Qongwane & Ors v Secretary of State for the Home Department

These appeals raise questions as to the interpretation and effect of paragraph 353B of the Immigration Rules, which became effective on 13 February 2012. It came into force at the same time, and following the same Statement of Changes in Immigration Rules, as the deletion of paragraph 395C. Paragraph 353B is in Part 12 of the Immigration Rules, entitled “Procedure and rights of appeal”. It is as follows:

“Exceptional Circumstances

353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant's:

(i)

character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;

(ii)

compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;

(iii)

length of time spent in the United Kingdom spent for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused;

in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.

This paragraph does not apply to submissions made overseas.

This paragraph does not apply where the person is liable to deportation.”

As published, the antepenultimate paragraph (beginning “in deciding …”) is part of subparagraph (iii), but it is obvious, and was agreed before us, that paragraph 353B should be read as formatted above.

Thandiwe Qongwane

Thandiwe Qongwane is a citizen of Malawi, aged 31. She arrived in this country in 2003 with an entry clearance visa as a student. As subsequently extended, it expired on 30 November 2005. She has been here unlawfully since then.

In October 2011, Ms Qongwane made an application for leave to remain on the ground of her rights under Article 8 of the European Convention on Human Rights. On 23 May 2012 the Secretary of State served notice that she had decided to remove Ms Qongwane, for the reasons set out in her decision letter of that date addressed to Ms Qongwane’s solicitors. In that letter the Secretary of State rejected the human rights claim, giving cogent and unexceptionable reasons for doing so. The letter continued:

“Careful consideration has been given as to whether your client should qualify for Discretionary Leave in the United Kingdom. Consideration has therefore been given to the following factors:

(i)

Character, conduct and associations including any criminal record and the nature of any offence of which the applicant has been convicted.

(ii)

Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable.

(iii)

Length of time spent in the United Kingdom accrued for reasons beyond the migrant's control after the human rights or asylum claim has been submitted or refused.

(iv)

Any representations received on the persons behalf.

Careful consideration has been given to all these circumstances individually and together, but for the reasons given above it is not accepted that there are exceptional circumstances in your case considered sufficiently compelling to justify allowing you to remain in the United Kingdom.

…

Regard has been given to all the representations submitted. However, for the reasons given above, it is considered that your client’s removal from the United Kingdom is appropriate.”

As she was entitled to do, Ms Qongwane appealed under section 82(2) (g) of the Immigration Act 2002 to the First-tier Tribunal. Not surprisingly, it had no difficulty in dismissing her appeal. It did not expressly consider the application of paragraph 353B to her case, but having considered the matters relied upon for her Article 8 claim and determined that her removal would not infringe her rights under that Article, it concluded:

“There is no evidence of anything in the appellant’s private life to found compassionate circumstances such as to justify a finding that the appellant should be allowed to remain outside the Immigration Rules under Article 8. We find that the appellant’ private life would be able to continue in all its essential respects in Malawi and that her removal is proportionate in all the circumstances.”

She appealed to the Upper Tribunal, which heard her appeal together with that of Vilan Patel and Aysha Khanum and three others. I shall refer to its determination below.

Vilan Patel

Mr Patel’s case was considered by the Secretary of State in a letter dated 2 October 2012. It did not refer expressly to paragraph 353B, but it referred to the length of time he had been in this country and to the fact that he was an overstayer who had remained in breach of immigration laws, to the fact that he had no criminal record, and to the representations that had been made on his behalf. It was concluded that his removal would not infringe his rights under Article 8 and that there were no sufficiently compelling or compassionate circumstances to justify his remaining in this country. For these reasons, the Secretary of State had decided to issue removal directions.

Mr Patel too appealed to the First-tier Tribunal. It addressed his appeal as an Article 8 claim only, and rejected it. He too appealed to the Upper Tribunal.

Aysha Khanum

In her decision letter dated 22 March 2012 the Secretary of State considered and rejected Mrs Khanum’s Article 8 claim. In addition, the letter cited Paragraph 353B, set out and addressed the factors it required to be considered and concluded that her removal was appropriate. It informed her that the Secretary of State had decided to remove her.

