Castro (Removals: S.47 (as Amended))
| Jurisdiction | UK Non-devolved |
| Judge | C M G OCKELTON |
| Judgment Date | 12 May 2014 |
| Neutral Citation | [2014] UKUT 234 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 May 2014 |
[2014] UKUT 234 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Kopieczek
For the Appellants: Mr Z Malik, instructed by Malik Law Chambers
For the Respondent: Mr D Blundell, instructed by the Treasury Solicitor
Castro (Removals: s.47 (as amended))
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1. In s.47 of the 2006 Act as amended by s.51 of the 2013 Act, sub-paragraphs (i) and (ii) of subsection (1A)(a) refer to the application, not the decision.
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2. A decision reported in the Notice of Decision in the form “the Secretary of State has decided that you should be removed” is a decision of which notice under s.47 (as amended) may be given.
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3. The amended s.47 is not drafted with reference to s.3C of the 1971 Act and is applicable where the decision refusing leave is made before the original leave expires, as well as where s.3C extends the applicant's leave.
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4. When an applicant has put forward a comprehensive case for extension of leave and the application has been refused, there need be no more reasons for the removal decision than those already expressed as motivating the refusal.
When a person who has immigration leave (as distinct from a person whose leave has expired) makes an application to the Secretary of State for a variation of his leave, then, if the leave expires without the application for variation having been decided, s.3C of the Immigration Act 1971 extends the leave. The extension is for three potentially successive periods. The first is a period until the application for variation is decided (or earlier withdrawn): this is the effect of s.3C(2)(a). The second period extends the leave after a negative decision during the period of time in which an appeal could be brought, if the subject of the decision has a right of appeal from within the United Kingdom (ignoring any possibility of an appeal out of time): s.3C(2)(b). The third period applies if an appeal is brought by the appellant from within the United Kingdom and extends while the appeal is pending: s.3C(2)(c).
If the Secretary of State's decision on the application is indeed negative, it follows that the leave will expire at the end of the last of the applicable periods, following which, if the applicant remains in the United Kingdom, he will be remaining without leave. He ought to depart; and, because he is remaining without leave, he is amenable to removal under s.10 of the Immigration and Asylum Act 1999. The decision to remove a person under s.10 is itself an “immigration decision” within the meaning of s.82(2) of the Nationality, Immigration and Asylum Act 2002, and in principle carries a right of appeal. Thus, the decision to refuse leave, albeit often appealable, may not be the end of the matter: if a person is to be removed a further appealable decision will be necessary. And, because of the effect of s.3C, a s.10 decision cannot be given at the same time as the refusal of the variation, because at that time s.3C operates to prevent a person having no leave.
Section 47 of the Nationality, Immigration and Asylum Act 2006 was introduced in order to attempt to make decision-making in this area more effective. It enabled a decision to remove the person to be made during his s.3C leave; but the terms of the section expressly permitted such a decision to be made only during the period specified by s.3C(2)(b). That is to say, the period when the new type of removal decision could be made began on the expiry of the s.3C(2)(a) period and ended when the time allowed for bringing an appeal ended, or on the earlier date on which a person actually gave notice of appeal. But, as the Tribunal decided in Ahmadi v SSHD [2012] UKUT 00147 (IAC), endorsed on appeal [2013] EWCA (Civ) 512, the notice of the s.47 decision could not be given at the same time as the notice of the variation, because the period of leave granted by s.3C(2)(a) did not end until the individual had notice of the decision, so that a purported notice of removal made contemporaneously with the variation decision would be made during the s.3C(2)(a) period, rather than the s.3C(2)(b) period. For that reason, a very large number of purported s.47 decisions were invalid. In Adamally & Jaferi v SSHD [2012] UKUT 00414 (IAC) the Tribunal decided that those decisions were essentially separate, and that the Tribunal should treat the s.47 decision as unlawful but deal on the merits with any appeal against the refusal of variation.
Parliament responded to the decision in Ahmadi in s.51 of the Crime and Courts Act 2013. When it took effect on 8 May 2013 s.51 replaced s.47(1) of the 2006 Act with the following:
“(1) Where the Secretary of State gives written notice of a pre-removal decision to the person affected, the Secretary of State may –
(a) in the document containing that notice,
(b) in a document enclosed in the same envelope as that document,
(c) otherwise on the occasion when that notice is given to the person, or
(d) at any time after that occasion but before an appeal against the pre-removal decision is brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002,
also give the person written notice that the person is to be removed from the United Kingdom under this section in accordance with directions given by an immigration officer if and when the person's leave to enter or remain in the United Kingdom expires.
(1A) In subsection (1) “pre-removal decision” means –
(a) a decision on an application –
(i) for variation of limited leave to enter or remain in the United Kingdom, and
(ii) made before the leave expires,
(b) a decision to revoke a person's leave to enter or remain in the United Kingdom, or
(c) a decision to vary a persons leave to enter or remain in the United Kingdom where the variation will result in the person having no leave to enter or remain in the United Kingdom.”
In the present case, the appellants, who are husband and wife and nationals of the Philippines, arrived in the United Kingdom separately, but both had leave. Before their leave expired they sought a variation, extending it so that the first appellant, Mrs Castro, could remain in the United Kingdom and work, her husband, Mr Castro, remaining as her dependant, but also hoping to work. They made their application on the basis of Article 8 of the European Convention on Human Rights and Appendix FM to the Statement of Changes in Immigration Rules, HC 395. They claimed that they had been in the United Kingdom for a sufficient length of time to make their removal disproportionate.
On 21 May 2013 the Secretary of State refused those applications. The appellants were served with notices headed Refusal to Vary Leave to Remain and Decision to Remove. The operative part of the notices read as follows:
“Decision to Refuse to Vary Leave to Enter or Remain
Malik Law Chambers Solicitors applied on your behalf on 06 March 2013 for variation of your leave to remain. That...
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