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||Neutral Citation Number:  EWCA Civ 159
||Case Nos: C4/2010/2034, C4/2010/2035,
IN THECOURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
LORD JUSTICE MOSES
Re Appellants 1, 2, 3 & 4
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Re Appelant 5
 EWHC 2002 (ADMIN)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
|| THE QUEEN ON THE APPLICATION OF
1. AMIR MIRZA
2. SAMIR ABBASI
3. POOJA BAROT
4. DIVYESH PATEL
5. BHUMILA MOTEE
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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Mr Zane Malik (instructed by Malik Law Chambers) for the Appellants
Mr David Blundell (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 25 and 26 January 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Sedley:
- The question raised by these conjoined appeals is whether the Home Secretary, when refusing to extend a foreign national's leave to remain in the United Kingdom, ought at the same time or promptly thereafter to make a removal decision which, if adverse, will enable them to appeal without first breaking the law by overstaying. This court (Sedley, Jacob and Lloyd LJJ) has previously held, in TE (Eritrea)  EWCA Civ 174, that it may in some cases be unfair and hence unlawful for the Home Secretary not to do so, but not that she is obliged in all cases to do so.
The story so far
- The route by which the issue has finally reached this court is an unusually complicated one. In proceedings brought by the first four of the present appellants (together with a fifth individual who is no longer a party) and anonymised as SA (Pakistan)  EWCA Civ 210, this court (Laws, Sedley and Patten LJJ) held that there was no jurisdiction in the AIT, nor therefore in this court, to entertain an appeal against a failure of the Home Secretary to take a decision, albeit the decision, once taken, would be appealable. The court, however, deferred the operation of its order for long enough to enable four of the appellants to seek equivalent relief against the Home Secretary by judicial review.
- This they did. Their applications came before Moses LJ, sitting as a judge of the Administrative Court, who granted permission to apply but dismissed the applications: see  EWHC 2002 (Admin). It is against this decision that the first four appellants now appeal by permission of Maurice Kay LJ.
- Their appeals have been joined with that of the fifth appellant, Bhumila Motee, whose case has reached this court by a different route. In November 2009, when the four appeals mentioned above were pending in this court, Toulson LJ, on renewal following refusal on the papers by Richards LJ, granted permission to appeal – see  EWCA Civ 1351 – against the dismissal by the AIT of Ms Motee's appeal against the decision that she had breached the rules by changing her employer and so was disqualified from obtaining indefinite leave to remain. Richards LJ had refused permission in part because the present point had not been taken below.
- Following this court's decision in February 2010 in the case of the other four appellants that the issue described in §1 above had to be canvassed, if at all, by judicial review, notice was given that the present court would be asked if necessary to constitute itself a divisional court of the Queen's Bench (see the Senior Courts Act 1981, s.66) in order to entertain the same arguments on Ms Motee's behalf as were already the subject of permission to appeal. Ms Motee also has an article 8 point which is without question apt for appeal.
- Reliance is now placed, on her behalf, on a decision of this court, AS (Afghanistan) and NV (Sri Lanka)  EWCA Civ 1076, which was not cited to this court in SA (Pakistan) and which held by a majority that an appeal to the tribunal is not limited to grounds canvassed with the Home Office but includes any issue raised in response to the standard s.120 notice. There is arguably some distance between that proposition and the proposition which SA (Pakistan) establishes, but there is no need to travel this road now because the Home Secretary raises no objection to our entertaining the issues before us, whether in an appellate or a review jurisdiction. In the result there is nothing going to jurisdiction either in the arguments or in the concession before us. With the Home Secretary's concurrence we have granted Ms Motee permission to apply for judicial review, and we can turn to the substantive issue in all five cases, sitting, as the issues may require, as a court of appeal and as a divisional court of the Queen's Bench.
