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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BM, Re Application for Judicial Review [2011] ScotCS CSIH_32 (27 April 2011)
URL: http://www.bailii.org/scot/cases/ScotCS/2011/2011CSIH32.html
Cite as: 2011 SC 726, [2011] CSIH 32, 2011 SCLR 669, 2011 GWD 16-393, [2011] ScotCS CSIH_32

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Paton

Lord Hardie

Lord Bracadale

[2011] CSIH 32

P1988/08

OPINION OF THE COURT

delivered by LORD BRACADALE

in Reclaiming Motion

by

B Z M

Petitioner and Reclaimer;

For Judicial Review of a decision

of

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

_______

Petitioner & Reclaimer: Carmichael, Q.C., Komorowski; Anderson Fyfe

Respondent: Lindsay; Office of the Solicitor to the Advocate General

27 April 2011

Introduction


[1] The petitioner and reclaimer, who is a citizen of
Malawi, came to the United Kingdom on 5 December 2003 and was granted leave to enter for six months. On 18 May 2004, prior to its expiry, the petitioner made an application to extend the leave to enter. By virtue of section 3C of the Immigration Act 1971 his leave was extended pending the determination of the application. In the event, the application has never been decided.


[2] A condition of leave to enter was that the petitioner would not take up employment. From 2004 onwards he was in breach of that condition by undertaking employment as a care assistant and on 23 November 2008 he was served with a notice of an immigration decision to remove him under Section 10 of the Immigration and Asylum Act 1999 ("section 10"). Removal was set for
2 December 2008. The Immigration Factual Summary attached to the Removal Directions was in the following terms:

"You arrived in the United Kingdom as a visitor on 5 December 2003 and [were] granted leave to enter for six months. You submitted an application for further leave to remain as a student on 18 May 2004. You have not attempted to contact the Home Office since submitting the above application. You admitted under caution that you had worked in the United Kingdom as a care assistant since 2004. You came to light on 24 November 2008 when you were arrested during a UKBA enforcement visit to Flat 11, 16 Heron Street, Glasgow. You were served with illegal entry papers on 24 November 2008 and placed into Sole Immigration Service Detention on that date. You are currently detained at Dungavel Immigration Removal Centre pending Removal to Malawi. Removal Directions are set for 2/12/2008."

There was no dispute that the reclaimer had been working in breach of the condition of his leave to enter. Accordingly, as at the end of 2008, his position was that his application for variation of leave had not been decided, but he was subject to a notice of removal under section 10. In terms of sections 82 and 92 of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") refusal of an application for variation of leave is an immigration decision which is subject to a right of appeal to the tribunal while the person is in the United Kingdom (an in-country right of appeal) while a notice of removal under section 10 is an immigration decision which is not subject to appeal to the tribunal while the person is in the United Kingdom; his right of appeal is exercisable only after he has been removed (an out-of-country right of appeal).


[3] The reclaimer sought judicial review of the notice of the immigration decision to remove him. The principal issue before the Lord Ordinary was whether, in the circumstances in which he was placed, the petitioner had an in-country right of appeal or whether his right of appeal could be exercised only after he had been removed from the
United Kingdom. The petitioner's contention that he did have an in-country right of appeal was rejected by the Lord Ordinary and it has not been renewed before us.


[4] The second argument advanced before the Lord Ordinary was that, on the assumption that the petitioner had no right to an in-country right of appeal, the respondent was under a duty to give reasons for choosing to proceed by way of removal of the reclaimer under Section 10, rather than deciding the application for variation of leave. The respondent had failed to give reasons for her choice to proceed in that way. The Lord Ordinary's rejection of this argument was the subject of the reclaiming motion.


[5] The Lord Ordinary dismissed the argument on three grounds. First, no decision as between routes was involved and therefore there was no need to give reasons. Secondly, if there was such a decision there was no need to give reasons; the reclaimer could easily work out what the reasons were. Thirdly, in the event that reasons were required adequate reasons were given.

Relevant statutory provisions and policy
Immigration Act 1971


[6] Section 3C of the Immigration Act 1971 provides:

"(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 ..."

Immigration and Asylum Act 1999

[7] Section 10 provides:

"(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;

...

(8) When a person is notified that a decision has been made to remove him in accordance with this Section, the notification invalidates any leave to enter or remain in the United Kingdom previously given to him."

