B.m. For Judicial Review Of A Decision Of The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Hardie,Lady Paton |
| Judgment Date | 27 April 2011 |
| Neutral Citation | [2011] CSIH 32 |
| Court | Court of Session |
| Published date | 27 April 2011 |
| Docket Number | P1988/08 |
| Date | 27 April 2011 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Hardie Lord Bracadale | [2011] CSIH 32 P1988/08 OPINION OF THE COURT delivered by LORD BRACADALE in Reclaiming Motion by B Z M Petitioner and Reclaimer; For Judicial Review of a decision of THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Respondent: Lindsay; Office of the Solicitor to the Advocate General
27 April 2011
Introduction
[1] The petitioner and reclaimer, who is a citizen of Malawi, came to the United Kingdom on 5 December 2003 and was granted leave to enter for six months. On 18 May 2004, prior to its expiry, the petitioner made an application to extend the leave to enter. By virtue of section 3C of the Immigration Act 1971 his leave was extended pending the determination of the application. In the event, the application has never been decided.
[2] A condition of leave to enter was that the petitioner would not take up employment. From 2004 onwards he was in breach of that condition by undertaking employment as a care assistant and on 23 November 2008 he was served with a notice of an immigration decision to remove him under Section 10 of the Immigration and Asylum Act 1999 ("section 10"). Removal was set for 2 December 2008. The Immigration Factual Summary attached to the Removal Directions was in the following terms:
"You arrived in the United Kingdom as a visitor on 5 December 2003 and [were] granted leave to enter for six months. You submitted an application for further leave to remain as a student on 18 May 2004. You have not attempted to contact the Home Office since submitting the above application. You admitted under caution that you had worked in the United Kingdom as a care assistant since 2004. You came to light on 24 November 2008 when you were arrested during a UKBA enforcement visit to Flat 11, 16 Heron Street, Glasgow. You were served with illegal entry papers on 24 November 2008 and placed into Sole Immigration Service Detention on that date. You are currently detained at Dungavel Immigration Removal Centre pending Removal to Malawi. Removal Directions are set for 2/12/2008."
There was no dispute that the reclaimer had been working in breach of the condition of his leave to enter. Accordingly, as at the end of 2008, his position was that his application for variation of leave had not been decided, but he was subject to a notice of removal under section 10. In terms of sections 82 and 92 of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") refusal of an application for variation of leave is an immigration decision which is subject to a right of appeal to the tribunal while the person is in the United Kingdom (an in-country right of appeal) while a notice of removal under section 10 is an immigration decision which is not subject to appeal to the tribunal while the person is in the United Kingdom; his right of appeal is exercisable only after he has been removed (an out-of-country right of appeal).
[3] The reclaimer sought judicial review of the notice of the immigration decision to remove him. The principal issue before the Lord Ordinary was whether, in the circumstances in which he was placed, the petitioner had an in-country right of appeal or whether his right of appeal could be exercised only after he had been removed from the United Kingdom. The petitioner's contention that he did have an in-country right of appeal was rejected by the Lord Ordinary and it has not been renewed before us.
[4] The second argument advanced before the Lord Ordinary was that, on the assumption that the petitioner had no right to an in-country right of appeal, the respondent was under a duty to give reasons for choosing to proceed by way of removal of the reclaimer under Section 10, rather than deciding the application for variation of leave. The respondent had failed to give reasons for her choice to proceed in that way. The Lord Ordinary's rejection of this argument was the subject of the reclaiming motion.
[5] The Lord Ordinary dismissed the argument on three grounds. First, no decision as between routes was involved and therefore there was no need to give reasons. Secondly, if there was such a decision there was no need to give reasons; the reclaimer could easily work out what the reasons were. Thirdly, in the event that reasons were required adequate reasons were given.
Relevant statutory provisions and policy
Immigration Act 1971
[6] Section 3C of the Immigration Act 1971 provides:
"(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 ..."
Immigration and Asylum Act 1999
[7] Section 10 provides:
"(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."
Policy
[8] The Immigration Directorates' Instructions set out the respondent's policies in relation to the use of section 10 and the curtailment of leave provisions. Chapter 9, section 5, paragraph 2.2 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) 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."
Immigration Rules
[9] When making a decision to remove a person under Section 10 the Secretary of State requires to have regard to the factors included in Rule 395C of the Immigration Rules which stipulates:
"Before a decision to remove under Section 10 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 the case of family members, the factors listed in 365 to 368 must also be taken into account."
Appeals to the tribunal: Nationality Immigration and Asylum Act 2002
[10] Provision as to rights of appeal against immigration decisions are contained in Section 82 of the 2002 Act. The relevant provisions for present purposes are Section 82(1) and (2)(d),(e) and (g):
"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,
...
(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."
Section 92 of the 2002 Act provides for the place from which such a right of appeal can be exercised. So far as relevant for present purposes Section 92 provides:
"(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 Section 82(2)(c), (d), (e), (f), (h), (ha) and (j)."
Accordingly, a person such as the petitioner who was subject to removal under section 10 had only an out-of-country right of appeal.
Reclaimer's submissions
[11] The contention of the reclaimer as petitioner before the Lord Ordinary was that the Secretary of State could, instead of using Section 10, have decided to refuse the outstanding application for extension of leave which would have given the reclaimer a right of appeal within the United Kingdom. There must have been a decision as to which route to choose and this was a decision for which reasons ought to have been given. A further refinement of the argument was developed before us. Miss Carmichael, Q.C., on behalf of the reclaimer, submitted that there were, in fact, three options available to the respondent: option 1 was removal under Section 10 which would require the respondent to have regard to the factors in Rule 395C but would deny the reclaimer an in-country right of appeal. Option 2 was to refuse the application for extension which would give rise to a within UK right of appeal but not access to the factors in Rule 395C. If, thereafter, the Secretary of State decided to remove there would be an out-of-country right of appeal. Option 3 was to consider the two issues at the same time which would give rise to an in-country right of appeal and allow the factors in Rule 395C to be taken into account. Under reference to TE (Eritrea) v Secretary of State for the Home...
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