- For present purposes the facts can be taken shortly. Each appellant was refused leave or further leave to remain, having up to that point been lawfully present, Ms Barot and Mr Patel as Tier 1 migrants, Mr Abassi and Mr Mirza as students, Ms Motee as a work permit holder. Each was refused leave on grounds within the rules and none now challenges those grounds. It follows that each appellant is liable to removal if he or she does not leave voluntarily. But in none of their cases have removal directions been given, with the result that they are unable to advance the grounds they would wish to rely on under rule 395C to oppose removal. It is common ground that the rule may offer an escape from the consequences of a minor or accidental infraction which has brought about the refusal of leave to remain.
- In Ms Motee's case, those grounds include the submission that her breach was innocent and insubstantial: she was permitted to work for one firm of accountants but began to work for another. In the other cases, as Moses LJ observed (§23), no submissions were advanced in response to s.120 "one-stop" notices as to why each appellant should not be removed. But that does not mean that the material which it is intended to put before the Home Secretary, if need be on an eventual appeal against removal directions, is not likewise capable of influencing a decision under rule 395C. Thus Mr Mirza, who had been legitimately judged not to be making satisfactory progress as a student and so had been refused further leave to remain, accepts that he was struggling but asks for one more try. Mr Abassi (who was not, as it happens, given a one-stop notice) ticked the "No" box for criminal convictions on his application for further leave when he had incurred two fines with penalty points for road traffic offences. He says that he did not appreciate that this constituted a criminal record. Ms Barot, who entered lawfully as a highly skilled migrant, was refused leave to remain as a general migrant because she did not disclose a criminal conviction incurred by her husband. She herself, it is submitted, is nevertheless an honest and hardworking individual who ought not on this account to be removed. Mr Patel, who had entered as a student and asked for leave to remain as a postgraduate, turned out to have acquired a bogus diploma from a recognised college. His case, which derives some support from the immigration judge's findings, is that he himself was deceived by the college.
- In my view, all five cases contain enough material to found an argument for non-removal under rule 395C. The strength of the respective arguments is not our present concern. Mr Mirza was initially refused further leave to remain in July 2008; Mr Abassi in January 2009; Ms Barot in November 2008; Mr Patel in January 2009; and Ms Motee in June 2008. Nothing turns on the passage of time since then, since this has been brought about principally by the appeals and subsequent litigation. What is at issue is whether, this apart, the Home Secretary was entitled to defer indefinitely or for a significant period the question of removal.
The statutory scheme and the rules
- The provisions with which we are concerned are those which govern the making of two kinds of decision: a decision whether a person qualifies under the immigration rules for extension of their leave to remain, and, if they do not qualify, a decision as to whether they are to be removed if they do not depart voluntarily.
- Each of the appellants failed a test set by the rules for a variation by way of extension of their leave to remain. A decision to this effect when taken by the Home Office is an immigration decision within s.82(2)(d) of the Nationality, Immigration and Asylum Act 2002. By s.84 such a decision is appealable if, but only if, one of the grounds set out in s.84(1) can be advanced. These are:
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities);
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
- If such an appeal succeeds, no further problem arises. If it fails, or if no such appeal is brought, the individual's presence in the United Kingdom becomes illegal. Their obligation is then to leave voluntarily, and many do. But those who do not may, and in many cases do, appeal to the tribunal. Their right to do so is given by s.82(2), which includes in the meaning of "immigration decision":
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a)(b)(ba) or (c) of the Immigration and Asylum Act 1999 (removal of a person unlawfully in the United Kingdom).
But it is self-evidently only when such a removal decision is taken that the right of appeal arises.
- In cases such as those now before the court, reliance is principally based in such an appeal on rule 395C, which provides:
Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.
In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.
- An issue has emerged before us about the character and effect of this rule, which it may be useful to deal with at this point. Mr Blundell for the Home Secretary has submitted that rule 395C itself generates no right to remain under the rules: what it does is afford grounds for the grant of leave to remain outside the rules. He accepts, as I understand it, that where human rights or asylum grounds for staying here are raised, s.84(1)(g) will operate. But any other grounds derived from rule 395C, he contends, must fall under paragraph (e) – error of law – and not (a) – misapplication of the rules. He does not accept that it falls under (f) – a mistaken exercise of discretion - because he contends that a favourable rule 395C decision takes the Home Secretary outside the rules.