Policy

[8] The Immigration Directorates' Instructions set out the respondent's policies in relation to the use of section 10 and the curtailment of leave provisions. Chapter 9, section 5, paragraph 2.2 is in the following terms:

"Although the provision to curtail exists where a person fails to observe the conditions of leave to enter or remain, it would be more usual to proceed direct to administrative removal for breach of conditions ... (section 10) Curtailment should only be considered where the person's actions are not so serious as to merit enforcement action, but where it would be inappropriate to let him remain for the duration of his leave."

Immigration Rules

[9] When making a decision to remove a person under Section 10 the Secretary of State requires to have regard to the factors included in Rule 395C of the Immigration Rules which stipulates:

"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:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment records;

(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 365 to 368 must also be taken into account."

Appeals to the tribunal: Nationality Immigration and Asylum Act 2002

[10] Provision as to rights of appeal against immigration decisions are contained in Section 82 of the 2002 Act. The relevant provisions for present purposes are Section 82(1) and (2)(d),(e) and (g):

"82(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,

...

(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."

Section 92 of the 2002 Act provides for the place from which such a right of appeal can be exercised. So far as relevant for present purposes Section 92 provides:

"(1) A person may not appeal under Section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this Section applies.

(2) This Section applies to an appeal against an immigration decision of the kind specified in Section 82(2)(c), (d), (e), (f), (h), (ha) and (j)."

Accordingly, a person such as the petitioner who was subject to removal under section 10 had only an out-of-country right of appeal.

Reclaimer's submissions

[11] The contention of the reclaimer as petitioner before the Lord Ordinary was that the Secretary of State could, instead of using Section 10, have decided to refuse the outstanding application for extension of leave which would have given the reclaimer a right of appeal within the United Kingdom. There must have been a decision as to which route to choose and this was a decision for which reasons ought to have been given. A further refinement of the argument was developed before us. Miss Carmichael, Q.C., on behalf of the reclaimer, submitted that there were, in fact, three options available to the respondent: option 1 was removal under Section 10 which would require the respondent to have regard to the factors in Rule 395C but would deny the reclaimer an in-country right of appeal. Option 2 was to refuse the application for extension which would give rise to a within
UK right of appeal but not access to the factors in Rule 395C. If, thereafter, the Secretary of State decided to remove there would be an out-of-country right of appeal. Option 3 was to consider the two issues at the same time which would give rise to an in-country right of appeal and allow the factors in Rule 395C to be taken into account. Under reference to TE (Eritrea) v Secretary of State for the Home Department [2009] INLR 558, Miss Carmichael submitted that consideration of the two issues at the same time would have been of benefit to the applicant and would have been an example of good administration. On any view there was a choice to be made and that choice had to be justified. There was nothing to show that the Secretary of State had ever addressed other options apart from a Section 10 removal.


[12] Miss Carmichael acknowledged that there was no authority directly in point but submitted that, as a matter of principle, where there were various options open to a decision maker and she opted for one of these, there must necessarily be a decision in making that choice. Under reference to Qin Yu v the Secretary of State for the Home Department [2008] EWCH 3072 (Admin), Miss Carmichael submitted that the decision as to which power to use was amenable to judicial review. In Qin Yu a person who had extant leave was found to be working in breach of her conditions of leave. The Secretary of State had power to curtail leave in terms of the Immigration Rules, paragraph 323, which would confer an in-country right of appeal. Instead, the Secretary of State proceeded under section 10. The court recognised that the availability of an out-of-country right of appeal would normally exclude recourse to judicial review to challenge a decision under section 10 but went on to examine the decision on Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). While recognising that this was a rationality challenge rather than a reasons challenge Miss Carmichael submitted that if the choice of proceeding solely on the basis of section 10 could in appropriate circumstances be subject to judicial review on the basis of reasonableness it followed that exercise of the choice must involve the making of some sort of decision for which it would be possible to give reasons.


[13] Miss Carmichael sought further support for the proposition that there was a choice which was subject to review in the case of Anwar v Secretary of State for the Home Department [2010] EWCA Civ 1275, although she accepted that the facts in that case were extreme.


[14] At paragraph [107] of his Opinion the Lord Ordinary noted that a decision as to which route to take was not one in respect of which notice or reasons were required in terms of the Immigration (Notices) Regulations 2003. Miss Carmichael accepted that the route decision was not included in the regulations but submitted that that was not surprising because it was not an appealable decision within the scope of the legislation and it was only in the case of appealable decisions that notice in terms of Regulation 4 of the 2003 Regulations was required. In these circumstances she submitted that the 2003 Regulations were not of any assistance.