Mrs Khanum appealed to the First-tier Tribunal. According to its determination, dated 5 July 2012, the only grounds relied upon were her contentions that her rights under Articles 3 and 8 would be infringed by her removal. The Tribunal carefully considered the evidence and rejected her claims.

Dalvir Singh

Mr Singh entered the United Kingdom illegally, according to him in January 2004. He applied for asylum and was served with removal papers. The Secretary of State rejected his claim on 5 February 2004; he then absconded. In July 2011 he applied for leave to remain on the basis of an Article 8 claim. It was refused with no right of appeal on 30 August 2011. The Secretary of State’s letter dated 20 March 2012 stated that his case had been reviewed but the decision maintained to refuse leave to remain and to remove him. The letter referred to paragraph 353B, listed the factors to which it referred, and stated:

“Having considered the factors referred to in paragraph 353B of the Immigration Rules the Secretary of State has concluded that there are no exceptional circumstances in your case. It is therefore appropriate to proceed with your removal from the United Kingdom.”

The letter stated that in reaching her decision the Secretary of State had noted his immigration history, and continued:

“You have remained in the United Kingdom without leave to enter or remain for 8 years and 2 months. No delay has occurred in dealing with your application(s). The length of your residence in the United Kingdom has resulted from your non-compliance with the immigration laws.

Although you have remained in the United Kingdom without valid leave to do so, you have no known criminal record, and therefore your character, conduct and associations are not otherwise in doubt.

Having considered the factors referred to in paragraph 353B of the Immigration Rules the Secretary of State has concluded that there are no exceptional circumstances in your case.”

I would have thought that this decision was wholly unexceptionable, indeed that no other decision could sensibly have been made by the Secretary of State. Nonetheless, Mr Singh appealed. The determination of the First-tier Tribunal refers solely to his Article 8 claim: there is no trace of any ground relating to paragraph 353B. The Tribunal’s rejection of his claim was, to say the least, unsurprising.

Nonetheless, Mr Singh applied to the Upper Tribunal for permission to appeal. His application was out of time by over 2 weeks, and the Upper Tribunal was not satisfied that by reason of special circumstances it would be unjust not to extend the time for appealing. In addition, the Upper Tribunal rejected the grounds of appeal on their merits, or rather lack of merits.

Not to be outdone, Mr Singh’s solicitors issued proceedings for judicial review. They were issued late. The grounds contend that paragraph 353B was expressly relied upon before the First-tier Tribunal. We have not been provided with his grounds of appeal to the First-tier Tribunal, but as I noted above its decision does not suggest that it was relied upon, and it is significant that the decision of the Upper Tribunal does not refer to it either. Moreover, Mr Singh’s skeleton argument in this Court does not suggest that it was raised before the First-tier Tribunal. The grounds for judicial review contended that it was incumbent on the First-tier Tribunal expressly to address the exercise of discretion under paragraph 353B.

Permission to apply for judicial review was refused on two grounds: that the application had been filed 8 weeks and 6 days out of time, that an extension of time was not justified, and that there was no merit in the application.

Mr Singh applied for permission to appeal out of time, putting forward the same justification as had been rejected by the Upper Tribunal and the Judge, with no information other than that he “was out of funds and unable to secure funding. He was able to raise the funds only recently so to instruct solicitors …” Permission was granted by Laws LJ on the ground that his contentions relating to paragraph 353B were arguable and its status important.

Mr Malik raised three issues of principle before the Upper Tribunal:

Much of the appellants’ arguments involved the contention that paragraph 353B was to be regarded as the successor or replacement to the previous paragraph 395C, and should be interpreted and applied similarly. The Upper Tribunal rejected this contention, concluding that paragraph 353B is to be interpreted and applied on its own terms. The substance of the Upper Tribunal’s determination on these issues of principle is in paragraphs 39 to 43:

“40.

