be deprived of an in country appeal" he is missing the point that that is exactly what Parliament intended and stated that it intended.

[103] For these reasons I reject the petitioner's first ground of challenge.

Second ground of challenge
Failure to give reasons

[104] First, in my judgment there is no requirement to give any reasons for what the petitioner's counsel contended was the decision to proceed under section 10 rather than under the curtailment provisions.

[105] In my judgment counsel for the respondent was correct in submitting there was no decision as such made by the respondent as to which route to take, thus it followed that there could be no requirement to give reasons. Rather the decision the respondent took as was stated in the "Notice to a person liable to removal" was that the petitioner was a person in respect of whom asylum directions may be given in accordance with section 10 of the Immigration and Asylum Act 1999 as he was a person who had failed to observe a condition set in his leave by working.

[106] That there was no such separate decision as regards which route to take in my opinion is supported by a consideration of the legislation.

[107] On looking at the legislation as a whole, I can find no reference to such a decision as is contended for by counsel being a decision which is made by the respondent and in particular I find some support for the view that no such decision was made or should be made by an examination of the Immigration (Notices) Regulations 2003. On consideration of these regulations, the decision which the petitioner's counsel submits was made, or ought to have been made, does not appear to be one in relation to which notice requires to be given or for which reasons require to be given. This tends very much to suggest no such decision as contended for by counsel for the petitioner was or ought to have been made by the respondent.

[108] If I am wrong in holding that there was no decision in relation to which reasons should be given then it is nevertheless my view that first there was, applying the authorities relied on by counsel for the petitioner under this head, which were not disputed, no obligation to provide reasons.

[109] The petitioner's position that reasons should be provided has to be viewed against the background first of the Immigration Directorates' Instructions which set out the respondent's policies in relation to the use of section 10 and the curtailment of leave provisions. This policy is in particular contained in chapter 9, section 5, paragraph 2.2 and is in the following terms:

"Although the provision to curtail exists where a person fails to observe the conditions of leave to enter or remain, it would be more usual to proceed direct to administrative removal for breach of conditions ... (section 10 of the 1999 Act) Curtailment should only be considered where the person's actions are not so serious as to merit enforcement action, but where it would be inappropriate to let him remain for the duration of his leave."

[110] The petitioner is accordingly aware of the respondent's policy. In addition he is also aware of the full circumstances of his offence, ie his working in breach of the condition and the whole circumstances of his working in breach of that condition. Thus he can, in my judgment, deduce without the need for any reasons the factual basis of the respondent's decision to use section 10 rather than the curtailment provisions. Thus in my view, there is no requirement for any reasons to be given. The reason for the decision is self evident and therefore fairness does not require any reasons to be given.

[111] Lord Mustill in his speech in Regina v Home Secretary Ex p. Doody at 562 E-G accepted that the foregoing type of argument as to why reasons should not be provided had found favour in a number of cases although he was of the view that it was not one which would find favour with him in the particular circumstances of the case then before him. The reason that he did not believe such an argument would prevent reasons being necessary in the case before him was that it was clear from looking at a number of decisions by the Secretary of State that there was some missing factor hidden from the view of the prisoner which was at work. Thus, the mere fact that the prisoner knew the whole circumstances of his offence was not sufficient for the decision of the Secretary of State to become self evident. In my view no such factors exist in the present case and accordingly there is no necessity to produce reasons. The reasons for any such decision made by the respondent are self evident.

[112] If I am wrong in my conclusion that no reasons are required, it is my view that adequate reasons for a decision not to proceed in terms of the curtailment provisions but rather to proceed in terms of section 10 have been given.

[113] On the notice to persons liable to removal the respondent gives her reasons for removing:

"You are specifically considered a person who has breached section 10(1)(a) with an offence of 24(1)(b)(ii) 1971 Immigration Act because you have been working in breach of the conditions set in your leave."

[114] In my opinion the reasons given therein, having regard to the nature of the decision made by the respondent, are adequate when analysed in terms of the test set forth by Lord Donaldson MR in R v Civil Service Appeal Board Ex p Cunningham at 319 b to g in that the reasons (a) show to what the respondent addressed her mind and (b) there is set out the basis of fact on which the conclusion was reached, namely the breach of the relevant provisions and the nature and extent of that breach."

[115] Again I would stress that this matter has to be viewed against the background of the petitioner's knowledge of (1) the respondent's policy and (2) the background to his offence. The respondent in her reasons states that the breach of condition was the petitioner's working. That is the sole factor upon which the respondent has decided the petitioner's case. The respondent is accordingly by inference saying that the breach of the condition by working was of itself of sufficient seriousness to justify the use of section 10 rather than the curtailment procedure. The petitioner is thus in a position to know at least by inference the basis of fact upon which the respondent decided the issue of which route to go down: section 10 or the curtailment provisions. In my view in order for the reasons to be adequate nothing further is required.

Decision
[116] For the foregoing reasons I reject the petitioner's arguments in terms of both heads of challenge, and prefer the respondent's arguments in relation to both of these grounds. I will accordingly uphold the respondent's pleas in law, repel the petitioner's pleas in law and refuse the prayer of the petition.