[15] Miss Carmichael submitted that there was a duty to give reasons in order that the person concerned would be in a position to take advantage of judicial review (Chief Constable of Lothian and Borders Police v Lothian and Borders Police Board 2005
SLT 315; Stefan v General Medical Council [1999] 1WLR 1293).

Respondent's submissions

[16] Mr Lindsay, on behalf of the respondent, submitted that the reasoning of the Lord Ordinary was correct. He submitted that the true nature of the reclaimer's complaint was that there had been a failure to decide the application to extend leave. It would have been open to the reclaimer to have challenged that failure by judicial review. There was no ambiguity with respect to the employment for which there was ample evidence. In a letter from the Chief Immigration Officer to the solicitors acting for the reclaimer dated
30 November 2008 it was made clear that the breach was proved and that the decision to proceed to removal was both lawful and proportionate. Mr Lindsay submitted that this letter made it clear that the respondent had had regard to the published policy and to the factors in Rule 395C.


[17] In the light of the clear and admitted breach of the condition of leave to enter proceeding under section 10 was simply an identification of an applicable statutory power. It was an error to characterise this as a choice of routes. Mr Lindsay pointed out that the reclaimer had not mounted an ultra vires challenge or a rationality challenge.


[18] In any event, it would, Mr Lindsay submitted, have been obvious to the reclaimer and his advisers that the basis of the decision to proceed under section 10 was the admitted breach of the condition. If there was a duty to give reasons it was a modest duty and was fulfilled in the circumstances. It would be perfectly plain to the reclaimer that the reason for the decision was a breach of the conditions of his leave to enter and that the material considerations taken into account included the published policy.


[19] As to the approach suggested in ET (
Eritrea) v Secretary of State for the Home Department (supra) Mr Lindsay accepted that the policy did not prevent consideration of the two issues at the same time but submitted that the starting point in a case such as that of the reclaimer was to go straight to section 10.


[20] Mr Lindsay went on to submit that failure to give adequate reasons did not automatically lead to the conclusion that the decision must be reduced. Reduction was a discretionary decision. In the case of a person who did have a duty to give reasons but did not do so, the court might decline to reduce the decision. He drew attention to what was said by Lord Brown in paragraph [36] in South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953:

"... A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

There was no prejudice here as it must have been crystal clear as to why section 10 was used. In addition, there was available an alternative remedy: it would be open to the reclaimer to challenge by judicial review the failure to decide the outstanding application for extension.

Discussion

[21] In our opinion the circumstances of this case disclose that the reclaimer was in clear breach of his leave to enter. In terms of the stated published policy of the respondent such a breach provided a clear justification for the exercise of the power of removal under section 10. A public authority such as the respondent may have a wide range of powers. Particular circumstances may indicate that it is appropriate to use a particular power. That is precisely what occurred in this case. There was a serious breach of the conditions of leave to enter, which breach was sustained over a significant period of time. The breach had been admitted by the reclaimer. It was the clearly stated policy of the respondent that such a breach should result in removal under section 10. In these circumstances, it seems to us that no decision arose to be made as to whether to choose the section 10 route rather than the route of refusing the application for variation. In exercising the power of removal under section 10 the respondent would, of course, require to have regard to the published policy and to the factors identified in Rule 395C. It was not suggested that she had failed to do that.


[22] Turning to the cases on which Ms Carmichael relied, we note that in TE (
Eritrea) v Secretary of State for the Home Department (supra) the appellant applied for variation of leave which was refused. She exhausted the in-country appeal process. The notice of refusal of variation made it clear that if her appeal failed she would be removed to Eritrea. When her appeal was refused she became an overstayer with the associated problems of that status. At para 18ff Lord Justice Sedley said:

"[18] ... 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 of both practice and of public policy, ought to concur."

The circumstances in the reclaimer's case are very different. In ET(Eritrea) there was no breach of a condition. The difficulties in the case were such that considering the questions of variation of leave and removal together would have made for good administration and would have been of advantage to the appellant. It would have avoided the difficulty created for the appellant, namely, that if she wished to resist removal she had to do so as an overstayer. In the case of the reclaimer no such difficulties arise. The reclaimer was in clear and serious breach of a condition of leave and the published policy made it clear that a person in that position was subject to removal under section 10. As Lord Justice Sedley pointed out in ET(Eritrea) at para [19], there may be cases in which it is both practical and fair to segregate the procedures.