On our understanding of paragraph 353B, the relevant part of which for the purposes of these appeals is the second part of the first paragraph, there is no obligation on the Secretary of State to give consideration to the three sub-paragraphs of paragraph 353B where the decision is made to remove an overstayer. There is no obligation to carry out a review and there is no obligation to reveal the outcome of any review that takes place. Properly applied, we can see no circumstances in which a person would become aware that his or her case had been considered by a decision maker in these particular circumstances. He would be a person who had no outstanding further submissions and whose appeal rights were exhausted. He would have no reason to suppose that a review would be carried out and would have no awareness of the outcome of any review.

41.

This raises the question not so much of the generic issue which we have considered above, but what the position is when the Secretary of State refuses to consider paragraph 353B in the context of an appeal against a decision to remove an overstayer. It will be clear from what we have said above that we consider the Secretary of State was wholly wrong to give consideration to paragraph 353B in these cases. The paragraph did not, on its own terms, apply to them. On the other hand, it is difficult to see that a person could be disadvantaged in any way by consideration of the factors set out in that paragraph.

42.

Clearly there is a right of appeal, under section 82(2)(g). A particular question following from that is whether, under section 84 of the Act there is a ground of appeal under (e) that the decision is otherwise not in accordance with the law, or under (f) that the person taking the decision should have exercised differently a discretion conferred by Immigration Rules. We see no basis for either ground of appeal being remotely arguable in this context. Hence we do not see the paragraph 353B review process as involving the exercise of a discretion conferred by Immigration Rules; nor, in those circumstances, can the decision resulting from the review be said to be otherwise not in accordance with the law. It is not a decision that gives rise to any consequences in law.

43.

As regards issue (c), the question of whether a decision which is unlawful at common law is always incompatible with Article 8, if engaged at all, the matter is not before us, as was argued by Mr Hayes. It is entirely academic to the outcome of these appeals for the reasons set out above. Bearing in mind what was said by Lord Dyson M R in Gurung, at paragraph 52, in view of our decision on the other matters, we do not see the point as requiring decision in these appeals.”

The Tribunal then applied its conclusions to the facts of the cases before it and dismissed the appeals.

Before this Court, on behalf of Qongwane, Patel and Khanum, Mr Malik put forward the three propositions he had argued before the Upper Tribunal, namely:

On behalf of Mr Singh, Mr Bedford adopted Mr Malik’s submissions and submitted in addition that paragraph 353B does not comply with the requirement in Article 8 of a decision “in accordance with the law” because it was too vague.

I did not understand Ms Anderson to take issue with Mr Malik’s first proposition. The argument was rather as to the circumstances in which paragraph 353B applies. She took issue with his second proposition on the ground that the discretion of the Secretary of State is not in the exercise of “a discretion conferred by the Immigration Rules” for the purposes of section 84(1)(f) of the 2002 Act, and that the Tribunal has therefore no jurisdiction to consider it. Mr Malik submitted that the discretion is conferred by paragraph 353B, and relied on the decision of this Court in Mirza [2011] EWCA Civ 159 as authority for his submission. Ms Anderson submitted that Mr Malik’s third proposition had no application to the cases before the Court, so that it was unnecessary to make a decision on it.

I would begin by making what I would hope are uncontroversial observations. The first is that paragraph 353B is not to be construed by reference to the deleted paragraph 395C of the Immigration Rules. The Rules must be construed and applied in the form they take at the date of the decision in question. It would be quite wrong to require or to expect immigrants, prospective immigrants or their advisers to trawl through previous versions in order to seek to understand them. Indeed, if anything, the different wording and location in the Immigration Rules of paragraph 353B as compared with paragraph 395C (and the difficulties to the administration of the immigration system caused by 395C) point to change rather than similarity.

