Ahmadi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Date | 2014 |
| Year | 2014 |
| Court | Court of Appeal (Civil Division) |
Immigration - Limited leave to remain - Removal - Secretary of State refusing application to vary leave to remain and making removal direction in combined decision letter - Whether decision on application for variation made when notice of decision given - Whether Secretary of State empowered to make removal decision at same time as decision refusing to vary leave - Whether removal decision valid -
The applicant applied to the Secretary of State for a variation of his limited leave to remain in the United Kingdom. The Secretary of State issued a single notice of immigration decision which contained both a refusal to vary the applicant’s leave (“the variation decision”) and a decision under section 47 of the Immigration, Asylum and Nationality Act 2006 that the applicant was to be removed once his leave to remain had expired (“the removal decision”). Section 47 of the 2006 Act empowered the Secretary of State to make removal directions where a person’s leave to enter or remain was extended by virtue of section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971 pending a decision on an appeal against a variation decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002. The Asylum and Immigration Tribunal dismissed the applicant’s appeal against both decisions. The Upper Tribunal dismissed the applicant’s further appeal, holding that the variation decision was lawful, but concluding that the removal decision was invalid on the grounds that a removal decision could not be made at the same time as a variation decision. The applicant appealed against the dismissal of his appeal and the Secretary of State appealed against the conclusion that the removal decision was invalid.
On the appeals—
Held, dismissing the Secretary of State’s appeal but allowing the applicant’s appeal in part, that it was clear from section 3C(6) of the Immigration Act 1971 and regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006 that a decision on an application to vary leave to enter or remain was not made until written notice of the decision had been given in accordance with the Immigration (Notices) Regulations 2003; that until after a variation decision had been made there could be no appeal against it under section 82(1) of the Nationality, Immigration and Asylum Act 2002, no extension of leave pursuant to section 3C(2)(b) or 3D(2)(a) of the 1971 Act and consequently no exercise of the Secretary of State’s power under section 47 of the Immigration, Asylum and Nationality Act 2006 to decide that a person was to be removed from the United Kingdom on the expiry of his leave; that, therefore, the Secretary of State could not make a decision under section 47 of the 2006 Act that a person was to be removed from the United Kingdom on the expiry of his leave to enter or remain at the same time as making a decision on that person’s application for a variation of his leave; and that, accordingly, the Upper Tribunal had been right to find that the Secretary of State’s removal decision was invalid and an order would be substituted allowing the applicant’s appeal against the removal decision (post, paras 22–25, 27–29, 31, 32, 33, 34).
The following cases are referred to in the judgment of Sullivan LJ:
Patel v Secretary of State for the Home Department
Pepper v Hart [
R v Yeovil Borough Council, Ex p Trustees of Elim Pentecostal Church, Yeovil (
R (Hashmi) v Secretary of State for the Home Department
Rafiq v Secretary of State for the Home Department [
The following additional cases were cited in argument:
Adamally (Section 47 Removal Decisions: Tribunal Procedures), In re
Alam v Secretary of State for the Home Department
Attorney General’s Reference (No 5 of 2002)
Berkeley v Secretary of State for the Environment [
Gill v Donald Humberstone & Co Ltd [
Halki Shipping Corpn v Sopex Oils Ltd [
Hanlon v Law Society [
JM v Secretary of State for the Home Department
Lamichhane v Secretary of State for the Home Department
Padfield v Minister of Agriculture, Fisheries and Food [
Patel v Secretary of State for the Home Department
R (Edison First Power Ltd) v Central Valuation Officer
R (Mirza) v Secretary of State for the Home Department
SA (Pakistan) v Secretary of State for the Home Department
Sapkota v Secretary of State for the Home Department
Shannon Realties Ltd v Ville De St Michel [
TE (Eritrea) v Secretary of State for the Home Department
Walton v Scottish Ministers
No additional cases were referred to in the skeleton arguments.
APPEAL from the Upper Tribunal (Immigration and Asylum Chamber)
By a notice of immigration decision dated 27 July 2009 the Secretary of State for the Home Department refused an application by the applicant, Javad Ahmadi, for variation of his leave to remain in the United Kingdom and decided that he should be removed from the UK by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006. On 21 November 2009, the Asylum and Immigration Tribunal dismissed the applicant’s appeal against the Secretary of State’s decisions. On 12 March 2010 permission to appeal was granted by Judge Lane.
The Upper Tribunal (Immigration and Asylum Chamber) initially allowed the applicant’s appeal by determination issued on 26 May 2011. Shortly after that decision, the Secretary of State disclosed by letter of 6 July 2011 a copy of the notice of 27 July 2009 comprising a combined immigration decision entitled “refusal to vary leave to enter or remain and decision to remove” which had not been included in her original appeal bundle. On 14 July 2011 the Upper Tribunal set aside its decision under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698). The matter came back for rehearing before Judge Lane on 7 March 2012. By a determination promulgated on 25 April 2012, the Upper Tribunal (Immigration and Asylum Chamber) (Judge Peter Lane) [2012] UKUT 147 (IAC); [2012] Imm AR 875 dismissed the appeal on the ground that while the removal decision was invalid, there was no error of law in the determination of the Asylum and Immigration Tribunal (which the Upper Tribunal treated as if it was an appeal from the First-tier Tribunal).
By an appellant’s notice filed on 4 July 2012 and pursuant to permission of the Court of Appeal (Maurice Kay LJ) granted on 11 September 2012 the Secretary of State appealed on the grounds that (1) the Upper Tribunal had erred in construing section 47 in light of the Immigration (Continuation of Leave) (Notices) Regulations 2006; (2) if the 2006 Regulations were relevant, the Upper Tribunal had erred in adopting an interpretation which meant that Parliament in enacting section 47 had legislated in vain; (3) the Upper Tribunal’s construction of section 47 was wrong as it defeated the statutory purpose and intent of Parliament.
By an appellant’s notice filed on 4 September 2012 and pursuant to permission of the Court of Appeal (Maurice Kay LJ) granted on 25 February 2013 the applicant appealed on the ground that the Upper Tribunal’s decision was materially wrong in law as it was not open to it to dismiss his appeal after accepting his argument as to the ambit of section 47 of the 2006 Act.
The facts are stated in the judgment of Sullivan LJ.
Zane Malik (instructed by
David Blundell (instructed by
The court took time for consideration.
9 May 2013. The following judgments were handed down.
SULLIVAN LJ
Introduction1 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 April 2012 of the Upper Tribunal, which is reported as Ahmadi (Section 47 Decision: Validity: Sapkota) [2012] Imm AR 875.
2 A notice of immigration decision dated 27 July 2009 contained both a refusal of Mr Ahmadi’s application for variation of his leave to remain in the United...
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