[23] One of the grounds relied on in the judicial review in Qin Yu v the Secretary of State for the Home Department (supra) was that the defendant had failed to follow her own policy by removing the claimant under section 10, rather than curtailing her leave under Paragraph 323 of the Immigration Rules. The court required to consider whether the immigration officer did act lawfully in Wednesbury terms by deciding to proceed under section 10. At paragraph [40] Wilkie J said:

"...The first logical question is whether it was lawful for [the immigration officer] to proceed under section 10, rather than paragraph 323, on the basis that the claimant's actions did or did not naturally fall within paragraph 323, namely not so serious as to merit enforcement action but where it would be inappropriate to let her remain for the duration of her leave.


[41] In my judgement, the officer was entitled to view this as a section 10 case. The breach of condition alleged was working full time for a period of the order of six months in clear and persistent breach of the conditions upon which she had been granted leave to remain as a student. Therefore, it was not a trivial or a venial breach if it were a breach."

This case is concerned with the issue as to whether the decision to proceed under section 10 was a rational decision in Wednesbury terms. It is not concerned with the question as to whether the Secretary of State was required to give reasons for proceeding under section 10 rather than deciding the variation application. For that reason this case does not assist us in deciding whether a decision was made in respect of routes in the reclaimer's case, or whether, in the event that such a decision was made it was necessary to give reasons.


[24] In Anwar v Secretary of State for the Home Department [2010] EWCA Civ 1275 two foreign nationals, one from
Namibia and one from Pakistan, enrolled as students at the London School of E-Commerce, which at the time of their enrolment was recognised by the Home Office as a bona fide institute. It was later removed from the register because it was found to be issuing bogus qualifications and providing no real training. The Home Office decided to remove the students from the United Kingdom on the ground that they had obtained leave to remain by deception. The Asylum and Immigration Tribunal found that both had acted honestly. In seeking reconsideration the Home Office contended that the immigration judge had no jurisdiction because the students had no in-country right of appeal. Before the Court of Appeal the deception claim was withdrawn. It is clear from the report that what was being considered in this case was the proposition that the Home Office had chosen the deception route rather than the variation route in order to prevent the exercise by the students of an in-country right of appeal, which choice would have amounted to a serious abuse of power. We do not consider that this extreme case is of any assistance to a consideration of the question before us.


[25] While we agree with the Lord Ordinary that no such decision as is contended for by the reclaimer is mentioned in the legislation, we are not persuaded that much assistance one way or another is to be gained from an examination of Immigration (Notices) Regulations 2003 which governs appealable decisions.


[26] Esto a decision was made by the respondent as to which procedure to follow, the question arises as to whether it was necessary to give reasons for that decision, and, if so, whether the reasons given were adequate. It is convenient to answer these questions together. It is necessary to have regard to the purpose of a requirement to give reasons. In Stefan v General Medical Council (supra), a decision of the Privy Council, Lord Clyde, delivering the judgment of the Committee, said at p 1300:

"The advantages of the provision of reasons have been often rehearsed. They relate to the decision-making process, in strengthening that process itself, in increasing the public confidence in it, and in the desirability of the disclosure of error where error exists. They relate also to the parties immediately affected by the decision, in enabling them to know the strengths and weaknesses of their respective cases, and to facilitate appeal where that course is appropriate."

In order to satisfy these purposes what is required by way of reasons? The reasons must be sufficiently clear to meet the purposes. A party who seeks judicial review of a decision must have sufficient understanding of the reasons for the decision to be able to formulate a challenge to it. The extent to which reasons require to be detailed will depend on the circumstances of the particular case. In Stefan Lord Clyde went on at page 1301 to note that:

"What will suffice to constitute the reasons is a matter distinct from the obligation to give reasons, and there can clearly be circumstances where a quite minimal explanation will legitimately suffice."

The appropriate test is that set out by Lord President Emslie at page 348 in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345:

"The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taking into account in reaching it."

Applying that test in the circumstances of the reclaimer's case we have no difficulty in agreeing with the Lord Ordinary that, in the light of the admitted breach of a condition of leave and the terms of the published policy, if it was necessary to give reasons for a decision to proceed under section 10 rather than deciding the application for variation, adequate reasons were given.


[27] Even if we had been satisfied that there had been a failure to give reasons in this case we would have declined to reduce the decision of the respondent. We would have adopted the approach set out by Lord Brown in the passage in South Bucks District Council v Porter (No. 2) (supra) to which our attention was drawn by Mr Lindsay. We are satisfied that the reclaimer has suffered no prejudice. It would have been clear to the reclaimer and his advisers why section 10 was used. In addition, there was available an alternative remedy: the reclaimer could have challenged by judicial review the failure to decide the outstanding application for extension.

Decision


[28] For the reasons set out above we refuse the reclaiming motion.


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