We heard this appeal immediately after the conjoined appeals in Mirza and others v Secretary of State for the Home Department [2011] EWCA Civ 159 (“the conjoined appeals”). What distinguishes this appeal from the conjoined appeals is the fact that at the time when she applied in 2008 for leave to remain this Appellant had no leave to remain; her leave to remain had expired in 2002. She was an overstayer. It is common ground that a decision to refuse an application by an overstayer for leave to remain is not an immigration decision, as defined by section 82(2) of “the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”)”, against which there is a right of appeal to the Tribunal. A removal decision under section 10 of “the Immigration and Asylum Act 1999(“the 1999 Act”), is an immigration decision against which there is a right of appeal: section 82(2)(g). The issue in this appeal is whether, as submitted by Mr de Mello on behalf of the Appellant, it was contrary to the policy of the 2002 Act, unreasonable, unfair or otherwise unlawful for the Secretary of State, when refusing the Appellant’s application for leave to remain, not at the same time to make a removal decision against which she would have had a right of appeal.

The factual history is set out in some detail in the judgment of Wyn Williams J [2010] EWHC 1488 (Admin). In summary, the Appellant, her husband and daughter were granted leave to enter the UK as visitors in September 2001. In due course their leave was extended to 30^th July 2002. The family did not leave the UK in 2002 and did not apply for an extension of their leave. The Appellant and her family, including a son born in 2003, became overstayers. Both the Appellant and her husband worked, and their children attended school. On the 8^th October 2008 the Appellant applied for leave to remain in the UK, naming her husband and children as her dependants.

Her application was refused by the Respondent on 21^st July 2009. The decision notice (four decision notices, for practical purposes in identical terms, were issued in respect of the Appellant, her husband and her two children) was accompanied by a letter dated 21^st July 2009 (“the first decision letter”) which explained why her application did not meet the terms of policy DP 5/96 and why removal would not breach her, or her family’s rights under Article 8 of the European Convention on Human Rights (“ECHR”). The Appellant applied for permission to apply for judicial review of the Respondent’s decision. Following the grant of permission, the Respondent issued a new decision letter dated 19^th February 2010 (“the second decision letter”) correcting the, admittedly, erroneous approach to DP 5/96 in the first decision letter.

Wyn Williams J rejected the following submissions made on behalf of the Appellant.

Wyn Williams J accepted the Appellant’s submission that the Respondent’s decision in respect of Article 8 was irrational (para 32 judgment), quashed the first decision letter to that extent, and ordered the Respondent to re-consider the Appellant’s Article 8 claim. The Appellant appeals against that part of the order dated 23^rd July 2010 of Wyn Williams J dismissing her claim for judicial review in all other respects. The submission referred to in 4 (i) (above) is no longer pursued, permission to appeal having been refused in respect of that issue. In this appeal Mr de Mello challenges the judge’s rejection of submissions 4(ii) and 4(iii) (above). I will deal with these submissions in turn.

In the conjoined appeals we decided that in the case of those appellants who do have a right of appeal against a decision to refuse to vary their leave to remain a generalised practice or policy of separating that decision from a decision as to whether to remove them is contrary to the policy and objects of the legislation, and that while there may be cases in which segregation of the two decisions may be justified, no such justification had been shown in the five conjoined appeals. Does the fact that this Appellant was an overstayer lead to a different conclusion?

The short answer to Mr de Mello’s submission that failure to make a removal decision at the same time as a decision to refuse an overstayer’s application for leave to remain is contrary to the policy and objects of the 2002 Act (see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, per Lord Reid at p 1030B-D) is that it would be contrary to the policy and objects of the 2002 Act to impose an obligation on the Secretary of State when refusing an overstayer’s application for leave to remain to make at the same time an appealable refusal decision so as to confer a right of appeal. It would be contrary to the policy and objects of the Act because the list of appealable immigration decisions in section 82 (2) makes it clear that Parliament did not intend that overstayers, unlike those who are lawfully in the UK with leave, should have a right of appeal against a refusal of leave to remain.

