Patel v (on the application of Patel) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeThe Master of the Rolls,Lord Justice Stanley Burnton,Lady Justice Hallett
Judgment Date01 June 2012
Neutral Citation[2012] EWCA Civ 741
Docket NumberCase No: C5/2012/0204
Date01 June 2012

[2012] EWCA Civ 741

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(The Hon Mr Justice Blake and Upper Tribunal Judge Perkins)

Appeal Nos. IA/15097, 15089 and 15990/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

Lady Justice Hallett (The Vice-President of the Queen's Bench Division)

and

Lord Justice Stanley Burnton

Case No: C5/2012/0204

Between:
(1) Sandeepkumar Manharbhai Patel
Appellants
(2) Hiralben Hitenbhai Patel
(3) Vansh Patel
and
The Secretary of State for the Home Department
Respondent

Zane Malik (instructed by Malik Law Chambers) for the Appellants

Thomas Roe (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 3 April 2012

The Master of the Rolls
1

This is an appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal (Blake J and Judge Perkins) brought by Sandeepkumar Patel, his wife, Hiralben, and their son, Vansh.

The facts and issues

2

Mr Patel and his wife, who were both born in 1984, arrived from India in the United Kingdom on 24 March 2009, on the basis that he was granted leave to enter as working holiday-maker until 6 March 2011, and she was his dependent wife. Their only child, Vansh, was born here in 2010. On 26 February 2011, the appellants applied for further leave to remain in the UK, pursuant to Article 8 of the European Convention on Human Rights ('the Convention'), rule 395C of the Immigration Rules ('rule 395C'), and their particular circumstances. On 30 March 2011, their application was refused by the Secretary of State. Their appeal against that refusal was dismissed by Immigration Judge Brown in the First Tier Tribunal ('FTT') on 14 July 2011. Senior Immigration Judge Waumsley granted the appellants permission to appeal to the Upper Tribunal ('UT'), who dismissed their appeal on 13 December 2011 – [2011] UKUT 00484 (IAC) – but granted them permission to appeal to this court on 4 January 2012.

3

The appellants no longer maintain that there is any merit in the substantive grounds of appeal which they raised before the FTT and the UT: realistically, Mr Malik, who has presented the appeal very well, accepts that there is no basis for challenging the decisions of the UT in relation to those issues. The sole ground of appeal is that the Secretary of State's decision of 30 March 2011, refusing the appellants' application for further leave to remain (which I shall call an 'extension application') was unlawful because it was taken in isolation from any decision to issue a direction to remove them from the UK (which I shall call a 'removal direction'). As Mr Roe says on behalf of the Secretary of State, no decision whether to make a removal direction has yet been taken, as it is hoped that they will go voluntarily.

4

The main issue of principle therefore thrown up by this appeal is whether the appellants are right in their contention that, when refusing an extension application, the Secretary of State is bound to decide, at the same time (or, possibly, very shortly afterwards), whether to make a removal direction. Even if the appellants are right on the main issue, there is a second issue. The Secretary of State contends that they were not entitled to rely before the FTT on the point that the Secretary of State failed to decide whether to make a removal direction, as a ground for challenging the refusal of their extension application, and therefore that ground cannot be raised in this court.

The statutory background: general

5

Section 3(1)(a) of the Immigration Act 1971 contains what may be described as the general rule that, subject to certain exceptions (irrelevant for present purposes), a person who is not a British citizen may not enter the UK 'unless given leave to do so in accordance with the provisions of, or made in under, this Act'. Section 3(1)(b) of the 1971 Act empowers the Secretary of State to grant such leave for a limited or indefinite period, and section 3(3)(a) empowers the Secretary of State to vary a person's leave to remain.

6

Section 10(1)(a) of the Immigration and Asylum Act 1999 provides that 'a person who is not a British citizen may be removed' from the UK 'in accordance with directions given by an immigration officer, if … having only limited leave to enter or remain, he … remains beyond the time limited by the leave'.

