Update | Immigration: Removal appeals

Decisions on the legislative basis to remove from the UK those with no perceived leave to remain or enter have been the subject of appeals over the last few months. At the heart of these decisions from a practical perspective is whether the claimant has to leave immediately or whether there is the possibility of another immigration decision and thus another appeal. This may of course have other consequences including the claimant becoming an overstayer, becoming destitute and the possible adverse consequences for future applications to return to the UK.

In Ahmadi (section 47 decision: validity; Sapkota) [2012] UKUT 00147 (IAC) the Upper Tribunal held that a removal decision under section 47 Immigration, Asylum and Nationality Act 2006 cannot be made until written notice of the decision to refuse to vary that person’s leave to remain has been given to that person. The SSHD does not agree with this decision and is seeking permission to appeal to the Court of Appeal but the decision stands at present.

Building on this Adamally and Jaferi (section 47 decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC) reviewed the relevant legislation, summarised the background and referred to relevant Court of Appeal authority, in particular Patel and others v SSHD [2012] EWCA Civ 741. The appeal in Adamally proceeded on the basis that a decision refusing further leave to remain may stand on its own and is not rendered unlawful if it is accompanied by a removal decision. They remain two separate decisions, made under separate statutory powers and carrying separate rights of appeal. It is therefore incumbent upon the tribunal to reach a conclusion upon each decision.

This may result in one being refused and one being allowed but reasons are to be given in each. This means that practitioners have to be prepared to argue each decision with evidence as appropriate.

In most if not all cases this will mean a full reasoned decision on evidence will be made with regard to the “variation appeal”, and, following Ahmadi, it appears clear that the “section 47 decision is not lawful if it is in the same document”. Para [12] of Adamally sets out clearly the reasons for this: “…section 3C Immigration Act 1971 extends the relevant leave by three steps, set out in section 3C(2). They are (a) up to the date of decision; (b) the time when an appeal could be brought; (c) the time when any appeal is pending.

The section itself provides for the interpretation of when an application is “decided” to be dealt with by regulations and the regulations make it clear that the making of the decision involves the giving of the notice required by the Notices Regulations. Until that notice is given, period (a) is still running; and time during which an appeal may be brought has not begun. Section 47 permits a decision to be made only during period (b) if the decision is on the same piece of paper as the decision refusing leave, it has been made too early: period (a) is still running and period (b) has not yet begun.”

Adamally concluded: “When a removal decision purportedly made under section 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave:

(i) the section 47 decision is unlawful, but

(ii) the decision refusing leave is a separate decision, that

(iii) requires determination;

(iv) section 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions into one appeal, but

(v) section 86 of that Act allows and requires the determination to reflect differences in outcome.”
 

It is of course unlikely that this is the end of this particular series of decisions on removal decisions. An area that has still to be explored is section 86(4) Nationality Immigration and Asylum Act 2002:

“For the purposes of subsection (3) [the requirements that the tribunal must allow the appeal in so far as it thinks that a decision against which the appeal was being brought was not in accordance with the law or a discretion exercised in decision making should have been exercised differently] a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.”

Removal of children

In Ahmad and others (removal of children over 18) [2012] UKUT 262 (IAC) the UKBA had served removal directions under the provisions of section 10(1)(c) of the Immigration and Asylum Act 1999 purporting to remove children who were over the age of 18 as the family members of an adult who was being removed under section 10(1)(b).

The children of four families, over the age of 18, the parents of which were subject to removal under section 10(1)(b). Age is not defined in section 10; the issue considered by this case was whether family within the meaning of section 10(1)(c) should be limited such that only those children under the age of 18 fell within in.

The legislative history of the section was considered and in addition to drawing attention to the less than clear drafting of the legislation concluded that although children aged over 18 can remain members of a family (for example in article 8 terms), for the purposes of section 10(1)(c) there is no power to remove such children.

Issues of dependents and section 10 were considered by the Court of Appeal in the unreported RJ (India) and others v SSHD (6 December 2012). The Court of Appeal, in reaching its decision, considered MS (Palestinian Territories) v Secretary of State for the Home Department [2010] UKSC 25. RJ involved parents who were served with notices under section 10(1)(a) as overstayers and their two children who were served with notices under section 10(1)(c) and 10(3) as their dependants, at the same time.

The Court of Appeal confirmed what had been said by the Upper Tribunal: there was a critical distinction between removal decisions and removal directions. It will be recalled that MS considered whether the specifying of a particular country or territory in a notice of an immigration decision to remove an illegal entrant within the meaning of section 82(2)(h) of the Nationality Immigration and Asylum Act 2002 is an integral part of the decision. MS [23-27] draws attention to section 84 and the clear distinction between an immigration decision that a person is to be removed from the UK and removal pursuant to removal directions in consequence of an immigration decision.

In RJ the Court of Appeal concluded that there was nothing to prevent directions being given or a decision to issue directions under 10(1)(a) and (c) being taken at the same time but that the dependants’ removal from the UK could only take place after the decision to remove the claimants had been taken.

Although not a removal decision, the case of R (on the application of Nirula) v First-tier Tribunal [2012] EWCA Civ 1436 considered a closely related issue of in-country appeal rights. The claimant had been granted entry as a work permit holder and in October 2008 he obtained indefinite leave to remain.

In August 2010 he was arrested, detained and served with forms stating that he was an illegal entrant and was due to be removed as an illegal entrant. He was informed that he could exercise his rights of appeal “after removal”. He appealed, claiming that he had an article 8 right of appeal. Prior to this statement in his grounds of appeal he had never previously invoked the ECHR.

Longmore LJ reviewed the construction of the legislation and commented that although it may be the first time that the point had been raised before the Court of Appeal but it had been considered in SS(Turkey) [2006] UKAIT 00077 and R (Rainford) v SSHD [2008] EWHC 2474 (Admin). He concluded that the wording of section 92(4) of the Nationality Immigration and Asylum Act 2002 required claims for asylum and human rights based leave to remain must precede the notice of appeal; it was not sufficient to raise the claim in the notice.

It was also submitted by the claimant in this appeal that the tribunal had no jurisdiction to take the point regarding jurisdiction of its own motion, rather the assertion that there was no jurisdiction had to be expressly taken by the SSHD. The claimant relied upon Anwar v SSHD [2011] 1WLR 2552. Longmore LJ rejected this submission and held that the jurisdictional point may be taken by the tribunal as much as by the SSHD.

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