Ahmadi v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] UKUT 147 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 02 May 2012 |
[2012] UKUT 147 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Peter Lane
For the Appellant: Mr Z. Malik, Counsel, instructed by Malik Law Chambers Solicitors
For the Respondent: Mr P. Deller, Senior Home Office Presenting Officer
Ahmadi (s. 47 decision: validity; Sapkota)
(1) A removal decision under s. 47 of the Immigration, Asylum and Nationality Act 2006 cannot be made in respect of a person until written notice of the decision to refuse to vary that person's leave to remain has been given to that person. The current practice of the Secretary of State to incorporate both decisions in a single notice is accordingly incompatible with the relevant legislation. As a result, the present usefulness of s. 47 is highly questionable.
(2) The fact that, as the legislation stands, the Secretary of State cannot make a removal decision at the same time as a decision refusing to vary leave, or (for practical purposes) before a person's s. 3C leave begins, underscores the correctness of the Tribunal's determination in Patel (consideration of Sapkota – unfairness) [2011] UKUT 484 (IAC) , that what is likely to be decisive in cases of this kind is whether the Secretary of State has, in fact, addressed paragraph 395C removal factors, when taking the variation decision.
The appellant, a citizen of Afghanistan born on 1 January 1990, arrived in the United Kingdom on 27 February 2007 and claimed asylum two days later. That claim was refused by the respondent who, nevertheless, granted the appellant discretionary leave, because the appellant was at that time a minor. On 10 June 2009, the appellant applied for a variation of that leave but the application was refused by the respondent on 15 July 2009.
The appellant appealed to the Asylum and Immigration Tribunal. His appeal was heard at Hatton Cross on 19 November 2009 by an Immigration Judge, who dismissed it. The appellant was found not to be a credible witness. The judge did not believe the appellant's account of having fled Afghanistan and concluded that it would not be a breach of the United Kingdom's responsibilities under the Refugee Convention, to return the appellant to Afghanistan. By the same token, the judge found that it would not be a breach of Article 3 of the ECHR to return the appellant who, furthermore, was found not to be entitled to the grant of humanitarian protection. None of those findings is challenged by the appellant.
In paragraph 44 of the determination, the judge addressed Article 8 of the ECHR. He found that the appellant had formed a private life in the United Kingdom, where the appellant had taken various educational courses. The judge concluded, however, that any interference with the appellant's Article 8 rights, as a result of his removal to Afghanistan, would be proportionate to the legitimate public end sought to be achieved. The Article 8 finding was not appealed by the appellant.
The final matter dealt with by the judge was paragraph 395C of the Immigration Rules. That paragraph provided as follows:-
“ 395C. Before a decision to remove under section 10 [of the Immigration and Asylum Act 1999] is given, regard will be had to all the relevant factors known to the Secretary of State, including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment records;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.”
In paragraph 46 of the determination, the judge noted that the respondent, in the refusal letter addressed to the appellant, had considered the factors set out in paragraph 395C. The judge considered that the Secretary of State had “exercised her discretion correctly” under paragraph 395C, before making his own finding that there were “no factors in this case which militate against removal”.
Before the Immigration Judge, Mr Malik had submitted on behalf of the appellant that, although paragraph 395C had been considered by the respondent, the immigration decision to refuse to vary leave to remain was not in accordance with the law, because it had not in fact been accompanied or closely followed by a decision, that the appellant should be removed from the United Kingdom by way of removal directions. In making that submission, Mr Malik relied on the judgments of the Court of Appeal in TE (Eritrea) [2009] EWCA Civ 174. The judge was not persuaded by that submission; but permission to appeal to the Upper Tribunal was granted on the basis that the matter was properly arguable.
It was, thus, the central aspect of the appellant's case before the Upper Tribunal, that the respondent had not, in fact, made a removal decision in respect of him. That was the apparent understanding of the parties, when the appeal came before the Upper Tribunal last year. However, shortly after that Tribunal had made its determination, the respondent disclosed a copy of a letter of 6 July 2011, comprising a combined immigration decision entitled “Refusal to vary leave to enter or remain and decision to remove”, which was dated 27 July 2009, and which had not been included in the respondent's bundle. The determination of the Upper Tribunal was, accordingly, set aside under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 on 14 July 2011, with the result that the appeal came before me on 7 March 2012.
On that day it was common ground that the document dated 27 July 2009 comprised both a decision to refuse to vary the appellant's leave to remain in the United Kingdom, and also an actual or purported decision under s.47 of the Immigration, Asylum and Nationality Act 2006, that the appellant should be removed in accordance with directions, if and when his leave ended. The validity of the s.47 decision is in issue between the parties; and, if the s. 47 decision is invalid, the issue arises as to whether the variation decision is in accordance with the law. In a skeleton argument, served shortly before the 7 March hearing, Mr Malik submitted that the respondent's apparent practice of making “combined” decisions of these kinds is unlawful, since on a true construction of the relevant legislation, the decision to refuse to vary leave has to have been both made and served on the person concerned, before a decision can be taken under s.47.
The relevant provisions of s.47 are as follows:
“ 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).”
The relevant provisions of s.3C of the Immigration Act 1971 are as follows:-
“ 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 that 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).
…
(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.”
Although neither party drew my attention to them, the Immigration (Continuation of Leave) (Notices) Regulations 2006 are plainly relevant, being made pursuant to s.3(C)(6). Regulation 2 provides as follows:-
“ 2. Decision on an application for variation of leave
For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is decided –
(a) when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002; or where no such notice is required,
(b) when notice of the decision has been given in accordance with section 4(1) of the Immigration Act...
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