- This argument, for which we have been shown no authority, runs counter to a well-established understanding reflected in the determination of the AIT (C.M.G.Ockleton D-P, SIJ Drabu and SIJ Grubb) in EO (Turkey)  UKAIT 00062, the headnote of which reads in part:
(8) In determining an appeal against a decision (whether before or after 20 July 2006) to give directions under s 10 (as distinct from directions for removal of an illegal entrant) the Tribunal should first consider whether the decision shows, by its terms, that the decision-maker took into account the factors set out in paragraph 395C and exercised a discretion on the basis of them. If it does not, the appeal should be allowed on the basis that it was not in accordance with the law and that the appellant awaits a lawful decision by the Secretary of State. If the decision was made properly, the Tribunal should secondly consider whether the removal of the appellant would breach his rights under the Refugee Convention or the ECHR, and, if not, thirdly whether the discretion under paragraph 395C should be exercised differently, ….
- Explaining their decision, the tribunal wrote:
41. These provisions of the Immigration Rules have had effect since 2 October 2000. In their case, the change on 20 July 2006 was certainly not substantive. The change was to insert into paragraph 395C the words which, as we have seen, were before that date in paragraph 364. Until then, paragraph 395C had simply contained a reference to those words in paragraph 364. Following their deletion from paragraph 364, they needed to be set out in full in paragraph 395C.
42. The "old learning", if we may so express it, on those subject to removal under s 10 was that their rights of appeal were severely limited. They could appeal on the ground that they were not in truth liable to removal, or on the ground that their removal would breach the Refugee Convention or the Human Rights Convention, but little else was available to them. During the course of argument relating to the scope of the right of appeal against deportation decisions, it emerged that the Secretary of State's view was that the scope of an appeal against a decision to remove under s10 should not be so narrowly construed. After taking instructions again over the short adjournment, Mr Eicke confirmed that the Secretary of State's view was that in an appeal against a decision to issue removal directions under s10 of the 1999 Act (which is an appealable decision under s82(2)(g) of the 2002 Act) all the grounds of appeal set out in paragraph 84(1) may be deployed, including that relating to the exercise of discretion.
43. We agree with this reading of the statutory provisions; but this is also an important concession. That is why we record it here, even though it has not immediate bearing on the matters we have to decide.
44. So far as the appellate process is concerned, two conclusions follow from it. The first is that, where the decision to give removal directions under s10 does not clearly demonstrate a proper consideration of the matters set out in paragraph 395C and the exercise of a discretion to make the decision, the decision will be one which is challengeable on the ground that it is not in accordance with the law, and the result should normally be that an appellant's appeal is allowed on that basis only, leaving the Secretary of State to make a new and lawful decision in accordance with the Immigration Rules.
45. Secondly, if the decision was procedurally proper and was one which was open to the Secretary of State to make, the appellant can nevertheless succeed in an appeal by showing that the discretion to make the decision, conferred by s10 of the Act and appearing also in paragraphs 395A to D of the Immigration Rules, should have been exercised differently.
- It is troubling to find the Home Secretary now advancing an opposite argument about the meaning and effect of rules which are her own and of legislation promoted by her predecessor in office. For my part I would agree both with the meaning advanced by the Home Secretary in EO and with the AIT's reasons for accepting it.
