ET (Eritrea) v Secretary of state for the Home Department

Hearing date: Thursday 15 January 2009

Lord Justice Sedley :

The appellant is a young Eritrean woman who has been here since January 2003. She sought asylum, but this was refused and her appeal against the refusal was dismissed. However, because she was still a minor, she was given discretionary leave to remain until 30 March 2005, the eve of her 18 ^th birthday. Some three weeks before her leave expired she applied for an extension which, two years later, the Home Secretary refused.

The formal notice of refusal to vary leave, dated 3 July 2007, explained that there was a right of appeal on grounds which included any incompatibility of removal with the appellant's ECHR rights. It also explained that all grounds for being allowed to remain or for not being removed must be advanced on the appeal, but that any grounds already advanced did not need to be repeated. And it spelt out that if there was no appeal, or if any appeal failed, “you will be removed to Eritrea”. The accompanying letter, of the same date, gave reasons for refusing humanitarian protection and asserted that while family life was not engaged, any interference with the appellant's private life would be justified.

The appellant appealed against the decision. The appeal came before IJ Thornton, who dismissed it. On a directed reconsideration SIJ Taylor found that the determination contained no material error of law.

With permission granted by Hooper LJ, it is submitted to this court by Ms Shazia Khan, in an impressive argument on the appellant's behalf, that the immigration judge erred materially in overlooking the Home Secretary's failure to address §395C of the Immigration Rules, and that both she and, on reconsideration, the senior immigration judge compounded the omission.

The reason why the oversight is said to be material is this. S.10(1)(a) of the Immigration and Asylum Act 1999 gives the Home Secretary power to remove an overstayer from the United Kingdom. But by §395C of the Immigration Rules:

“Before a decision to remove under section 10 is given, regard will be had to all the relevant factors …”

By §395D removal is prohibited if it would violate Convention rights. It follows, in the Home Secretary's submission, that unless and until there has been a refusal to vary and any appeal against the refusal has been dismissed, a person in the position of the appellant is not an overstayer, with the result that the Home Secretary cannot yet consider removing her and that the appellant cannot, or not yet, rely on §395C (or presumably §395D) to resist removal.

On reconsideration, SIJ Taylor held that the material factors

“are only to be considered under paragraph 395C in the context of a decision to remove under section 10. It cannot therefore be open to the Appellant to argue that it is not in accordance with the law for the Secretary of State not to consider those factors in relation to a variation appeal. Whether the effects of the Rules are rational or irrational is not a matter for me.”

This puts with precision the issue which we now have to decide.

The distance between the parties is at first sight nevertheless minimal, because the Home Secretary accepts that once the appellant becomes an overstayer she cannot be removed if, on due consideration and if need be on appeal, it is found that removal would be wrong or would violate her Convention rights. But the real difference is considerable, because to remain here as an overstayer is a criminal offence by virtue of s.24(1)(b) of the Immigration Act 1971. An overstayer also loses both the right to work and entitlement to mainstream state benefits, and anyone who employs him or her commits a criminal offence. And by §320(7B) of the Rules entry clearance is to be refused to former overstayers who have not left voluntarily within 28 days.

Many foreign nationals whose leave has expired may well choose to remain here for as long as it takes to exhaust, first, their rights of appeal against the refusal to vary their leave and then the giving of directions for their removal. The appellant, however, does not wish to be placed in a position of near-outlawry in order to do this. She argues accordingly that all the issues arising or potentially arising in her case should have been addressed together. It might have been thought that they had been, since her art. 8 rights were fully canvassed both with the Home Office and on appeal, which on one view is the entire purpose of §395C read with §395D. But it is common ground between counsel that §395C is capable of operating in the individual's favour even where §395D does not, and we have approached this appeal accordingly.

Granting permission to appeal, Hooper LJ wrote:

“It seems strange that the respondent is content for persons in the appellant's position to be able to have 'another bite at the cherry' rather than sorting out all the issues at this stage. That said, there may be very good reasons why the respondent adopts this position.”

The skeleton argument of Steven Kovats for the Home Secretary does not respond to this implied invitation. Indeed it points out that, since 1 April 2008, s.47 of the Immigration, Asylum and Nationality Act 2006 has allowed the Home Secretary to combine her decision about removal with her refusal to vary an applicant's leave to enter or remain, although we are told that the necessary administrative arrangements have not been put in place to make use of this power. I will return briefly to this at the end of my judgment.

For the appellant it is submitted by Ms Khan that a two-stage process with a dangerous gap is not a necessary product even of the present provisions. There is nothing to stop the Home Secretary, and in due course the AIT, from dealing with variation and removal together. If so, then, given the consequences for the individual of separating the two stages, it is both unjust and irrational not to deal with them in immediate sequence.

Mr Kovats accepts that there is nothing in the pre-April 2008 arrangements to prevent the Home Secretary from doing this (so that the new arrangements simply spell out what was already the case). But he submits that it is not necessarily unfair or unreasonable to separate the two stages. So far as the present appellant is concerned, her desire to have the issues compendiously dealt with has been respected, he submits, by a Home Office undertaking that any adverse decision under §395C will attract a right of appeal.

This court was faced with an analogous question in JM v Home Secretary [2006] EWCA Civ 1402. There a Liberian asylum-seeker had been refused a variation of the six months' leave on which he had entered the UK and had appealed on both refugee and human rights grounds. At the hearing, however, he sought to reserve the latter on the ground that, unless and until removal directions were given, he had no need to rely on Convention rights. The adjudicator rejected this contention and dealt with all the issues, finding against the appellant. Before the AIT the appellant sought to reverse his position but the AIT, differing from the adjudicator, held that the human rights claim was not justiciable. When the case came before this court the Home Secretary made common cause with the appellant, submitting that the adjudicator had been right and the AIT wrong. Because the parties were now, as Laws LJ put it, singing in unison, counsel for the Attorney-General was invited to introduce a note of discord into the argument, but the conclusion of the court was that the parties were right and the AIT wrong.

Mr Kovats submits that the decision in JM affords no sure guidance in the present case because it was based on different statutory provisions. These are to be found in s. 82(1), which includes in the term “immigration decision” both a refusal to vary and a decision to remove, and s.84(1), which enables an immigration decision to be attacked for breach of the appellant's Convention rights. It is perfectly true that the material provisions are not the same, but that does not mean that the reasoning which led the court to conclude that variation and removal should be dealt with together has no bearing on the present case.

Thus Laws LJ, giving the single reasoned judgment, said at §16–18:

“16. There are other statutory provisions to which I will refer in addressing counsel's submissions. Evidently the court has to decide whether an “immigration decision” consisting in a refusal to vary leave, which is appealed pursuant to section 82(2)(d), is an immigration decision “in consequence of which” the appellant's removal would be unlawful under the Human Rights Act section 6 as being incompatible with the appellant's Convention rights. The answer to the question must, I think, depend on the sense Parliament intended to give to the phrase “in consequence of”. In a case where variation of leave has been refused, removal is not an immediate consequence. Removal directions must separately be given if the appellant is to be removed under the present statutory regime. Such...