It is one thing to say that if there is a right of appeal under the 2002 Act, the policy of the Act is that all outstanding issues should be dealt with at that appeal; it is quite another to say that where there is no right of appeal a decision must be made so as to confer such a right. The statutory scheme distinguishes between those who are in the UK lawfully and those who are overstayers in other respects. An overstayer who is given a removal decision may not appeal against that decision while he is in the UK, unless he has made an asylum claim or a human rights claim while in the UK, unlike a person who is in the UK with leave, who may appeal while in the UK against a refusal to vary his leave if the result of that refusal is that he has no leave to remain: section 92(1), (2) and (4).

Mr Sainsbury’s evidence that a substantial amount of people do leave voluntarily following refusal of their applications for leave to remain does not distinguish between those persons in the UK with leave who apply to vary their leave, and overstayers who apply for leave to remain. In the latter type of case it is not irrational for the Secretary of State to proceed on the basis that a significant proportion of those who have been unlawfully living in the UK and have no right to remain here will leave voluntarily following the refusal of their applications, thus making a removal decision unnecessary. There are, therefore, sound reasons, on grounds of both principle and practice to distinguish between those lawfully in the UK and those who are overstayers, and not to impose an obligation on the Secretary of State to make a removal decision whenever she refuses an overstayer’s application for leave.

Mr de Mello submitted that in those cases, such as the present case, where the overstayer’s family includes children, the duty to have regard to the need to safeguard and protect the welfare of those children imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) when coupled with the Secretary of State’s Guidance issued for the purpose of subsection 55(4) meant that there was a need for the two decisions – refusal of leave and removal – to be taken at the same time. He referred us to paragraph 2.20 of the Guidance which advises that:

“2.20.

There should also be recognition that children cannot put on hold their growth or personal development until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them.”

Mr Blundell accepted that the need to achieve timely decisions where children were involved would be a relevant factor when deciding whether, in any particular case, it would be unfair or irrational not to make a removal decision at the same time as the refusal of leave. However he submitted, correctly in my view, that each case would be fact sensitive. There might well be cases where it would not be in the child’s best interests to make a removal decision rather than, eg, waiting to see if the family left voluntarily after the end of the school term or year, or after the child had fully recovered from hospital treatment. In my judgment it is not possible to spell out of either section 55 or the Guidance issued thereunder a general obligation to make a simultaneous removal decision in every case where children are refused leave to remain.

Mr de Mello also submitted that the Appellant, having made a claim under Article 8 of the ECHR, had a right to have that claim determined in a way that was procedurally fair, and that the necessary procedural safeguards included a right to appeal to an independent tribunal against the Respondent’s rejection of her claim. The ability to apply for judicial review of the Respondent’s decision was not an adequate procedural safeguard because, however intensive the review, judicial review was not an appeal on the merits.

On the facts of the present case this submission is academic because Wyn Williams J allowed the Appellant’s claim for judicial review of the Respondent’s Article 8 decision (para 5 above). He did so on conventional judicial review grounds because that is the way in which the Appellant’s claim was argued before him. Mr. Blundell referred us to the decision of the House of Lords in Secretary of State for the Home Department v Nasseri [2009] UK HL 23 in which Lord Hoffmann explained that the court’s task when breach of a Convention right is in issue is to decide, not whether there has been a defective decision making process, but whether the Applicant’s Convention rights have been violated: see paras 13-15.

In my judgment it is unnecessary to consider the hypothetical question – what is the practical difference between an appeal on the merits and judicial review when breach of the ECHR is in issue – firstly because the answer could make no difference on the facts of this case; and secondly because it is necessary to have regard to the legislative scheme as a whole when deciding whether or not the Appellant’s rights under Article 8 are adequately protected. Her opportunity to challenge the Article 8 aspects of the Respondent’s decision to refuse leave to remain did not exhaust her right to rely on Article 8. If and when a removal decision is made she will be able to appeal to the Tribunal against that decision on the ground that removal from the UK would be in breach of her and her family’s Article 8 rights: sections 82(1)(g) and 84(1)(g). There is no need to impose an obligation on the Secretary of State to make simultaneous refusal of leave and removal decisions in all cases involving overstayers where Article 8 issues are raised in order to ensure that the process is Article 8 compliant.

Policy DP 5/96 was withdrawn on 8^th December 2008, but the Respondent applied it in both the first and the second decision letters because it was in force when the Appellant made her application for leave to remain on 8^th October 2008. Having recorded the Respondent’s acknowledgement that the first decision letter was unlawful insofar as it related to DP 5/96, Wyn Williams J dealt with the lawfulness of the second decision letter’s treatment of DP 5/96 in paragraphs 20-27 of his judgment. In paragraphs 25-27 he identified, and gave his answer to, the critical question:

“25.

