Adamally and Jaferi (Section 47 Removal Decisions: Tribunal Procedures) [Upper Tribunal]

JurisdictionUK Non-devolved
JudgeHanson UTJ,Hanson,Mr C M G Ockelton,C M G Ockelton
Judgment Date06 November 2012
Neutral Citation[2012] UKUT 414 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date06 November 2012

[2012] UKUT 414 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr C M G Ockelton, Vice President

Upper Tribunal Judge Hanson

Between
The Secretary of State for the Home Department
Appellant
and
Munira Quraish Sajad Hussain Adamally Shaiqeen Ahmed Jaferi
Respondent
Representation:

For the Appellant: Mr Melvin, Senior Home Office Presenting Officer

For the Respondent: Mr Z Malik instructed by Malik Law Chambers for Mrs Adamally

Mr A Jafar instructed by Lee Valley Solicitors for Mr Jaferi

Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures)

When a removal decision purportedly under s 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave:

(i) the s 47 decision is unlawful, but

(ii) the decision refusing leave is a separate decision, that

(iii) requires determination;

(iv) s 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions into one appeal, but

(v) s 86 of that Act allows and requires the determination to reflect differences in outcome.

DETERMINATION AND REASONS
1

What should a Tribunal Judge do when faced with a single piece of paper on which is both a decision refusing a person further leave to remain and a decision that the person should be removed? That question forms the latest part in a long-running jurisprudential saga. We shall begin by setting out the relevant legislation, and summarising the story so far.

Legislation
2

The relevant provisions are as follows.

In the Immigration Act 1971:

“3C Continuation of leave pending variation decision

  • (1) This section applies if –

    • (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

    • (b) the application for variation is made before the leave expires, and

    • (c) the leave expires without the application for variation having been decided.

  • (2) The leave is extended by virtue of this section during any period when –

    • (a) the application for variation is neither decided nor withdrawn

    • (b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

    • (c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).

  • (3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

  • (4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

  • (5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

  • (6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations –

    • (a) may make provision by reference to receipt of a notice,

    • (b) may provide for a notice to be treated as having been received in specified circumstances,

    • (c) may make different provision for different purposes or circumstances,

    • (d) shall be made by statutory instrument, and

    • (e) shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

Section 3D contains, in the case of a person whose leave has been revoked, provisions parallel to those of section 3C(2)(b) and (c), (3) and (4).

3

The regulations made under s 3C(6) are the Immigration (Continuation of Leave) (Notices) Regulations 2006 (SI 2170/2006). For present purposes they need to be read with the Immigration (Notices) Regulations 2003 (SI 658/2003). They have the effect that, for the purposes of s 3C, an application is decided only when written notice of the decision, including notice of any appeal rights, is given to the person making the application.

4

In the Immigration, Asylum and Nationality Act 2006:

“47. Removal: persons with statutorily extended leave

  • (1) Where a person's leave to enter or remain in the United Kingdom is extended by section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971 (c.77) (extension pending appeal), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends.

  • (2) Directions under this section may impose any requirements of a kind prescribed for the purpose of section 10 of the Immigration and Asylum Act 1999 (c.33) (removal of persons unlawfully in United Kingdom).

….”

5

We do not need to set out s 10 of the Immigration and Asylum Act 1999. It permits directions to be given for the removal of persons unlawfully in the United Kingdom. The only relevant provision for present purposes is that directions can be given for the removal of a person who remains beyond the time limited by his leave.

6

In the Nationality, Immigration and Asylum Act 2002:

“82. Right of appeal: general

  • (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

    • (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 (c.33) (removal of person unlawfully in United Kingdom),

    • (ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave)

85. Matters to be considered

  • (1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

  • (2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84(1) against the decision appealed against.

86. Determination of appeal

  • (1) This section applies on an appeal under section 82(1), 83 or 83A.

  • (2) The Tribunal must determine –

    • (a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and

    • (b) any matter which section 85 requires it to consider.

  • (3) The Tribunal must allow the appeal in so far as it thinks that –

    • (a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

    • (b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

  • (4) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.

  • (5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.

  • (6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).

7

The effect of these provisions for present purposes is as follows. A person who has current leave and applies for a variation (that is to say, extension) of it, has a right of appeal to the First-tier Tribunal under s 82(2)(d) if the application is refused. 1 His existing leave is extended by s 3C of the 1971 Act until his appeal is finally determined; or, if he does not appeal, his leave is extended to the end of the period in which he could, without needing an extension of time, have served a notice of appeal. After the end of the period of extension granted by s 3C, unless an appeal was successful, the leave expires, and the person becomes an overstayer, whose removal can be directed under provisions of s 10(1)(a) of the 1999 Act. That decision also carries a right of appeal, under s 82(2)(g). Following the coming into force of s 47 of the 2006 Act, however, the Secretary of State does not have to wait until the person becomes an overstayer, because that section permits a removal decision to be made during the currency of leave. Such a decision also carries a right of appeal under s 82(2)(ha). The existence of separate rights of appeal confirms, if confirmation were needed, that the decisions are separate decisions. Sections 85 and 86 regulate the Tribunal's process in determining appeals.

The story so far
8

In a number of cases, the courts have considered whether, when making a decision that a person's leave is not to be extended, the Secretary of State should also make any relevant decision relating to the person's removal. Before the coming into force of s 47, the answer to that question would appear to be obvious. As the only relevant power to make a removal decision was that in s 10(1)(a), the power could not be exercised during the continuance of leave under s 3C of the 1971 Act, because until the expiry of that leave, the person was not an overstayer. Thus it would appear impossible to make the removal decision at the same time as refusing further leave, because the effect of s 3C is that the person is not an overstayer until the expiry of a period of time which extends beyond the date of the decision on the variation application.

9

For reasons which have never been entirely clear, it was conceded by Counsel for the Secretary of State in the Court of Appeal in TE (Eritrea) v SSHD [2009]...

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