Ahmadi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Sir Stanley Burnton,Lord Justice Briggs |
| Judgment Date | 09 May 2013 |
| Neutral Citation | [2013] EWCA Civ 512 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2013 |
| Docket Number | Case No: C5/2012/1681 and C5/2012/2275 |
[2013] EWCA Civ 512
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UT JUDGE LANE
[2012] UKUT 00147 (IAC) (AA/08367/2009)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lord Justice Briggs
and
Sir Stanley Burnton
Case No: C5/2012/1681 and C5/2012/2275
David Blundell (instructed by Treasury Solicitors) for the Secretary of State
Zane Malik (instructed by Messrs Malik Law Solicitors) for Mr. Ahmadi
Hearing date: 22 nd April 2013
Introduction
There are two appeals before the Court, one by the Secretary of State who was the Respondent below and the other by Mr. Ahmadi, against the determination dated 25 th April 2012 of the Upper Tribunal, which is reported as Ahmadi (s 47 decision: validity; Sapkota) [2012] UKUT 000147 (IAC).
A Notice of Immigration Decision dated 27 th July 2009 contained both a refusal of Mr. Ahmadi's application for variation of his leave to remain in the UK ("the variation decision") and a decision that he should be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act") ("the removal decision").
The Upper Tribunal dismissed Mr. Ahmadi's appeal. It concluded that while the removal decision was invalid, there was no error of law in the determination dated 21 st November 2009 of the First-tier Tribunal, which had dismissed Mr. Ahmadi's appeal against both the variation decision and a decision to remove him under section 47 of the 2006 Act. I refer to a decision to remove Mr. Ahmadi under section 47 because there was an issue before the First-tier Tribunal as to whether there had in fact been any decision to remove Mr. Ahmadi from the UK. The First-tier Tribunal concluded that there had been such a decision and dismissed Mr. Ahmadi's appeal against it. The existence of the notice dated 27 th July 2009 containing both the variation decision and the removal decision was not disclosed by the Secretary of State until 6 th July 2011.
The Secretary of State appeals against the Upper Tribunal's decision that the removal decision was invalid. On reading Mr. Malik's Skeleton Argument on behalf of Mr. Ahmadi, I had thought that he was pursuing the argument rejected by the Upper Tribunal in paragraph 28 of its determination, that the variation decision was not lawful because it was not accompanied by a lawful removal decision, but in his oral submissions Mr. Malik explained that this was not the basis on which Mr. Ahmadi was appealing against the Upper Tribunal's determination. He accepted that the variation decision was lawful. The challenge to the Upper Tribunal's determination was made on a much more limited basis: having concluded that the removal decision was invalid but the variation decision was valid, the Upper Tribunal should not have simply dismissed Mr. Ahmadi's appeal against the determination of the First-tier Tribunal, it should have dismissed his appeal against the variation decision and allowed his appeal against the removal decision. Mr. Blundell accepted on behalf of the Secretary of State that this would be the appropriate order if the Secretary of State's appeal was dismissed. In these circumstances I need say no more about Mr. Ahmadi's appeal.
Statutory framework
The relevant provisions of section 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 (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 (removal of persons unlawfully in United Kingdom).
(6) In section 83(2) of the Nationality, Immigration and Asylum Act 2002 (right of appeal: general) after paragraph (h) insert –
(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)."
The power to grant leave to enter or remain in the United Kingdom is conferred by section 3 of the Immigration Act 1971 ("the 1971 Act"). The relevant provisions in section 3 are as follows:
" 3 —General provisions for regulation and control
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(3) In the case of a limited leave to enter or remain in the United Kingdom, —
(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, …"
The relevant provisions of sections 3C and 3D of the 1971 Act 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 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).
(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."
3D Continuation of leave following revocation
(1) This section applies if a person's leave to enter or remain in the United Kingdom –
(a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or
(b) is revoked.
(2) The person's leave is extended by virtue of this section during any period when -
(a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or
(b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)."
Section 4(1) of the 1971 Act provides:
" 4 — Administration of control.
(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument."
The relevant provisions of section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act") which makes provision for the removal of certain persons unlawfully in the United Kingdom, are as follows:
" 10 — Removal of certain persons unlawfully in the United Kingdom
(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"
The right of appeal against immigration decisions is conferred by section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), which provides, so far as relevant:
" 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,
(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...
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