R (RK) (Nepal) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Aikens,Lord Justice Moses,Lord Justice Waller,Lord Justice Sedley
Judgment Date26 November 2009
Neutral Citation[2009] EWCA Civ 1381,[2009] EWCA Civ 359
Date26 November 2009
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2009/2346,Case No: C4/2009/0333

[2009] EWCA Civ 1381

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(MR TIMOTHY BRENNAN QC)

Before:

Lord Justice Sedley

Case No: C4/2009/2346

The Queen on the Application of Saleh
Appellant
The Secretary of State for the Home Department
Respondent

Mr Graham Denholm (instructed by TRP Solicitors) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

Lord Justice Sedley

Lord Justice Sedley:

1

Mr Denholm has renewed the application for permission to appeal against a refusal by Mr Timothy Brennan QC sitting as a judge of the Administrative Court to interfere with the administrative detention of the applicant. That was a detention as a sequel to a long and not entirely creditable immigration history which began on 19 August 2008 and is still continuing. That in itself puts up at least an amber light. What is capable of having critically affected it, however, is that in April 2009 fresh representations made by the applicant were accepted by the Secretary of State as constituting a fresh claim to asylum. That arguably gives him very considerable incentive to stay around, so to speak, and not to abscond.

2

I had enquiries made this week of the Home Office to find out whether a decision on the fresh application is imminent, and a response has been received which there is no reason to doubt that “A decision on the fresh asylum claim should be available by 11 December 2009”. If that decision is favourable then of course the applicant can expect to be released with indefinite leave to remain. If it is unfavourable he has a right of appeal. Whether that is a right which it is worth his while to exercise will depend upon the Home Office's reasons for refusal and the advice that Mr Denholm or other lawyers are able to give him, but there is no knowing from that point how long the road through the Tribunal may be. We know from experience that it can be considerably prolonged by reconsiderations of either side's instance and thereafter by further appeals. The prospect of detention continuing through such a long process is not a happy one.

3

Mr Denholm has shown me the decision of this court in R (A) v SSHD [2007] EWCA Civ 804 in which the court makes clear that the judicial review jurisdiction in relation to administrative detention decisions is not a hands-off Wednesbury jurisdiction but a closely interventionist jurisdiction which, while it seems to me stopping short of the court asking itself “If I were the Home Secretary what would I have decided?”, nevertheless requires the Home Secretary to justify in detail a decision to detain or continue to detain an individual.

4

While Mr Brennan QC has given that kind of very detailed consideration to the decision to continue to detain in this case, his reasoning is, in my judgment, and notwithstanding the contrary on sight of the papers of Sir Richard Buxton, arguably deficient in respects which I will not detail but which are well set out in the grounds of appeal.

5

Mr Denholm agrees that in spite of the expedition that would ordinarily be given to an appeal of the kind that I propose to give permission for, it would not be to one's advantage for this appeal to come on before the Home Secretary's decision on the fresh claim is known. So long as that is within the time frame suggested, namely by the middle of December, if it is not then I do not think the appeal should be any further delayed. There is no good reason, however, for delaying an appeal beyond that time given the indefinite character of what may follow in terms of appeals and further appeals.

6

I will direct therefore that the appeal is to come on before the commencement of the Christmas vacation but I do not think any greater degree of expedition would be to anybody's advantage.

7

On that basis, Mr Denholm, you have permission.

Order: Application granted.

