SA (Pakistan) & Anor v Secretary of State for the Home Department

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.

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.

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.

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”.

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.

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.”

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.”

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 decision may be challenged is “that the decision is otherwise not in accordance with the law”. It might be sought to be contended that that expression is wide enough to embrace a complaint that the immigration decision to refuse variation of leave ought to have been accompanied by another decision, but it seems to me that the statute cannot be read in that way. It is to be noted that the refusal to vary leave made in each of these cases, pursuant, as I have said, to paragraph 322(1A) of the Rules, is itself legally secure. The rule allowed no discretion, as the AIT recognised in each of these cases.

The complaint that is sought to be made here is not in truth against the immigration decision. It is a complaint to the effect that the Secretary of State should have done something else as well, namely make a variation decision. Mr Malik this morning has referred us to section 103B of the 2002 Act. Subsection 1 provides:

“(1)

Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.”

Mr Malik’s submission is that, while it may be that the original appeal had to be focused specifically on the immigration decision in question, after a reconsideration an appeal to the appropriate court -- here the Court of Appeal -- may, under section 103B(1), be brought on any point of law whatever, whether or not it was raised before the AIT and whether or not it runs wider than would a mere assault on the immigration decision in question. However, I consider that the point of law being referred to in section 103B(1) must generally arise out of the decision of the AIT on the reconsideration; though it is true that that point was stretched somewhat in Bulale v SSHD [2008] EWCA Civ 806. At all events, the language of section 103B(1) cannot be read so as to allow appeals upon matters travelling beyond the legal merits of the immigration decision originally sought to be appealed. In those circumstances there is no jurisdiction, within the four corners of these appeals as presently constituted, to entertain the TE (Eritrea) point.

The question remains: what should be done? It seems to me, and we have canvassed this with counsel (I apprehend my lords are agreed as to this course of action), that the right course here is to dismiss the appeals, given there is no jurisdiction to entertain the only live point. We contemplate that Mr Malik on behalf of the four appellants may advise his clients to seek judicial review proceedings of what I will call for present purposes “the apparent practice of the Secretary of State” to deal with variations of leave and removal directions sequentially. He would need, of course, in the ordinary way to seek judicial review permission; and, if he does so, then the respondent Secretary of State would have an opportunity to put in written observations in opposition. If permission were granted then questions of what evidence, if any, the Secretary of State might wish to put in would arise as well.

Mr Malik has pointed out, correctly, that if we simply dismiss the appeals today then the leave which each of his four clients enjoys pursuant to section 3C of the Immigration Act 1971 would lapse; and if they remain here to pursue a judicial review they would be faced with what one might call the TE (Eritrea) consequence, namely that they would be here unlawfully. Accordingly we propose to dismiss the appeals, as we have said, but also to direct that that dismissal shall not take effect until four weeks hence, or such later date as any judicial review that is brought on behalf of these appellants is disposed of. The intention in making such a direction is to protect the section 3C position while properly constituted judicial review proceedings, if they are brought, are entertained in the Administrative Court. No doubt it goes without saying that we are not (nor could we be) requiring Mr Malik to bring judicial review proceedings, nor are we suggesting that any application for judicial review that is brought will necessarily be successful or even be met with the grant of leave. But it seems to us that the opportunity should be provided for Mr Malik to seek to have the TE (Eritrea) point tested in the Administrative Court by an application for leave to move for judicial review.

The order of the court then is that NB’s appeal simply be dismissed; that the others be dismissed, but that dismissal not take effect until such time as I have already indicated.

I agree both with the disposal proposed by my lord and with his reasons for so proposing.

I also agree.