Secondly, on any basis the scope for the exercise by the Secretary of State of the discretion envisaged (to use, for the present, a neutral expression) by paragraph 353B is narrow. Persons who seek to remain in this country under specific provisions of the Immigration Rules, such as students on approved courses of further education, will be expected either to qualify under the Rules or to leave. Person who establish claims for asylum, or under the European Convention on Human Rights, or EU Treaty rights, are outside the scope of paragraph 353B, and in any event have no need for the exercise of any discretion applicable in “exceptional circumstances”. Paragraph 353B can be of relevance only to those who have no right to remain in this country and whose claims have been finally determined (because their appeal rights are exhausted and there are no unanswered submissions). The discretion is a safety valve, pursuant to which the Secretary of State may refrain from removing but only in such circumstances, which will necessarily be rare.

I think that the words “the decision maker has established whether or not they (i.e., the migrant’s further submissions) amount to a fresh claim under paragraph 353 of these Rules” must be read as “the decision maker has established that they do not amount to a fresh claim under paragraph 353 of these Rules”. If the Secretary of State accepts that the submissions amount to a fresh claim under paragraph 353, she will have to consider them; if she rejects them on their merits, and refuses leave to enter or to remain, the migrant has a right of appeal under section 82(1)(d) or (e) of the 2002 Act. Pending final determination of the claim, the Secretary of State will not remove the migrant.

My last observation is that paragraph 353B does not concern the decision to grant or to refuse leave to enter or to remain. It is concerned only with the decision to remove or not to remove. Whether a decision that removal is no longer appropriate must lead to the grant of leave to remain, and if so when and in what circumstances and what should be the terms of such leave, are not matters that arise in these appeals, and I say nothing about it. But it follows from this, and from the decision of the Supreme Court in Patel [2013] UKSC 72 [2013] 3 WLR 1517, that a failure to apply paragraph 353B will not render unlawful a decision to refuse leave to enter, or to refuse to extend leave, made at the same time as the decision to remove.

Turning to the matters in controversy, I reject the contention that paragraph 353B confers a discretion on the Secretary of State. In support of his argument, Mr Malik relied on the judgment of Sedley LJ in Mirza at paragraphs 18 and 19, but that case concerned the very different provisions of what was then paragraph 395C. It is implicit in section 84(1)(f) of the 2002 Act that the Secretary of State may exercise discretions relating to immigration and asylum other than those conferred by the Immigration Rules. The discretion not to remove a migrant with no rights to be here is not one that is subject to any Immigration Rule; it is a discretion exercised outside those Rules. I entirely agree with the Upper Tribunal on this point.

I also reject the submission that paragraph 353B of itself creates an obligation on the Secretary of State to carry out a review in the circumstances to which it refers. The wording necessary to create a duty is obvious, and there is no reason why paragraph 353B should not have expressly used them if it was intended to create a duty.

In my judgment, the basis for the creation of a duty, if there is one, is to be found in the Enforcement Instructions and Guidance issued by the Secretary of State, which in section 53.1 states:

“Exceptional circumstances should be considered in cases where an asylum or human rights claim has been refused, appeal rights have been exhausted and no further submissions exist, as part of the process of asylum case owners keeping their cases under review. In these cases paragraph 353B is to be applied.”

A failure to apply the Enforcement Instructions and Guidance is in general a failure to apply a policy and may render the decision resulting from that failure unlawful for the purposes of judicial review: see, e.g., The Queen on the application of Pratima Das v Secretary of State for the Home Department [2014] EWCA Civ 45 and IM (Nigeria) v Secretary of State for the Home Department[2013] EWCA Civ 1561 [2014] 1 WLR 1870. It is not easy to read the Guidance as creating a duty to keep all cases to which paragraph 353B may apply under review, particularly since the Immigration Rule itself refers to “a review”, which suggests that it is only when a decision is made, or a duty exists, to review a case that it applies. The Upper Tribunal said this:

“20.

Mr Hayes [Senior Home Office Presenting Officer] was able to assist with certain matters of which we had requested clarification. The word “review” in paragraph 353B was undefined. There was no definition in the legislation or the guidance. It was kept there so as to afford a wide discretion to the Secretary of State in reviewing paragraph 353B cases. Also, voluntary departure was seen as the initial choice of a migrant.

21.

