R (Daley-Murdock) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Rimer,Lord Justice Sedley |
| Judgment Date | 23 February 2011 |
| Neutral Citation | [2011] EWCA Civ 161 |
| Date | 23 February 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2010/1693/1693(A) |
[2011] EWCA Civ 161
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Mr Justice Wyn Williams
Before: Lord Justice Sedley
Lord Justice Rimer
and
Lord Justice Sullivan
Case No: C4/2010/1693/1693(A)
Mr Ramby De Mello, Mr Abid Mahmood and Mr Tony Muman (instructed by JM Wilson Solicitors) for the Appellant
Mr David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 25 th & 26 th January 2011
Lord Justice Sullivan:
The Issue
We heard this appeal immediately after the conjoined appeals in Mirza and others v Secretary of State for the Home Department [2011] EWCA Civ 159 ("the conjoined appeals"). What distinguishes this appeal from the conjoined appeals is the fact that at the time when she applied in 2008 for leave to remain this Appellant had no leave to remain; her leave to remain had expired in 2002. She was an overstayer. It is common ground that a decision to refuse an application by an overstayer for leave to remain is not an immigration decision, as defined by section 82(2) of "the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act")", against which there is a right of appeal to the Tribunal. A removal decision under section 10 of "the Immigration and Asylum Act 1999 ("the 1999 Act"), is an immigration decision against which there is a right of appeal: section 82(2)(g). The issue in this appeal is whether, as submitted by Mr de Mello on behalf of the Appellant, it was contrary to the policy of the 2002 Act, unreasonable, unfair or otherwise unlawful for the Secretary of State, when refusing the Appellant's application for leave to remain, not at the same time to make a removal decision against which she would have had a right of appeal.
The Facts
The factual history is set out in some detail in the judgment of Wyn Williams J [2010] EWHC 1488 (Admin). In summary, the Appellant, her husband and daughter were granted leave to enter the UK as visitors in September 2001. In due course their leave was extended to 30th July 2002. The family did not leave the UK in 2002 and did not apply for an extension of their leave. The Appellant and her family, including a son born in 2003, became overstayers. Both the Appellant and her husband worked, and their children attended school. On the 8th October 2008 the Appellant applied for leave to remain in the UK, naming her husband and children as her dependants.
Her application was refused by the Respondent on 21st July 2009. The decision notice (four decision notices, for practical purposes in identical terms, were issued in respect of the Appellant, her husband and her two children) was accompanied by a letter dated 21st July 2009 ("the first decision letter") which explained why her application did not meet the terms of policy DP 5/96 and why removal would not breach her, or her family's rights under Article 8 of the European Convention on Human Rights ("ECHR"). The Appellant applied for permission to apply for judicial review of the Respondent's decision. Following the grant of permission, the Respondent issued a new decision letter dated 19th February 2010 ("the second decision letter") correcting the, admittedly, erroneous approach to DP 5/96 in the first decision letter.
The judgment of Wyn Williams J
Wyn Williams J rejected the following submissions made on behalf of the Appellant.
i) The two decision letters were "immigration decisions "for the purposes of section 82(2) of the 2002 Act.
ii) It was unreasonable or unfair for the Respondent not to make an appealable removal decision at the same time as the first and/or the second decision letter.
iii) The Respondent had not been entitled to conclude that the Appellant and her family should not benefit from policy DP 5/96.
Wyn Williams J accepted the Appellant's submission that the Respondent's decision in respect of Article 8 was irrational (para 32 judgment), quashed the first decision letter to that extent, and ordered the Respondent to re-consider the Appellant's Article 8 claim. The Appellant appeals against that part of the order dated 23 rd July 2010 of Wyn Williams J dismissing her claim for judicial review in all other respects. The submission referred to in 4 (i) (above) is no longer pursued, permission to appeal having been refused in respect of that issue. In this appeal Mr de Mello challenges the judge's rejection of submissions 4(ii) and 4(iii) (above). I will deal with these submissions in turn.
Failure to issue a removal decision
In the conjoined appeals we decided that in the case of those appellants who do have a right of appeal against a decision to refuse to vary their leave to remain a generalised practice or policy of separating that decision from a decision as to whether to remove them is contrary to the policy and objects of the legislation, and that while there may be cases in which segregation of the two decisions may be justified, no such justification had been shown in the five conjoined appeals. Does the fact that this Appellant was an overstayer lead to a different conclusion?
The short answer to Mr de Mello's submission that failure to make a removal decision at the same time as a decision to refuse an overstayer's application for leave to remain is contrary to the policy and objects of the 2002 Act (see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, per Lord Reid at p 1030B-D) is that it would be contrary to the policy and objects of the 2002 Act to impose an obligation on the Secretary of State when refusing an overstayer's application for leave to remain to make at the same time an appealable refusal decision so as to confer a right of appeal. It would be contrary to the policy and objects of the Act because the list of appealable immigration decisions in section 82 (2) makes it clear that Parliament did not intend that overstayers, unlike those who are lawfully in the UK with leave, should have a right of appeal against a refusal of leave to remain.
It is one thing to say that if there is a right of appeal under the 2002 Act, the policy of the Act is that all outstanding issues should be dealt with at that appeal; it is quite another to say that where there is no right of appeal a decision must be made so as to confer such a right. The statutory scheme distinguishes between those who are in the UK lawfully and those who are overstayers in other respects. An overstayer who is given a removal decision may not appeal against that decision while he is in the UK, unless he has made an asylum claim or a human rights claim while in the UK, unlike a person who is in the UK with leave, who may appeal while in the UK against a refusal to vary his leave if the result of that refusal is that he has no leave to remain:...
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