The Queen (on the application of C1) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lady Justice Asplin,Lady Justice Elisabeth Laing |
| Judgment Date | 19 January 2022 |
| Neutral Citation | [2022] EWCA Civ 30 |
| Docket Number | Case No: C4/2021/0457 |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 30
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Asplin
and
Lady Justice Elisabeth Laing
Case No: C4/2021/0457
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Jay
Royal Courts of Justice
Strand, London, WC2A 2LL
Robin Tam QC and William Hays (instructed by The Treasury Solicitor) for the Appellant
Amanda Weston QC and Anthony Vaughan (instructed by Leigh Day) for the Respondent
Hearing date: 25 November 2021
Approved Judgment
Introduction
This is an appeal for which Jay J (‘the Judge’) gave leave. It concerns the meaning and legal effect of section 3B of the Immigration Act 1971 (‘the 1971 Act’) and of article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 (‘the Order’). The Judge allowed C1's application for judicial review of a decision of the Secretary of State to detain him under immigration powers. The Judge made a declaration that article 13(7) of the Order only permits the cancellation of limited leave to remain (‘LTR’) held by a person who is outside the United Kingdom and does not permit the Secretary of State to cancel indefinite leave to remain (‘ILR’) held by a person who is outside the United Kingdom; that the purported cancellation of C1's ILR was of no effect; and that C1's detention was unlawful as a result.
C1 was granted ILR in 2017. He left the United Kingdom for Iran on 21 November 2018. On 26 November 2018, while C1 was outside the United Kingdom, the Secretary of State in person decided to exclude C1 from the United Kingdom on the grounds that his presence in the United Kingdom was not conducive to the public good, and cancelled his ILR under article 13(7) of the Order and under paragraph 321A(4) of the Immigration Rules (HC 395 as amended) (‘the Rules’). C1 tried to return to the United Kingdom several times, eventually, and successfully, in an inflatable boat. The Secretary of State then detained C1 on the grounds that he was an illegal entrant.
The Secretary of State was represented by Mr Tam QC and Mr Hays. Ms Weston QC and Mr Vaughan represented C1. I thank all counsel for their written and oral submissions. All counsel appeared before the Judge.
The Secretary of State's grounds of appeal are that
i. the Judge erred in law in deciding that article 13(7) did not apply to ILR; and/or
ii. if and to the extent that the Judge held that article 13(7) was ultra vires section 3B of the 1971 Act he did err, or would have erred.
Ms Weston contended that the Secretary of State did not have permission to rely on an argument which the Secretary of State raised for the first time in her skeleton argument for this appeal. That argument was whether article 13(7) was authorised by section 3B(3)(a) of the 1971 Act as an incidental or supplemental provision. The Court agreed that the Secretary of State needed permission to appeal on that point. The Court indicated that it would hear the arguments on the point and decide, as part of the judgment overall, whether to give permission to appeal. I consider this further at paragraphs 98 and 99, below. In short, for the reasons given below, the point is arguable. I would give permission to appeal on this point.
Summary of decision
For the reasons given in more detail below, I have reached five conclusions.
i. The legislative scheme must be considered as a whole.
ii. In this legislative scheme, references to ‘leave to remain’, unless specifically expressed as ‘limited leave to remain’ or as ‘indefinite leave to remain’ include both concepts.
iii. In this legislative scheme, references to ‘vary’ (and to cognate terms) can include ‘cancel’ (and cognate terms) but the two words are not interchangeable. The meaning of ‘vary’ (but not its implied object) depends on the context.
iv. Section 3B of the 1971 Act authorises a power, and article 13(7) of the Order confers a power, to cancel both limited and indefinite leave to remain which are in force by virtue of article 13.
v. The Judge's decision was wrong in law.
The nature of the issues on this appeal
The issues on this appeal depend on the correct construction of primary and delegated legislation. I will therefore start by describing the legislative history, in so far as it is relevant, and the current provisions. The nature of this issue means that it is not necessary to consider the reasoning of the Judge in any detail. Paragraph references, nonetheless, are to the Judge's judgment, unless I say otherwise.
The Immigration Act 1971 and provisions amending it
As originally enacted, the 1971 Act was in four parts. Part I (sections 1–11) was entitled ‘Regulation of entry into and stay in United Kingdom’, Part II (sections 12–23), ‘Appeals’, Part III (sections 24–28), ‘Criminal proceedings’ and Part IV (sections 29–37), ‘Supplementary’. One Schedule (Schedule 2) (‘Administrative provisions as to control on entry and departure’) is potentially relevant.
The side note to section 1 is ‘General Principles’. Section 1(1) still provides that those who are expressed in the 1971 Act to have a right of abode are to be free to live 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’ the 1971 Act. By section 1(2), those who do not have that right
‘may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, and stay and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter and 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 and remain).’
Section 1(3) provides, in general, that journeys within the common travel area (‘the CTA’) ‘shall not be subject to control under this Act’, and that a person shall not ‘require leave to enter the United Kingdom’ when arriving after such a journey.
Section 1(4) requires ‘[t]he 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’ to ‘include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to such conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom’.
Section 2 made detailed provision for the circumstances in which a person ‘is under this Act to have a right of abode in the United Kingdom’. It has been significantly amended since enactment. Section 2(6) defined the term ‘patrial’ (a person having a right of abode). Section 2(2), in its current form, provides, with two express exceptions, for the term ‘British citizen’ in the 1971 Act to include Commonwealth citizens who had a right of abode immediately before the commencement of the British Nationality Act 1981.
Section 2A was inserted by the Immigration Asylum and Nationality Act 2006 (‘the 2006 Act’). Section 2A(1) enables the Secretary of State to make an order removing a person's right of abode, but only if the Secretary of State thinks it would be conducive to the public good for a person to be excluded or removed from the United Kingdom.
The side note to section 3 is ‘General provisions for regulation and control’. Where a person was not a patrial (‘British citizen’ in the current version of section 3), he ‘shall not enter the United Kingdom unless given leave to do so in accordance with this Act’ (section 3(1)(a)). Paragraph 44(1) of Schedule 14 to the Immigration and Asylum Act 1999 (‘the 1999 Act’) amended section 3(1)(a) by inserting ‘the provisions of, or made under’ after the phrase ‘in accordance with’. Such a person could be given leave to enter (‘LTE’) the United Kingdom (or, when already there, LTR in the United Kingdom) either for a limited or for an indefinite period (section 3(1)(b)). If limited leave to enter or remain was given, it could be given subject to conditions restricting employment, or requiring its subject to register with the police, or both (section 3(1)(c)). Section 3(1)(c) has been supplemented since its enactment, but not in any way which is relevant to this case.
Section 3(2) has not been amended since its enactment. Its first paragraph requires the Secretary of State, ‘from time to time (and as soon as may be)’ to 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,...
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