Secretary of State for the Home Department v Ahmadi

Mr. Blundell submitted that the 2006 Regulations, and hence the 2003 Regulations, had no application in construing section 47 because the 2006 Regulations were enacted for a different purpose, that of determining when an application was “decided” for the purpose of section 3C(1)(c) and section 3C(2)(a), and they had no application to section 3C(2)(b) and section 3D(2)(a). The focus in sections 3C(2)(b) and 3D(2)(a) was not on when an application was decided, but on when an appeal could be brought under section 82(1), and an appeal can be brought under section 82(1) “where an immigration decision is made in respect of a person.” Sections 82 and 105 clearly distinguish between the making, or taking (there is no practical difference), of an immigration decision, and giving written notice of the decision that has been made or taken. An appeal under section 82 can be brought once an immigration decision (the refusal to vary leave) “is made” even if it has not been notified to the person concerned. Rule 7 of the 2005 Rules prescribes by reference to the date of service of the notice of decision the end of the period within which an appeal may be brought, but it does not define the time from which an appeal under section 82 may be brought. That time runs from the making of the decision, not from the notification of the decision.

Mr. Blundell submitted that the same distinction between the decision and notification of the decision was to be found in section 4(1) of the 1971 Act. In support of that submission he relied on two authorities: Rafiq v Secretary of State for the Home Department [1998] Imm IR 193, and R (Hashmi) v Secretary of State for the Home Department [2002] INLR 377, [2002] EWCA Civ 728. In Rafiq the Home Office had endorsed the appellant’s passport with an indefinite leave stamp, then cancelled the stamp on receipt of new information, and then after a long delay returned the passport to the appellant with the leave stamp cancelled. The appellant argued that a decision to grant indefinite leave had been made when the passport was stamped. On behalf of the Secretary of State it was submitted that this argument accorded no weight to the word “given” in section 4: “communication” of the decision was indispensable and “the process was not complete without such communication” (p. 198). Counsel for the Secretary of State drew the Court’s attention to the Divisional Court’s decision in R v Yeovil Borough Council ex parte Trustees of Elim Pentecostal Church Yeovil [1971] 23 P & CR 59, that there was in law no planning permission unless and until written notice of the local planning authority’s decision had been given to the applicant. The Court of Appeal accepted the Secretary of State’s submission (pp 199 – 200). Hirst LJ said that section 4(1) required “communication”, and observed that the Yeovil case was consistent with the Secretary of State’s argument, but was not of particular significance because it was concerned with different statutory provisions operating in a different field of law (p 200). Rafiq is not referred to in Sir Swinton Thomas’s judgment, with which Kay and Brooke LJJ agreed, in Hashmi. In that case there were two issues: whether a letter dated 11^th July 2000 was a decision to grant indefinite leave, and whether notice in writing had been given to the appellant as required by section 4(1). The Court answered both of these questions in the affirmative.

I readily accept Mr. Blundell’s submission that the 2002 Act, in sections 82 and 105 draws a distinction between making, or taking an immigration decision, and giving written notice of that decision to the person concerned. I do not accept his submission that the same approach is to be found in the 1971 Act. Section 3 confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power “shall be exercised by notice in writing given to the person concerned.” The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised. Mr. Blundell’s submission invites us to read section 4(1) as though it said: “and notice in writing shall be given to the person concerned of the exercise of the power.”

The authorities relied upon by Mr. Blundell, Rafiq and Hashmi, do not support his submission. Hashmi turned on its own facts and established no point of principle, while Rafiq tends to support Mr. Malik’s submission: that the decision-making process prescribed by section 4(1) (and section 3C(6) and rule 2 of the 2006 Regulations) is not the making of a decision followed by the notification of that decision to the person concerned, but the making of a decision by giving notification of it to the person concerned. Although the Court, for understandable reasons given the very different legislative context, did not consider that the Yeovil case was of particular significance, it did consider that the proposition that there was no planning permission unless and until notice of planning permission had been given to the applicant was consistent with the Secretary of State’s case on section 4(1), which it accepted.

