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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512 (09 May 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/512.html Cite as: [2014] WLR 401, [2013] EWCA Civ 512, [2013] 4 All ER 442, [2013] WLR(D) 170, [2014] INLR 117, [2013] Imm AR 1081, [2014] 1 WLR 401 |
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C5/2012/2275 |
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UT JUDGE LANE
[2012] UKUT 147 (IAC) (AA/08367/2009)
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BRIGGS
and
SIR STANLEY BURNTON
____________________
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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- and - |
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JAVAD ![]() ![]() |
Respondent |
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- and between – |
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JAVAD ![]() ![]() |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
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Zane Malik (instructed by Messrs Malik Law Solicitors) for Mr. Ahmadi
Hearing date: 22nd April 2013
____________________
Crown Copyright ©
Lord Justice Sullivan:
Introduction
Statutory framework
"47 removal: persons with statutorily extended leave
(1) Where a person's leave to enter or remain in the United Kingdom is extended by section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971 (extension pending appeal), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends.
(2) Directions under this section may impose any requirements of a kind prescribed for the purpose of section 10 of the Immigration and Asylum Act 1999 (removal of persons unlawfully in United Kingdom).
(6) In section 83(2) of the Nationality, Immigration and Asylum Act 2002 (right of appeal: general) after paragraph (h) insert –
(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave)."
"3 - General provisions for regulation and control
(1) Except as otherwise provided by or under this Act, where a person is not a British citizen
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(3) In the case of a limited leave to enter or remain in the United Kingdom, -
(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, …"
"3C Continuation of leave pending variation decision
(1) This section applies if –
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when –
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations –
(a) may make provision by reference to receipt of a notice,
(b) may provide for a notice to be treated as having been received in specified circumstances,
(c) may make different provision for different purposes or circumstances,
(d) shall be made by statutory instrument, and
(e) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
3D Continuation of leave following revocation
(1) This section applies if a person's leave to enter or remain in the United Kingdom –
(a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or
(b) is revoked.
(2) The person's leave is extended by virtue of this section during any period when -
(a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or
(b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)."
"4 – Administration of control.
(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument."
"10 – Removal of certain persons unlawfully in the United Kingdom
(1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer if -
(a) having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave"
"82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal
(2) In this Part "immigration decision" means - ……
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave)."
"105 Notice of immigration decision
(1) The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.
(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state-
(a) that there is a right of appeal under that section, and
(b) how and when that right may be exercised.
(3) The regulations may make provision (which may include presumptions) about service."
"4. - Notice of decisions
(1) Subject to regulation 6, [which is not relevant] the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable."
Regulation 5 prescribes the contents of a notice given under regulation 4, and regulation 7 makes provision for service. If the notice is served by post under paragraph 7(1)(c) it is deemed to have been served unless the contrary is proved on the second day (excluding any day that is not a business day) after posting to a place within the United Kingdom: regulation 7(4)(a) and (5).
"2. Decision on an application for variation of leave
For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is decided –
(a) when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002; or where no such notice is required,
(b) when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971."
"7. – Time limit for appeal
(1) A notice of appeal by a person who is in the United Kingdom must be given –
(a) if the person is in detention under the Immigration Acts when he is served with notice of the decision against which he is appealing, not later than 5 days after he is served with that notice: and
(b) in any other case, not later than 10 days after he is served with notice of the decision."
Notice of appeal is given by filing it with the tribunal (rule 6). On receipt of a notice of appeal the tribunal serves a copy upon the Secretary of State as soon as reasonably practicable (rule 12). Rule 8 prescribes the form and contents of a notice of appeal. Rule 8(2) provides that:
"8. – Form and contents of notice of appeal
(2) The notice of appeal must be accompanied by –
(a) the notice of decision against which the appellant is appealing or, if it is not practicable to include the notice of decision, the reasons why it is not practicable; and …."
The Upper Tribunal's determination
"a decision to administratively remove is made at the same time as a variation or curtailment decision. The section 47 decision should be included in the decision letter curtailing or refusing to vary leave."
"If the removal decision cannot be made contemporaneously with the decision regarding leave, the respondent will have only the short period of time prescribed in rule 7(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, within which to make and communicate the s. 47 removal decision. But, ….. the respondent will not, in practice, be able to assume she has the entirety of the period prescribed in Rule 7(1) within which to make a s. 47 decision, since as soon as the person concerned gives notice of appeal to the
First-tier Tribunal against the variation decision, his or her leave is no longer extended by s. 3C(2)(b) but, rather, by s. 3C(2)(c). As the respondent will not immediately be aware this has happened (see rule 12(1) of the 2005 Rules), the respondent can have no confidence that any s. 47 decision made after s. 3C(2)(b) leave has started to run will be a valid decision." (paragraphs 17 and 18)
"Where it not for the Immigration (Continuation of Leave) (Notices) Regulations 2006, it might have been possible to adopt a construction of s. 47(1) and s. 3C(2)(b), to the effect that, after an application has in reality been decided by the respondent, s. 3C(2)(b) applies for the purposes of s. 47, even before the decision is communicated in writing to the person concerned, which is the point at which he or she will realise that there is a right of appeal to the First-tier Tribunal. However, even without the 2006 Regulations such a construction would be open to serious objection. In the light of regulation 2 of those Regulations it is, I find, impossible to take that course. Until notice of the decision has been given in writing, the application has not even been decided, for the purposes of s. 3C(2)(a). Accordingly, s. 3C(2)(b) has no application, for the simple reason that there is no "decision on the application for variation."
The Secretary of State's grounds of appeal
(1) The Upper Tribunal erred in construing section 47 in the light of the 2006 Regulations.
(2) If the 2006 Regulations were relevant, the Upper Tribunal erred in adopting an interpretation which meant that Parliament in enacting section 47 had legislated in vain, an absurd result which the Upper Tribunal should have avoided by adopting the Secretary of State's construction of section 47.
(3) The Upper Tribunal's construction of section 47 was erroneous because it defeated the statutory purpose and intention of Parliament, and recourse to Hansard was justified under the rule in Pepper (Inspector of Taxes) v Hart [1993] AC 593 in order to establish Parliament's intention.
Discussion
Ground 1
Ground 2
Ground 3
"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."
Conclusion
Sir Stanley Burnton:
Lord Justice Briggs: