R (Mirza and Others) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Laws,Lord Justice Sedley,Lord Justice Patten,Lord Justice Rimer,Lord Justice Sullivan
Judgment Date23 February 2011
Neutral Citation[2010] EWCA Civ 210,[2011] EWCA Civ 159
Docket NumberCase No: C5/2009/1603 C5/2009/1693 C5/2009/2083 C5/2009/2298 [AIT No. IA/01819/2009],Case Nos: C4/2010/2034, C4/2010/2035, IA/11218/2008
Date23 February 2011

[2010] EWCA Civ 210

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL

Before: Lord Justice Laws

Lord Justice Sedley

and

Lord Justice Patten

Case No: C5/2009/1603

C5/2009/1848

C5/2009/1693

C5/2009/2083

C5/2009/2298

[AIT No. IA/01819/2009]

Between
(1) SA (Pakistan)
(2) PB (India)
(3) NB (Pakistan)
(4) DP (India
(5) AM (Pakistan
Appellants
and
Secretary of State for the Home Department
Respondent

Mr Zane Malik (instructed by Messrs Malik Law) appeared on behalf of the Appellant.

Mr Charles Bourne (instructed by Treasury Sols) appeared on behalf of the Respondent.

Lord Justice Laws

Lord Justice Laws:

1

There are before the court linked appeals against the decision of the Asylum and Immigration Tribunal in which Sir Richard Buxton granted permission to appeal anticipating that a single issue would be ventilated in this court, namely whether the law requires that, where the Secretary of State refused an application by an immigrant for a variation of his leave to enter or remain in the United Kingdom, he (the Secretary of State) should at the same time issue removal directions under section 10 of the Immigration and Asylum Act 1999, or at least that he should do so unless there is some particular justification for taking another course. The importance of the issue is that, if the immigrant is faced only with a refusal to vary his leave, it may be that he cannot, on appeal to the Asylum and Immigration Tribunal, urge that he should nevertheless be allowed to remain in the United Kingdom on compassionate or human rights grounds because no question of his removal is at that stage live. Arguments based on compassionate or human rights grounds would only become live on an appeal against removal directions. If no such directions are given before his appeal rights against a refusal to vary leave have become exhausted, then his remaining in the United Kingdom after that date, so as to make his case on compassionate or human rights grounds when the directions are made, will or may be at the price of his committing a criminal offence under the immigration legislation: namely that of overstaying his leave; and he would be subject also, as would any employer of his, to other legal sanctions.

2

For reasons which I will explain in a moment, we have concluded that we do not possess the jurisdiction to entertain this point on these appeals and we propose therefore to dismiss the appeals, but it is necessary to explain how that conclusion is arrived at.

3

We need not set out full citations of all the relevant legislation, some of which is relatively intricate. I may summarise it in this way. The right of appeal being exercised here against a refusal to extend leave is given by the Nationality Immigration and Asylum Act 2002 section 82(1) and (2)(d). The right is exercisable from within the United Kingdom pursuant to section 92(2). Different provisions apply, however, in the case of the appellant. NB, who was not in fact the subject of a decision to refuse an extension of leave. It will make for clarity if I deal with his case separately. By force of section 3C of the Immigration Act 1971 a person who has applied for a variation of his limited leave during the currency of that leave enjoys an extension of the leave during the period within which an “in time” appeal may be brought or while any appeal is pending. Section 10 of the 1999 Act empowers the Secretary of State, through an immigration officer, to issue removal directions in the case of a person who remains in the United Kingdom beyond the time limited by his leave. By section 47 of the Immigration Asylum and Nationality Act 2006 the Secretary of State may also decide, during the currency of a person's leave extended by s.3C of the 1971 Act, that that person should be removed by directions given under section 10 in due course when that leave expires. Such a section 47 decision is appealable under section 82 of the 2002 Act.

4

I should also cite, for it is relevant to an argument about the court's jurisdiction which we must consider, section 84(1)(e) of the 2002 Act. It stipulates that one of the available grounds of appeal to the AIT against an immigration decision is “that the decision is otherwise not in accordance with the law”.