7

Sections 81 and 82(1) of the Nationality, Immigration and Asylum Act 2002 permit a person in respect of whom an 'immigration decision' has been made to appeal to the FTT. Section 82(2) of the 2002 Act defines an 'immigration decision'. Three of those definitions are relevant. Para (d) refers to '[a] refusal to vary a person's leave to enter or remain in [the UK], if the result of the refusal is that the person has no leave to enter or remain'. Paras (g) and (ha) refer to 'a decision that a person is to be removed' from the UK, in one case, under section 10 of the 1999 Act, and, in the other, under section 47 of the Immigration, Asylum and Nationality Act 2006.

8

Section 84(1) of the 2002 Act identifies the grounds on which an appeal can be brought against an immigration decision. They include the ground that the decision (a) 'is not in accordance with immigration rules', (c) 'is unlawful under section 6 of the Human Rights Act 1998', or (e) 'is otherwise not in accordance with the law', as well as (f) that the decision-maker should have exercised a discretion differently, and (g) that removal of the appellant 'in consequence of the immigration decision would … be unlawful under section 6' of the 1998 Act.

9

Section 85 of the 2002 Act details matters to be considered by the FTT on an appeal, including, in subsection (4), 'evidence about any matter which it thinks relevant to the substance of the decision'. Section 86(2) of the 2002 Act requires the FTT to determine 'any matter raised as a ground of appeal' and 'any matter which section 85 requires it to consider'. Section 86(3) states that the FTT 'must allow the appeal' if it 'thinks that (a) a decision against which the appeal is brought … was not in accordance with the law (including immigration rules)' or (b) a discretion exercised when the decision was taken 'should have been exercised differently'.

10

Section 3C(2) of the 1971 Act (inserted by the 1999 Act, which replaced a similar provision which had been inserted in 1976) provides that, where an application for variation is made before the leave has expired, leave is effectively to be extended, so long as (a) the application is neither decided nor withdrawn, (b) an appeal could be brought under section 82(1) of the 2002 Act, or (c) 'an appeal under that section against that decision … is pending …'.

11

Section 47 of the 2006 Act provides that, where a person's right to enter or remain is extended by section 3C(2)(b) of the 1971 Act, 'the Secretary of State may decide that the person is to be removed … in accordance with directions to be given by an immigration officer when the leave ends.' Thus, a removal direction can be made under section 10 of the 1999 Act or under section 47 of the 2006 Act.

12

The Immigration Rules, at the relevant time (but no longer) included rules 395C and 395D. Rule 395C provided that, '[b]efore a decision to remove under section 10 [of the 1997 Act] is given, regard will be had to all relevant facts by the Secretary of State'. Rule 395D stated that '[n]o one should be removed under section 10 if his removal would be contrary to the [UK's] obligations under the … Convention.'

13

Section 24(1) of the 1971 Act renders it a criminal offence for a person who is not a British citizen but has leave to remain in the UK, to remain in the UK 'knowingly' 'beyond the time limited by the leave' or to '[fail] to observe a condition of the leave.'

Section 120 of the 2002 Act: 'one stop' appeals

14

Section 120 of the 2002 Act states, by subsection (1), that it applies to a person (a) 'who has made an application to enter or remain' in the UK, or (b) in respect of whom an 'immigration decision' 'has been taken or may be taken'. Subsection (2) of section 120 provides that:

'The Secretary of State or an immigration officer may by notice in writing require the person to state in writing:

'(a) his reasons for wishing to enter or to remain in [the UK],

(b) any grounds on which he should be permitted to enter or to remain in [the UK], and

(c) any grounds on which he should not be removed from or required to leave [the UK].'

15

Section 96(2) of the 2002 Act precludes an appeal against an immigration decision ('the new decision') in respect of a person where

'the Secretary of State or an immigration officer certifies:

(a) that the person received notice under section 120 [in respect of an earlier immigration decision],

(b) that the new decision relates to an application … which relies on a matter that should have been, but has not been raised … in response to that notice, and

(c) that … there is no satisfactory reason for that matter not having been raised … in [such] response.'

16

Subsection (2) of section 85 of the 2002 Act, which it will be recalled deals with appeals to the FTT, states that, '[i]f an appellant under section 82(1) makes a statement under section 120', the FTT must treat any matter raised therein which could be a ground of appeal under section 84(1) as a ground of appeal against the decision under attack. Section 85(3) states that this provision also applies to a section 120 statement made after the appeal in question was commenced.

The respective cases in summary

17

As explained above, there are two issues in this case. The first is raised by the...

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