Section 3C(6) and the 2006 Regulations are consistent with section 4(1). The 2006 Regulations do not determine when notice is to be given of a decision on an application for variation of leave, they determine when an application is decided for the purposes of section 3C: it is not decided until notice has been given. I do not accept Mr. Blundell’s submission that the 2006 Regulations apply only for the purpose of determining when an application is “decided” in paragraphs 3C(1)(c) and (2)(a), and have no application to paragraph 3C(2)(b). The 2006 Regulations determine when an application for variation of leave is decided for the purposes of section 3C as a whole. There has to be a consistent approach to this question throughout the section. Paragraph 3C(2)(b) extends leave during any period when an appeal could be brought under section 82(1) of the 2002 Act against the decision on the application for variation. Before an appeal can be brought under section 82 there has to be a decision on the application for variation against which the person can appeal. Subsection 3C(6) and the 2006 Regulations make it clear that there is no decision on the application for variation for the purpose of paragraph 3C(2)(b) until notice of the decision has been given.

Mr. Blundell accepted that on the Secretary of State’s approach to section 3C there was an overlap between the extension of leave under paragraph (a) of subsection 3C(2) – until notice of the decision was given – and leave beginning to be extended under paragraph (b) – when the decision was “made” prior to notice of the decision being given. In my judgment, subsection 3C(6) requires a consistent answer to the question – when is an application decided for the purpose of section 3C – and the answer to that question for the purpose of paragraph (b) is that there is no decision against which an appeal can be brought under section 82(1) until notice of the decision has been given. Mr. Blundell submitted that this would result in an inconsistency between paragraphs 3C(2)(b) and 3D(2)(a) because subsection 3C(6) applies only to the former, and not the latter. This submission is based on the Secretary of State’s erroneous approach to section 4(1) (see paragraphs 22 and 23 above): the power to vary leave under section 3(3)(a) is exercised by notice in writing given to the person affected. Giving the notice does not follow the exercise of the power, it is the manner in which the power is exercised. For these reasons I would reject ground 1 of the Secretary of State’s appeal.

Mr. Malik acknowledged that the Upper Tribunal’s acceptance of his submission as to the ambit of section 47(1) had made the exercise of the power conferred by the section “administratively inconvenient”, but he submitted that the section was not “completely unworkable” on the Upper Tribunal’s interpretation, and the Secretary of State could in any event exercise the power conferred by section 10 of the 1999 Act (paragraph 9 above). I accept Mr. Blundell’s submission that section 47 was intended to fill the gap that was left by section 10. Under section 10 removal directions may not be given until after leave has expired. If leave is extended under section 3C until an appeal against a refusal to vary leave is finally determined a substantial period may elapse before a removal decision can be made under section 10. Section 47 was enacted to enable a removal decision to be taken prior to the expiration of leave, so that removal could be effected “if and when leave ends.”

I agree with the Upper Tribunal that if the Secretary of State’s interpretation of section 3C(2)(b) is not accepted the present usefulness of section 47(1) is “highly questionable” for the reasons given by the Upper Tribunal in paragraphs 17 and 18 of its determination. The decision to remove under section 47(1) may not be made until leave to enter or remain has been extended by section 3C(2)(b), but may not be made once an appeal has been brought and is pending: see section 3C(2)(c). Although notice of a variation decision will be deemed to have been served on the second working day after posting (see paragraph 12 above), the recipient may be able to prove either that he received the notice the day after posting, and promptly appealed, thereby preventing service of a removal notice under section 47(1), or that he did not receive the notice until, say, three days after it was posted, in which case a removal decision made by the Secretary of State on the second day would be premature. On any basis, the 10 day window of opportunity under section 3C(1)(b) is a very narrow one, and the Secretary of State cannot be sure either when it commences – because service on the second day is deemed only if the contrary is not proved – or when it ends – because the appellant’s notice of appeal is filed with the First-tier Tribunal, which serves a copy on the Secretary of State as soon as reasonably practicable thereafter (see paragraph 14 above). It should be noted that these practical obstacles to the giving of “combined” variation and removal decisions, or to taking the two decisions within a short time of each other, were not considered by this Court in the series of cases which culminated in Patel v Secretary of State for the Home Department [2012] EWCA Civ 741. All of those cases were conducted on behalf of the Appellants on the opposite premise: that the Secretary of State had power to take the two decisions – on variation and removal – at or about the same time; and the issue between the Appellants and the Secretary of State was whether she was bound to exercise that power in the absence of a good reason to the contrary, or whether she was free to take a variation decision and defer taking a removal decision until a later stage.