5

I may describe the facts of the cases as very exiguously, for nothing depends on the detail. Each of these appellants was in the United Kingdom with the benefit of a limited leave. Four of them (all save NB) applied within time for an extension. In each of these cases an extension was refused by force of paragraph 322(1A) of the Immigration Rules. That rule provided that leave was to be refused, or any extension refused, in a case where any misrepresentation is made by the immigrant to the Secretary of State, albeit that the misrepresentation is innocently made. NB's case, as I have foreshadowed, is rather different. He had a work permit with leave to remain until 6 December 2011. On 17 August 2008 he went on holiday to Pakistan, of which he is a national. On his return to Manchester Airport on 3 September 2008 his leave was curtailed and entry refused because, as he then learned for the first time, his employer had terminated his employment in his absence. In those circumstances he was not liable to removal directions under section 10 but (pursuant to section 4 of the Immigration Act 1971) to removal under Schedule 2 paragraph 8 of that Act on the directions of an immigration officer given to the captain of the aircraft which brought him in.

We are told by the respondent (see Mr Bourne's skeleton argument paragraph 69 to 70) that in fact directions for NB's prompt removal were given on 4 September 2008 and, when later his appeal was reconsidered on 3 June 2009, the AIT held that the discretion not to remove NB could not have been reasonably exercised in his favour. There is no permission to appeal to challenge that finding. In those circumstances, even if the other four appellants have the benefit of a good argument as regards the separation of refusal to extend leave from a decision to remove, NB does not. His case is complete. All necessary and appropriate decision making processes have been undertaken. His appeal will be dismissed.

6

As for the others, each appellant appealed against the adverse decision of the Secretary of State to the AIT. In each case reconsideration of the first appeal decision was ordered, but on reconsideration the appeal was dismissed. In none of the cases (leaving aside NB) did the AIT address the question whether compassionate or human rights considerations might militate against removal. The argument which the appellants wish to put forward as a matter of substance is that it was irrational or unfair for the Secretary of State to refuse the variations of leave applied for without at the same time deciding whether removal directions should be issued. If the argument were developed we would be required to consider the judgment of my lord Sedley LJ in this court in TE (Eritrea) [2009] EWCA Civ 174. It was submitted in that case (paragraph 11 of the judgment) that:

“…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.”

7

Sedley LJ cited a judgment of mine in a case where this court was faced with a closely analogous problem, JM (Liberia) [2006] EWCA Civ 1402. I hope it will be helpful if I venture just to read a short passage from that judgment.

“As the Secretary of State submits by Miss Grey of counsel, once a person's appeal against a refusal to vary his leave is dismissed, he must leave the United Kingdom. If he does not, he commits a criminal offence (Immigration Act 1971, section 24(1)(b); the 2002 Act, section 11). His entitlement to state benefit is also affected. If another employs him, that other is guilty of a crime (Asylum and Immigration Act 1996, section 8). On the AIT's view of the question, namely that the human rights issue is not justiciable on a variation of leave appeal, the unsuccessful appellant in such a case, if he has a potential article 8 claim which would so to speak come alive on his removal, surely faces a very unsatisfactory choice. Either he leaves the United Kingdom, as the criminal law says he must, or he remains until removal directions are given, anticipating that at that stage he will be able to ventilate his human rights claim before the AIT.

18. It seems to me to be wrong in principle that the price of getting before an independent tribunal, for a judicial decision on a human rights claim should be the commission of a criminal offence and other associated legal prohibitions.”

8

It is not necessary to develop other associated points or to look at any later authority. My lord Sedley LJ followed that line of reasoning in the TE (Eritrea) case. The question arises however, notwithstanding the grant of permission to appeal by Sir Richard Buxton, whether this court on these appeals possesses the jurisdiction to entertain what may in shorthand be called the TE (Eritrea) point. The appeal to the Asylum and Immigration Tribunal in each of the four cases we are now considering was of course against the refusal to vary leave and nothing else. That was the “immigration decision” to which the section 82 appeal was directed. The AIT was never asked to consider the TE (Eritrea) point and never did so. It seems to me that the complaint sought to be raised by the TE (Eritrea) point is not an assault against the immigration decision to refuse a variation of leave as such. As I indicated earlier, one of the grounds on which an immigration...

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