- One aspect of the argument is Mr Blundell's submission that a grant of leave following consideration of a case in the light of rule 395C is not a grant of leave pursuant to or under the rule, but is a grant of leave outside the rules. This court gave some attention to the nature of the immigration rules in Pankina v Home Secretary  EWCA Civ 719. At §17, for reasons which had been spelt out, we concluded that the immigration rules had over time changed from policy to quasi-law. Rule 395C, albeit catholic in scope and demanding no specified outcome in any one case, requires everything relevant to removal to be taken into account "[b]efore a decision to remove under section 10 is given". S.10 of the 1999 Act provides that a foreign national who remains beyond the time limited by his or her leave to remain "may be removed from the United Kingdom". The rule thus spells out what public law in any case implies into any such elective power affecting personal security: that it must be exercised with proper regard to all material factors. The rule highlights eight particular examples of these, but is not limited to them. Thus it may well be material, indeed critical, to the question of removal that what has disqualified the applicant from a variation of his or her leave to remain is a pardonable or inconsequential breach of the rules.
- When a Home Office decision-maker or, in turn, an immigration judge considers whether, on whatever grounds, a foreign national who has failed to secure a variation of his or her leave but has not left voluntarily ought now to be removed, they are in my judgment implementing rule 395C, as they are required to do in the interests of a consistent and fair exercise of the s.10 power of removal. There is no meaningful way in which any consequent decision not to remove someone lies outside rather than within the rules. It may well be that a grant of limited or indefinite leave to remain following a decision not to remove is an exercise of prerogative power for which the rules make no express provision. If this is all that Mr Blundell means, I do not disagree, but it is not the same as the proposition that a favourable 395C decision is itself a decision outside the rules.
- I am unable to accept Mr Blundell's argument that everything on which a foreign national may seek to rely in opposition to removal can and therefore should be raised on appeal against the refusal of leave to remain. So to hold would run counter to all received understanding, including the earlier decision of this court in the case of the first four appellants. If one thing is clear, it is that removal cannot be decided on until liability to removal is established. The question is how soon after.
- Section 3C of the Immigration Act 1971 provides that where a person applies for variation of his leave to remain before its expiry and is still awaiting a decision when it expires, the leave is extended pending the decision. Section 47(1) of the 2006 Act provides that where there is such a statutory extension of leave, the Home Secretary "may decide that the person is to be removed … if and when the leave ends". In other words, the Home Office has been given express statutory authority to begin dealing with removal from the moment the initial leave expires. The manifest object in such cases is that a decision not to vary leave, which brings the s.3C extension to an end, should be accompanied or promptly followed by a decision on removal.
- These provisions, together with ss.85(4), 85 and 96 of the 2002 Act, make it clear that what is usually called the "one-stop" policy of discouraging multiple appeals is part of the legislative scheme of immigration control. This court has already so held in one form or another, largely at the Home Secretary's urging, in such cases as JM (Liberia)  EWCA Civ 1402, MS (Ivory Coast)  EWCA Civ 133 and AS (Afghanistan)  EWCA Civ 1076. Where a policy is not simply – as it ordinarily is - a course adopted in the exercise of its powers by the executive but an objective set by primary legislation, it becomes the duty of the courts as well of the executive to give effect to it.
- By s.120 of the 2002 Act the Home Secretary is empowered, though not required, to give written notice requiring a person who has applied to remain here to state, if they have not already done so,
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
- All the appellants save Mr Abassi were served with one-stop notices. An example can be found in the letter sent to Ms Barot:
One–Stop Warning – Statement of Additional Grounds
- You must now inform us of any reason why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave.
- You do not have to repeat any reasons you have already given us but if you do have any more reasons you must now disclose them.
- If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused.
- If, a later date, the reasons why you think you should be allowed to stay in this country change, or new reasons arise, you must tell us as soon as possible.
- If you later apply to stay here for a reason which you could have raised earlier, you may not be able to appeal if the application is refused.
In my judgment the power given to the Home Secretary by s.120 to serve a one-stop notice is not merely discretionary or elective. In addition to promoting good public administration, it is there for a purpose which Parliament has made part of its legislative policy and is to be exercised accordingly except where there is a lawful reason not to do so. As was said in TE (Eritrea), §18, the state has an interest in not multiplying administrative proceedings and appeals. It also has duties of fairness towards individuals whose lives are on hold, and who may well be committing a criminal offence by their mere presence, while they await an appealable decision.