[2009] EWCA Civ 359

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

HHJ McKENNA QC

CO/8477/2008

Before:

Lord Justice Waller

Lord Justice Moses and

Lord Justice Aikens

Case No: C4/2009/0333

Between
R On The Application Of RK (Nepal))
Appellant
and
Secretary Of State For The Home Department
Respondent

Amanda Jones (instructed by Bhogal Partners Solicitors, London) for the Appellant

Mr Denis Edwards (instructed by Treasury Solicitor, London) for the Respondent

Hearing dates: 18 March 2009

Lord Justice Aikens
1

On 18 March 2009 the court heard an application by Roshani and Rajani Karki, whom I will call “the applicants”, for permission to appeal an order, dated 3 February 2009, of HHJ McKenna QC sitting as a deputy High Court Judge of the Queen's Bench Division. Judge McKenna had refused their renewed application for judicial review of decisions taken on behalf of the Secretary of State (“the SSHD”) dated 25 and 26 November 2008. Those decisions were: (1) that the applicants were liable to be removed from the UK because they were in breach of the conditions of their leave to enter and remain in the UK as students; and (2) a direction that they would be removed that day to Nepal. The reasons given by the SSHD for these decisions were that both applicants had been found working for more than the 20 hours a week that is permitted during term time to non – British citizens given leave to enter and remain as students.

2

At the end of the hearing the court announced that the applications would be refused, for reasons to be given later. The court decided to reserve its reasons because it was told that there were two conflicting decisions at first instance on the point raised in this case. The first is that of Senior Immigration Judge PR Lane in the case of R on the application of CD (India) v Secretary of State for the Home Department, 1 (which I shall call “ CD”). The second decision is that of Mr Ian Dove QC sitting as a Deputy High Court Judge in the Administrative Court of the Queen's Bench Division in R on the application of Malik Meharali Saleh v Secretary of State for the Home Department, 2which I shall refer to as “ Saleh”. This court must determine which of those decisions is correct.

3

The issue is this: when a non—British citizen, who has been given leave to enter and stay in the UK as a student and is then ordered by the Secretary of State for the Home Department (“SSHD”) to leave the UK because of a breach of the conditions of staying here, has he a right to appeal that decision whilst still in the UK? That has been rather inelegantly called the right to an “in – country” appeal. The alternative is a right of appeal from whichever country the non – British citizen goes to after removal from the UK. CD held that there was an “in country” right of appeal in such a case. Saleh held that CD (India) was wrongly decided. Mr Dove held that there was no in-country right of appeal in such circumstances.

The background

4

The applicants are nationals of Nepal. Roshani arrived in the UK on 28 September 2004 and she was granted leave to enter as a student. Her leave was extended. On 28 March 2008 it was extended for 1 year, that is until 31 March 2009, in order that she could complete a law degree.

5

Rajani arrived in the UK on 6 June 2008. She was granted leave to remain as a student on the same terms as her sister. Her leave was valid until 30 September 2011.

6

Leave to enter for both applicants was subject to the Immigration Rules, in particular Rule 57 which applies to those granted leave to enter as students. That Rule indicates that the student is not supposed to engage in business or full time employment, but can take part time or vacation employment with the consent of the SSHD. The Immigration Rules are supplemented by Immigration Directorate Instructions, (“ IDI”), which constitute guidance. One of those instructions stipulates that students should work for no more than 20 hours a week during term time, although they may work for longer times in vacations.

7

Both applicants undertook work during their term time. On 25 November 2008, as a result of investigations, both applicants were challenged by officials from the UK Border Agency about the number of hours that they were working. Each applicant was served with form IS151A, indicating that she was a worker acting in breach of the conditions of her leave to enter and remain in the UK as a student. Each was made the subject of Removal Directions on 26 November 2008. The Removal Directions stated that there was no right to appeal that decision whilst they were still in the UK. In addition, Roshani signed a form IS101 agreeing to depart the UK voluntarily. However, she says that she only signed it because she felt surrounded and pressured by male Immigration officials.

8

Both applicants say that they do not wish to return to Nepal. On the contrary, they say that they wish to complete their studies in the UK, particularly as they have both invested much time and money in their studies so far.

9

Originally it was intended to remove the applicants on 27 November 2008. However, each applied for judicial review of the decision and/or the statement that there was no in-country right of appeal against the decision to remove them. At the same time each applicant applied for an interim...

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