During the hearing, the focus of the oral submissions upon policy DP 5/96 was upon whether the Defendant had been entitled to conclude not just that the Claimant and her husband had been working illegally (about which there was no dispute) but that they had probably engaged in deception in order to obtain such employment.

26.

Having considered this matter with some care I am satisfied that the Defendant was entitled to conclude that the Claimant and her husband must have engaged in deception at least to some extent. It is clear from the documentation presented to the court that both the Claimant and her husband obtained a national insurance number. There was evidence before the Defendant which demonstrated, clearly, that the Claimant’s husband obtained his national insurance number before the expiry of his leave to remain on 30 July 2002. Yet it was a condition of his leave to remain until that date that he did not engage in work. Although there is no evidence about when the Claimant obtained her national insurance number there is no dispute that she did. Neither the Claimant nor her husband was entitled to obtain a national insurance number, as it seems to me, since there has been no time since they arrived in this country when they were entitled, lawfully, to work. Yet by applying for a national insurance number they were at the very least impliedly representing that they were entitled to work. In short, it seems to me that they must have obtained a national insurance number by deception. Further, in each job application made by the Claimant and her husband there was probably an implied assertion of an entitlement to work. To that extent, the Claimant and her husband used deception to obtain employment.

27.

I am satisfied that the justified finding of deception on the part of the Claimant and her husband when taken in conjunction with the other features relied upon by the Defendant made it permissible for the Defendant to conclude that exceptional circumstances existed which justified a conclusion that the Claimant an her family should not benefit from policy DP 5/96. I stress that my decision relates to the lawfulness of that decision. I should not be taken to be determining whether or not the Defendant’s decision would be upheld on a merits based appeal.”

Mr de Mello challenges that conclusion. He submits that since the policy applies to children who have lived unlawfully in the UK for at least 7 years it is likely that their parents will have worked during all or part of that time, and it is likely that they will have had to engage in some form of deception in order to do so. Given the policy context, such deception cannot reasonable be regarded as an exceptional feature justifying the Respondent’s conclusion that the Appellant and her family should not benefit from the policy.

Mr Blundell submitted that this was a case which went beyond “mere” illegal working. Wyn Williams J was entitled to conclude, for the reasons he gave, that there had been deception. This finding was not challenged in the grounds of appeal. The deception practised by the Appellant and her husband had taken place not merely when they initially applied for national insurance numbers, but also on each occasion when they subsequently applied for jobs. The deception had been maintained over a period of more than 6 years from July 2002 – October 2008, and on each occasion on which the Appellant or her husband had obtained a job they had placed their employer at risk of prosecution.

I agree with the judge that the Respondent was entitled to conclude that, in the light of this deception, this was one of those exceptional cases where the Appellant and her family should not benefit from DP 5/96. Like the judge, I would stress that my decision is confined to the lawfulness and not the merits of this aspect of the Respondent’s decision.

After the hearing of this appeal and the conjoined appeals had concluded on 26^th January Mr de Mello drew our attention to the judgment of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 which was given on 1^st February 2011. He did not ask permission to make any further submissions, or to amend the grounds of appeal in the light of the Supreme Court’s judgment.

Since we have not heard any submissions in relation to the issue, it would not be appropriate to express any concluded view, but it seems to me that it would be at least arguable that both the first and the second decision letter treated the best interests of the Appellant’s two children as merely one consideration to be weighed in the balance alongside other competing considerations, and did not treat it as a primary consideration as required by ZH: see the judgment of Lady Hale at paras 29 and 33, and Lord Kerr at para 46. Although the Appellant’s two children are not British nationals (unlike the children in ZH), they have now been in the UK for nearly 10 years, in the case of her daughter who arrived in the UK in September 2001 aged 9 months; and nearly 8 years in the case of her son who was born in the UK on 5^th July 2003. If and when a decision is taken as to whether or not the Appellant and her family should be removed from the UK the Secretary of State will have to apply ZH and treat the best interests of the two children as a primary consideration.

For the reasons set out in paragraphs 6-18 (above) I would dismiss this appeal.

I agree

I also agree.