- This on going requirement to state your reasons is made under section 120 of the Nationality, Immigration and Asylum Act 2002.
It has been central to Mr Blundell's case for the Home Secretary that, with or without a s.120 notice, a foreign national is not only free to advance all his or her grounds for being allowed to remain at any stage but is required by the statutory scheme to do so. He also submits that there are no grounds which are available solely in opposition to removal. For reasons I will come to I doubt the latter proposition. The principal proposition is no doubt right (though it needs qualification), but it does not address the issue before us, which is whether, even if the case for non-removal is advanced promptly, the Home Secretary can legitimately defer a decision on removal for months or years. In order to make this good, Mr Blundell has to establish that the obligation which rests on foreign nationals to bring their full case forward promptly has no counterpart in an obligation on the Home Secretary to deal with it promptly.
A refusal of variation carries a 10-day moratorium during which the applicant may leave without being criminalised. If within those 10 days he or she gives notice of appeal, the time is extended pending the appeal. Thereafter, it is submitted by the appellants, temporary admission under paragraph 21 of Sch.2 to the 1971 Act can regularise the applicant's situation while a removal decision is considered. This provision, which by itself does no more than release an entrant from detention, is treated by virtue of s.24 of the 2006 Act as a grant of leave to enter for the purposes of ss.15(1) and 21(1) of the 2006 Act (employment penalties and offences).
It thus appears to be open to the Home Secretary to bridge any gap between a refusal of further leave to remain and an eventual removal decision by granting temporary admission. But the potential use of this seemingly significant power in the present context has not been explored in evidence or in argument before us. The Home Secretary doubtless has no wish to be propelled into using it in the thousands of cases similar to those before the court. The appellants for their part are seeking not to bridge the time gap but to close it.
It is necessary, in order to decide this issue, to start from TE (Eritrea), a decision which itself draws on the judgment of this court (Waller, Laws and Leveson LJJ) in JM (Liberia)  EWCA Civ 1402. It is not necessary, however, to set out the content of that decision or the surrounding and consequential issues, which are set out and analysed with great clarity in the judgment of Moses LJ. His conclusion, with which I agree, was that TE did not lay down a uniform obligation on the Home Secretary to decide on removal at the same time as refusing leave to remain, and that there were sound reasons why the court should not now do so. He also noted that none of the appellants had given their explanations directly in response to the s.120 notices served on them (Mr Abassi excepted).
There is no contest in this court that TE (Eritrea) decides, and decides only, that, there being no legal inhibition on considering both breach of the immigration rules and the giving of removal directions in close succession, fairness in that particular case required it to be done. But the court expressly left it open to the Home Office in other cases to keep the two exercises apart, recognising that there might in some cases be good reason for doing so.
The present appeals are accordingly argued at two levels. At the more ambitious level it is submitted that we ought now to extend TE (Eritrea) by making sequential decision-making a general rule. Alternatively it is submitted that what was true of the appellant in TE is equally true of each of these appellants, and that the same result should follow. There are in addition grounds based on article 8 of the European Convention on Human Rights, but for reasons which will appear I do not think that these add materially to the key arguments.
In TE , with the concurrence of Jacob LJ, I said:
17. All these considerations appear to me to apply with equal cogency in the present case. If there is nothing to stop variation and removal being considered together – and it is accepted that in the present case there is nothing – then the practical utility of deciding them in immediate sequence and letting the AIT be seized of the issues compendiously on appeal is now recognised by the change in the Home Secretary's statutory powers. The main argument that Mr Kovats has been able to deploy against it is that it will not necessarily condense or curtail appeals because by the time an appeal against a compendious decision on leave and removal has been concluded, new grounds for opposing removal may have arisen, requiring a fresh decision.