As regards the phrase “the process of asylum case owners keeping their cases under review” at paragraph 53.1, there were only two circumstances where the Secretary of State would hold a review without a triggering factor, and these were first family cases where the case was unconcluded, where there would be a review every 36 months, and secondly where a case was six years old and unconcluded. In any other case there were no circumstances where a cold review would occur. In these relevant cases the person concerned would neither have been removed nor granted leave.

…

38.

We have set out above what we are told by Mr Hayes about the meaning of this phrase as understood by the Home Office. We think this must be right, given that we are dealing with cases where there are no outstanding further submissions and where appeal rights have been exhausted. There is no formal process of review, and the matter seems to us to be entirely a matter of discretion of the Secretary of State as to whether a decision maker conducts a review or not. We understand Mr Malik to agree with this point. If there is a review then it would appear to be an entirely internal matter. If the Secretary of State chooses to write to a claimant indicating that she has carried out a review but does not consider that the matters set out at paragraph 353B are such as to identify exceptional circumstances, meaning that removal from the United Kingdom is no longer appropriate, that is clearly not an immigration decision within the meaning of section 82(2) of the 2002 Act. Such a case would be one where an immigration decision had (probably) previously been made, since paragraph 353B requires appeal rights to have been exhausted, and a decision not to exercise a discretion in the circumstances envisaged in paragraph 353B is not a decision coming within section 82(2), and it does not fall within the statutory appeals system. It is, of course, a world away from cases where a person has made an application (or submissions) and awaits a result; it would also be different if the result of any review was that a decision was taken that a person should be granted some sort of leave. But, given that there are people who choose to remain in the United Kingdom when they have no right to do so, the existence of an interval of time during which their case may or may not be reviewed is inevitable; and a person who does nothing in that time to bring his case to the notice of the Secretary of State is obviously not a person who is entitled to any sort of further decision.”

However, whether there was a duty to carry out a review is irrelevant in all of the cases before us. In each case, the decision letter of the Secretary of State referred to the factors listed in paragraph 353B and stated that they did not justify a finding of exceptional circumstances resulting in removal no longer being appropriate. If there was a duty to consider those factors, it was amply complied with.

Furthermore, if a decision is lawfully made to remove at the same time as a decision to refuse leave claimed on Article 8 grounds, there is likely to be no sensible reason for a review to be carried out separately from the consideration of the claim for leave. In such circumstances, paragraph 353B will not apply. In any event, the factors referred to in that paragraph are likely to have been considered in the rejection of the Article 8 claim. It would be unnecessary for the decision maker to refer to those factors again, other than the statement that there are no exceptional circumstances justifying a decision that removal is not appropriate.

I would add that in this context, where ex hypothesi the migrant has no right to be here, and faces no real risk on return, and paragraph 353B is applied, I see no reason why detailed reasons or recitals of facts should be required. The reasons given in the letters in the present cases were adequate. Furthermore, in most if not all cases, the factors will necessarily have been considered: decision letters normally summarise the immigration history of the migrant, which includes the length of time here, whether his or her presence has been lawful or not and whether there was a failure voluntarily to leave. Unless the migrant has provided information about his character, conduct and associations the Secretary of State is unlikely to know anything about them, so there may be nothing to consider.

I do not think that the word “review” in paragraph 353B and in the Guidance is used in any technical sense. Where there is occasion to consider removal outside the context of any Article 8 or other claim, I would expect the decision maker to consider the factors listed in that paragraph when deciding whether to decide to remove. Conversely, if a claim for permission to appeal to be granted, it must be shown that the proposed appeal would raise an important point of principle or practice, or that there is another compelling reason for an appeal to be heard. If an application for permission to apply for judicial review of the decision to remove is brought on the ground that the paragraph 353B factors were not considered in the Secretary of State’s decision letter, but there is no sensible case for finding exceptional circumstances, I see no reason why permission to apply for judicial review should be granted.

