The Queen (on the application of X and Others) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lady Justice Andrews,Lord Justice Moylan |
| Judgment Date | 14 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1480 |
| Docket Number | C2/2020/1206 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1480
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
JR/6956/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lady Justice Andrews
and
Lord Justice Lewis
C2/2020/1206
Ramby de Mello and Farhan Asghar (instructed by Asghar and Co Solicitors) for the Appellants
Zane Malik Q.C. (instructed by Treasury Solicitor) for the Respondent
Hearing date: 6 October 2021
Approved Judgment
INTRODUCTION
This appeal concerns the question of whether the Secretary of State for the Home Department has an implied power to defer consideration of an application for leave to remain in the United Kingdom pending the outcome of criminal investigations and, if so, whether she exercised that power lawfully.
In brief, the first appellant was granted leave to enter and remain in the United Kingdom until 23 April 2017 as a Tier 1 (Entrepreneur) Migrant. The other appellants were given leave to enter as his dependants. In 2016, a criminal investigation into the first appellant and 12 others began as they were suspected of involvement in a conspiracy involving tax frauds. In April 2017, the first appellant applied to extend his Tier 1 (Entrepreneur) Migrant leave to remain and the other appellants applied to extend their leave as dependants. The respondent decided to defer, or delay, making a decision on those applications until the outcome of the criminal investigation.
The appellants contend that the respondent has no implied power to defer consideration of the application pending the outcome of the criminal investigation. They further contend that the decision to defer involved imposing a requirement which the appellants had to fulfil – namely that the first appellant had not been charged with a criminal offence – in order to qualify for leave and that requirement has not been included in rules laid before Parliament as required by section 3(2) of the Immigration Act 1971 (“the Act”). Finally, they contend that the decision to defer was unlawful and irrational.
THE LEGAL FRAMEWORK
The Act sets out the basic framework governing entry into and stay in the United Kingdom. General principles are set out in section 1 of the Act. Those persons with a right of abode (essentially British citizens and certain Commonwealth citizens: see section 2 of the Act) are entitled to live in and come and go to the United Kingdom. Others require permission to do so. The relevant general principles are set out in section 1 of the Act in the following terms:
“1.—General principles.
(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.
(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).
…..
(4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”
Section 3 of the Act makes general provision for regulation and control of immigration. It provides that a person who is not a British citizen shall not enter or remain in the United Kingdom unless given leave to do so. Section 3(2) of the Act requires the Secretary of State to lay before Parliament a statement of the rules, or any changes in the rules, as to the practice to be followed for regulating entry into and stay in the United Kingdom. The material provisions are in the following terms:
“3.—General provisions for regulation and control.
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
…..
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).”
Section 3C of the Act, inserted in 2002, deals with the situation where an application for variation of leave (for example, to extend the period for which leave to remain is given) is made but the application is not decided before the leave expires. In those circumstances, the existing leave is extended until the application is decided, or any appeal or administrative review could be sought or is pending. If a person leaves the United Kingdom, that leave lapses: see section 3C(3) of the Act.
Section 4 of the Act deals with the administration of control and provides, so far as material, that:
“4—Administration of control.
(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions) [or to cancel any leave under section 3C(3A)] 1, shall be exercised by the Secretary of State…….”
Immigration Rules (“the Rules”) and changes to those Rules have been laid before Parliament from time to time prescribing in detail the criteria which applicants for leave to enter or remain in the United Kingdom must satisfy. For present purposes, the material provisions are paragraphs 245DD, dealing with leave to remain as a Tier 1 (Entrepreneur) Migrant and the general grounds governing when leave may be refused. Paragraph 245DD provides, so far as material, as follows:
“ 245DD Requirements for leave to remain
To qualify for leave to remain as a Tier 1 (Entrepreneur) Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements (a) The applicant must not fall for refusal under the general grounds for refusal, except that paragraph 322(10) shall not apply, and must not be an illegal entrant.
…..”
There then follows a list of a further 28 requirements (contained in paragraph 245DD(b) to (s)) that an applicant must meet. By way of example, some require the applicant to have certain attributes such as access to specified amounts of money for investment or business activity. Others require that the respondent is satisfied that the applicant genuinely intends to establish, take over or become a director of one or more businesses.
Paragraph 245DD(a) provides that a person must not fall for refusal under the general grounds for refusal which are contained in Part 9 of the Rules. For present purposes, the material provision is paragraph 322(5) which, under the heading “Grounds on which leave to remain and variations of leave to enter or remain should normally be refused”, states the following:
“(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including criminal convictions which do not fall within...
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