18. This seems to me both a counsel of despair and a somewhat eccentric approach to public policy. The state has, or ought to have, an interest in not multiplying administrative proceedings and appeals, especially where the facts and issues overlap and where segregating them creates uncovenanted difficulties for the individual. If, by inviting submissions as to why removal should not follow if the application for variation of leave is refused, a comprehensive decision can be arrived at and if necessary appealed, there can be few cases in which this would not be the right course to take. The possibility of new grounds for non-removal arising is an ever-present one which a two-stage approach cannot eliminate.
19. But to say this is not to say that the Home Secretary could never fairly or rationally take variation and removal in separate stages. I simply do not know. There may be cases in which it is both practical and fair to segregate them. What can be said is that the present appellant's desire not to find herself breaking the law in order to resist removal is an entirely reasonable one in which the Home Secretary, for reasons both of practice and of public policy, ought to concur. Whatever else may determine the choice of course by the Home Secretary, it cannot properly be random or dictated by simple administrative convenience.
20. It was recognised in the course of argument that the decision on this appeal might have an impact on the exercise of the powers introduced by s.47 of the 2006 Act. We accordingly gave Mr Kovats leave to introduce in writing any further submission on this score, and Ms Khan leave to respond to it. In the event, while putting in a helpful note on the legal position of an overstayer, Mr Kovats has not found it necessary to take up the court's offer.
21. While therefore the appellant cannot, in my judgment, establish as a general principle that the Home Secretary must always deal with variation and removal in tandem, it is cogently arguable that there was no good reason for not doing so in her case and that segregating them is unfair to her. The Home Secretary has undertaken to the AIT that there will be an in-country right of appeal if the §395C decision is adverse; but Ms Khan points out that once that right is exhausted the problem of being an overstayer pending the making and contesting of removal directions will revive unless further leave to remain is then granted.
22. Because this issue arose for the first time at a very late stage of the proceedings, the Home Secretary has not so far addressed it on the basis on which it needs to be addressed. She should now have the opportunity to do so. The court will welcome counsel's proposals as to the form of order which will best accomplish this.
Some of the evidence which was wanting in that case has been supplied in this case. In a witness statement which Moses LJ found influential, a senior executive officer in the UK Border Agency, Christopher Sainsbury, described the Home Office's arrangements for dealing with leave to remain and removal. Leave to remain, he explained, involves no asylum or human rights issues and is dealt with by three geographically separate teams of caseworkers, most (not all) of them untrained in enforcement.
In cases dealt with in Croydon, on refusal of leave to remain the file will generally be passed to a local immigration team for enforcement action against applicants "should their appeal be dismissed and they fail to leave voluntarily". (In answer to a question from Sullivan LJ, Mr Blundell confirmed that enforcement officials operate a rebuttable presumption in favour of removal.) But in some cases refusal of leave under the rules is followed directly by consideration of Convention or compassionate grounds for granting leave to remain, and in out-of-time cases rule 395C is applied. It is, it appears, in the case of applications brought in time that refusal is not followed promptly by a removal decision because there may be an appeal.
In Sheffield, cases are dealt with similarly, save that no consideration is given under rule 395C to out-of-time cases. In Liverpool, where there is a higher proportion of executive officers, it is the same, but (apart from cases in a backlog of long-term overstayers) no consideration is given to any cases under rule 395C. In the backlog cases, however, executive officers consider everything in sequence: "If the application is refused, section 10 enforcement papers are served with the refusal decision."
This evidence appears to establish two things. One is that there is no reason of principle why in the generality of cases removal should not be dealt with promptly following refusal of leave to remain – a course which, as this court has already held, fairness ordinarily requires. The other is that the UK Border Agency, which is an executive agency of the Home Office, is at present so organised that this is not generally done and could not be done without significant reorganisation.
It is evident that one of the reasons for this is that it creates an incentive (Mr Blundell prefers to say opportunity; Mr Malik for the appellants prefers to say pressure) for foreign nationals to leave without waiting for an enforcement decision which they can if necessary challenge on appeal. But there is no reason (notwithstanding the contrary experience of Mr Sharma, to which I will come) to doubt the thrust of Mr Sainsbury's evidence that in 2009, out of not quite 54,000 non-asylum removals and departures, no more than 12,500-odd were enforced: in other words, that perhaps 40,000 foreign nationals, including but not confined to those without leave to remain left without the need of removal directions. It remains therefore uncertain how many persons in the appellants' situation decided to leave rather than await removal directions.