It follows from my conclusion that paragraph 353B does not itself creates a duty on the part of the Secretary of State that a migrant may not appeal to the First-tier Tribunal under section 84(1)(f) of the 2002 Act on the ground that “the person taking the decision should have exercised differently a discretion conferred by Immigration Rules”. Section 113 of the 2002 Act defines “immigration rules” as “rules under section 1(4)” of the Immigration Act 1971 “general immigration rules”. If, as I have already stated, the only basis for a duty is to be found in the Enforcement Instructions and Guidance, that duty is not conferred by the Immigration Rules so defined. A decision by the Secretary of State that there are no exceptional circumstances justifying a finding that removal is no longer appropriate cannot be appealed under paragraph 84(1)(f). It also follows that the Tribunal cannot allow an appeal under section 86(3)(b) solely on the ground that it considers that the discretion should have been exercised differently, since the discretion is not one that may be one “against which [the] appeal is brought or intended to be brought”.

It follows from my conclusion that the factors listed in paragraph 353B were in fact considered in the case of each of these appeals that no question arises of the decision to remove being unlawful by reason of any failure to do so. It follows that no question of unlawfulness arises for the purposes of Article 8.2 or section 84(1)(e) or section 86(3)(a) of the 2002 Act.

For the above reasons, I would dismiss each of these appeals.

I would dismiss the appeal of Mr Singh for additional reasons. First, although the permission to appeal given by Laws LJ impliedly granted him an extension of time to appeal to this Court, it did not impliedly extend his time in relation to his late application to the Upper Tribunal for permission to appeal from the determination of the First-tier Tribunal, or in relation to his late application to the Administrative Court for permission to apply for judicial review. No basis has been put forward for this Court to conclude that the Upper Tribunal and the Judge of the Administrative Court were not entitled to refuse to extend his time. His failures to apply to the Upper Tribunal and the Administrative Court in due time are themselves sufficient for this Court to dismiss his appeal. Secondly, the contention put forward by Mr Becket is to the effect that paragraph 353B is so vague as to be unlawful. I reject this contention. That paragraph is perfectly clear, and is necessarily general in terms since it is addressing a residual class of case that does not come within the Immigration Rules themselves. Lastly, this contention was not made below, and was not the subject of the grant of leave by Laws LJ.

I add that I have read the judgment of Lord Justice Underhill in draft and agree with it.

I agree. I only wish to add one point about para. 353B. Ms Anderson submitted that the factors listed at (i)-(iii) were (unlike the much more extensive list in the old para. 395C) all “negative” in character and thus that their intention is to constrain (or at least guide) the exercise of what would otherwise be a general discretion not to remove migrants who had no right to remain under the Rules or the general law. On a literal reading that submission seems wrong: taking the example of head (i), migrants can have good character as well as bad, and a very long period of time spent in the UK for reasons beyond the migrant’s control (head (iii)) would surely in principle count in favour of non-removal. But I think that that is too literal. Para. 353B is not very well drafted, but it seems to me clear, reading it as a whole, that its essential purpose is indeed to identify specific points which will weigh in the balance against the exercise of the discretion not to remove a migrant, or to qualify the effect of factors that might otherwise weigh in its favour. Thus the point of heads (i) and (ii) is to make clear that (in short) bad character/conduct and non-compliance with conditions must always count against the exercise of the discretion. As for head (iii), the point surely being made is that time spent in the UK after the adverse immigration decision ought (at least generally) only to count in the migrant’s favour if his or her reasons for not leaving were beyond their control. I think this point worth making because I have observed a tendency for migrants or their advisers to treat the facts that they have committed no criminal offences or have complied with all conditions as if that created some kind of presumption in favour of non-removal “under para. 353B”. That is not the right approach. Para. 353B is not a kind of mandatory check-list of the same character as (albeit less comprehensive than) the old para. 395C. I do not say that good character or compliance with conditions are wholly irrelevant to an exercise of the discretion in question. But it is not the purpose of para. 353B to ensure that they are considered; and they are hardly likely to be significant factors by themselves given the exceptional nature of the discretion as explained by Sir Stanley Burnton at para. 24 of his judgment. Migrants or advisers making representations against removal in a case of this kind will need themselves to identify with specificity the exceptional circumstances on which they rely.

I agree with both judgments.