Mr. Blundell submitted that the practical obstacles to the exercise of the section 47(1) power meant that Parliament had enacted the section in vain, which was an absurdity, and the Upper Tribunal should have adopted the Secretary of State’s interpretation of sections 47(1) and 3C(2)(b) in order to avoid that absurdity. He referred us to a number of authorities which establish the proposition that where the statutory language in question is capable of more than one meaning the interpretation which leads to a reasonably practicable result should be adopted, and an interpretation which leads to absurdity or unworkability should be rejected. The principle is not in doubt, but the Upper Tribunal concluded, correctly in my view for the reasons set out in paragraphs 22-25 above, that the statutory language was clear and did not admit of more than one interpretation.

Mr. Blundell referred to the Upper Tribunal’s observation in paragraph 20 of its determination that, were it not for the 2006 Regulations it might have been possible to adopt a different construction of section 47(1) and 3C(2)(b), and criticised the Upper Tribunal’s reliance on the 2006 Regulations as the reason why it concluded that it was “impossible” to adopt such a construction. However, this criticism of the Upper Tribunal’s determination is, in substance, a repetition of the Secretary of States’s submission in ground 1: that the 2006 Regulations were relevant for the purpose of paragraph (a) of subsection 3C(2), but were not relevant for the purpose of paragraph (b) of the subsection. I have explained why I do not accept that submission: see paragraphs 22-25 above. There is only one way to interpret subsection 3C(6) and regulation 2 of the 2006 Regulations. There is a “decision on the application for variation” for the purpose of paragraph (b) of subsection 3C(2) when notice of the decision has been given in accordance with the 2003 Regulations, and not before. Until there is such a decision there is nothing against which an appeal can be brought under section 82(1) of the 2002 Act. As enacted, section 47(1) is of little practical use. The remedy lies in Parliament’s hands. Section 51 of the Crime and Courts Act 2013 which substitutes a new version of section 47(1), received the Royal Assent on 25^th April 2013.

Section 47 was introduced by way of amendment no. 42 to the Immigration, Asylum and Nationality Bill in the House of Lords. Mr. Blundell relied upon the following statement of Baroness Ashton of Upholland when introducing the amendment on 7^th February 2006 (columns 520-521):

“Finally, Amendment No. 42 creates a new power to make a decision to remove someone from the United Kingdom. The intention behind the amendment is to allow the enforcement decision to be made at the same time as the decision to revoke, curtail or refuse to vary leave. When two such decisions are made before an appeal is lodged, the tribunal will, by virtue of Section 85(1) of the 2002 Act, be required to deal with matters in a single set of appeal proceedings. That will address the issue of variation and removal decisions, triggering the separate appeal. During the single appeal against both decisions, appellants will have continuing leave and may remain in the United Kingdom.”

There are two principal difficulties with this submission. Firstly, the intention behind the enactment of section 47 in the 2006 Act is clear, but whether that intention was carried into effect depends, not upon the wording of section 47 itself, but on when leave is extended by section 3C(2)(b) or 3D(2)(a) of the 1971 Act, and the answer to that question is to be found in section 3C(6), and the 2006 Regulations made thereunder, and section 4(1) of the 1971 Act, which were not mentioned in Baroness Ashton’s statement. The second difficulty is that while Hansard may in certain limited circumstances be an aid to interpretation if there is ambiguity in an enactment, there is no ambiguity in section 3C(6) of the 1971 Act and regulation 2 of the 2006 Regulations: there is no decision on an application for variation of leave against which an appeal can be brought under section 82(1) until notice of the decision has been given in accordance with the 2003 Regulations.

I would dismiss the Secretary of State’s appeal, and allow Mr. Ahmadi’s appeal to the limited extent of substituting an order dismissing his appeal against the variation decision, but allowing his appeal against the removal decision.

I agree.

I also agree.