Since we are sitting in part as a divisional court, we have read the further evidence, which was not before Moses LJ, of Sanjeev Sharma. It was filed in the Daley-Murdock appeal which we have heard in tandem with these, but Mr Blundell has helpfully raised no objection to our treating it as part of the evidence in all six cases. Mr Sharma, a partner in the specialist solicitors' firm J.M.Wilson, recounts that his firm deals with a large number of applications (some 500 in 2010 alone) for leave to remain in the absence of a right under the rules to such leave. He says this about these cases:
4. I have further asked colleagues at ground level for their experiences of this type. The feedback ranges from those who have acted in cases where a decision to refuse has been made but 11 months on no decision to remove has been made despite a clear indication that the unsuccessful applicants are not intending to leave voluntarily. Colleagues advise that in some cases there are no responses to pre action protocol letters demanding a decision is made. Another colleague complains that three cases were refused in mid 2009 and a decision to remove is still awaited. There is a general consensus amongst practitioners that the Respondent's policy of not making either a tandem decision or one within a reasonable and stipulated timescale thereafter does add greatly to the protracted length of these proceedings, does create unnecessary delay and backlog and does add great strain and tension to clients and their children who in the interim have no choice but to wait for the Respondent to make a decision, if she ever does, before they can contest it before an independent Tribunal. Examples of complaints that I have dealt with consistently include inability to register for the provision of medical care including with the local GP, children not being able to enrol at school because of an inability to confirm status and employment related issues where employment suddenly ceases because of an inability to confirm status. From the replies that I have received there seems to be a consensus amongst practitioners of bewilderment as to why the administrative task of making a decision to remove cannot be made simultaneously at point of refusal or even diarised to be followed up on the receipt of an acknowledgment of the decision and confirmation that those unsuccessful clients will not leave voluntarily or in the absence of a reply.
5. The view that the Respondent does not need to make a decision to remove and therefore will not make a decision simply because she is not compelled to do so, is one that I have been unable to find any support from any practitioner at ground level. This manner in dealing with applications simply adds to an unhelpful position where many people whilst technically in the UK unlawfully may well stay purely to exercise the right of appeal when it comes. I have a number of clients who have indicated that whilst they do not agree with the decision at first instance would return voluntarily to their home country if and only if the decision is upheld on appeal by an independent Tribunal. The Respondent's imposed delay simply prolongs any period of criminality that unsuccessful applicants may be exposing themselves to sometimes out of necessity
6. The uncertainty caused by the Respondent acting in this way appears contrary to her own policy when dealing with applications involving children, in particular the need to make timely and expeditious decision in all cases where children are involved to avoid children having to live in a state of limbo. The document entitled Every Child Matters: Change for Children: November 2009 expressly confirms this.
7. As a result of the many cases that this firm had conduct of which were left in a half way world awaiting a decision to remove, this firm has adopted a policy of issuing claims for Judicial Review on the grounds of delay. It is now the practice of the Administrative Court to stay matters presently before them on this point pending the outcome of this appeal. In some instances the Treasury Solicitor has agreed with this firm to make a decision within 3 months, which thereby gives a right of appeal to the Tribunal. Were it not for the action taken by this firm the Respondent would not have escalated or responded to the repeated requests that a decision be made
8. It is my experience that even when it is made clear to the Respondent those unsuccessful applicants will not leave voluntarily without recourse first to the Tribunal this makes little or no difference to the Respondents consistent and what many conceive to be a deliberate policy not to issue a subsequent removal decision.
Mr Sharma goes on to question the logic of segregating human rights and asylum from other issues. He recounts that he has dealt with many cases where, contrary to the pattern described by Mr Sainsbury, rule 395C has been considered but still no s.10 decision has been taken. Finally, he says that he cannot recall a client who has left voluntarily rather than appeal.
It is evident that each of these appellants is being denied a removal decision, following a legitimate refusal of leave to remain, as part of a generalised practice, either manifested in or deriving from the internal organisation of the Border Agency, of separating the two decisions by a frequently substantial period of time.
Such a practice is in my judgment contrary to the policy and objects of the legislation, which are, as nearly as can be done, to deal compendiously with all issues concerning the lawfulness of a person's continued residence in the United Kingdom. A practice of deferral for a short period may meet a legitimate rationale of allowing or encouraging foreign nationals who no longer have leave to remain to depart voluntarily, but this cannot extend to a contravention of statutory policy or to the application of unfair pressure on individuals to forfeit what may be their legal rights.
While rule 395C is predicated on factors "known to the Home Secretary", Mr Blundell has fairly accepted that factors raised on appeal against a removal decision become known to her at that point and so can be relied on. It is therefore not fatal to any of these appeals that the arguments which the appellants want to raise on appeal if removal orders are made have not been previously advanced. It is true that the one-stop notices required all reasons for staying to be put forward at the start, but it hardly lies in the mouth of the respondent to insist on this when it is her executive agency which is frustrating the purpose of the notices by deferring the removal decision. Moreover, most of the reasons relied on here arise out of the grounds for refusing leave to remain and so could not be initially advanced.
There is no reason in the present appeals to depart from the proposition which was accepted in TE (Eritrea) that there may be cases in which segregation of the two decisions is nevertheless justified. But no such justification has been advanced in any of the present cases: they appear to fall into a gap which in law ought not, at least in such cases as these, to be there.
This is one reason why in my judgment (as in that of Moses LJ in the Administrative Court) the court should not go the whole distance urged by the appellants. In my view, however, it can and should grant relief limited to their particular cases. The other reason for going no further than this is that the court has to be extremely cautious about making orders which require the executive to take organisational steps, especially steps with cost implications, which the court has neither the expertise to prescribe nor the resources to oversee. If as a consequence of relief granted in these cases the Home Secretary decides to change her executive agency's mode of operation so as to head off further challenges, that will be a matter for her.
With one important qualification, these appeals appear to me to fall within the holding in TE(Eritrea) (§18) that there can be few cases in which the right course will not be to invite submissions as to why removal should not follow if variation of leave to remain is refused, and to make a compendious decision on both questions. As Sullivan LJ pointed out in argument, it would not be unlawful to include in s.120 notices a modest but reasonable time limit for responding, with a warning that a removal decision will be taken at the end of that time. The qualification is that, while many contingent reasons (typically article 8 reasons) for non-removal will already be known and can be advanced when leave is sought, those which by definition cannot yet be known include explanations of or excuses for factors which have brought about an unanticipated refusal of leave to remain. All five of the present appeals are arguable examples of this situation, which plainly calls for a pause between refusal of leave and the taking of a removal decision. Here too I see no reason why a sensible time limit should not be put on the receipt of submissions on removal in response to the decision on leave to remain. The need for an opportunity to explain or excuse the breach of rule is an aspect of fairness entirely distinct from the prolongation of removal decisions. But the emphasis here is on the word "pause": there is no legal justification for routinely putting removal on prolonged or indefinite hold.
As to article 8, it may follow that an unjustified deferral of a decision on removal, being contrary to law, makes it impossible to justify the disruption of family or private life caused by what Mr Malik submits is the presumptive removal that follows refusal of leave to remain. But there is no need to travel into article 8 once unlawfulness is established, and there are obvious difficulties about presuming a removal which, if the law is observed, may never happen. As far as Ms Motee is concerned, her article 8 claim remains part of her still undetermined case for non-removal.
I would therefore allow these appeals. Before deciding what form of order to make I would wish to have counsel's written submissions in the light of our judgments.
Lord Justice Rimer:
Lord Justice Sullivan:
I also agree.
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