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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ali, R (on the Application of) v The Secretary of State for the Home Department [2014] EWHC 3967 (Admin) (27 November 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/3967.html Cite as: [2014] EWHC 3967 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
THE QUEEN ON THE APPLICATION OF SHAHBAZ ALI |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mayfair Solicitors) for the Claimant
Rory Dunlop (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 5 and 6 November 2014
____________________
Crown Copyright ©
Helen Mountfield QC :
Introduction
The decisions under challenge
Procedural history
Background
The Claimant's circumstances
'This decision is not an immigration decision under section 82. Section 82(2)(d) [of the 1999 Act] concerns 'a 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'. This is not the situation in this case, as the effect of the prior section 10 decision means that any existing leave to enter or remain in the United Kingdom was invalidated under section 10(8) so you have no leave to enter or remain at the time the decision to refuse to vary leave to remain was notified'.
The Legal Framework
Relevant legislation
"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a. the application for variation is neither decided nor withdrawn,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 applicant is in the United Kingdom against the decision on the application for variation (ignoring the 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).
(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section."
"(1) 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;
(b) he uses deception in seeking (whether successfully or not) leave to remain;
(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 "
"(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
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1) (b) of the Immigration & Asylum Act 1999 (removal of a person unlawfully in the United Kingdom)
(5) The right of appeal under section (1) is subject to the exceptions and limitations specified in this Part".
"(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 a kind specified in section 82(2)(c), (d), (e) (f), (ha) and (j) "
Enforcement Instructions & Guidance
" The evidence of deception should be clear and unambiguous in order to initiate action under section 10. Where possible, original documentary evidence, admissions under caution or statements from two or more witnesses should be obtained which substantiate that an offence has been committed before authority is given to initiate action under section 10 of the 1999 Act. The deception must be material in other words, had the officer known the truth, the leave would not have been given. The evidence must always prove to a high degree of probability that deception had been used to gain the leave, whether or not an admission of deception is made. The onus as always in these situations is on the officer making the assertion to prove his case" (emboldening in original, underlying added).
Analysis
The order of the removal and refusal decisions
What flows from the order of the removal and refusal decisions
Impact of the removal decision upon the refusal decision
" Khawaja establishes that the non-existence of a precedent fact relating to immigration status can deprive the decision-maker of power to decide and render any purported decision void "
Having extinguished the period of leaving by making a section 10 decision, the Defendant erred in purporting then to make a second decision to refuse to vary that leave, because no such leave existed to vary. In other words, since the underlying leave to remain had already been extinguished by the time the purported refusal to vary it was served, the refusal to vary was itself a nullity.
'no matter how the Secretary of State expressed herself, what she was doing was saying because our leave has been invalidated you do not have leave to remain and we cannot therefore vary it by extending the time
Standing back from the matter The Secretary of State has made a decision here under section 10(1)(b) [of the 1999 Act]. That carries with it a right of appeal but only from outside the United Kingdom. That decision invalidates any previous leave given and therefore there would be no need, and no legal provision, for a decision refusing the application to vary leave as there is no leave' (at [15]-[16]).'
Lewis J refused permission to apply for judicial review on the basis that the 'true decision' was a decision to remove under section 10 and (at [19]):
" There is in truth no separate legally operative decision to refuse leave to remain. The leave was invalidated by section 10(8)".
"A decision has been taken to remove you from the United Kingdom. As a result of the service of this decision, you no longer have any leave and so any outstanding application you made for variation of your leave does not need to be determined as there is no existing leave to vary".
Ground (b) was the removal decision an abuse of power; and
Ground (c) - should this court consider the question on the basis that the 'precedent fact' of deceit had not been proved to the requisite standard
Availability and appropriateness of judicial review
"The only coherent solution, it seems to me, is to continue to regard every question arising under section 10 as in principle both appealable and reviewable ...but to calibrate the use of judicial review, through the exercise of judicial discretion, to the nature of the issue or issues. In this way and in so far as I can see, in no other way the High Court can remain loyal to what was decided in Khawaja by consistently retaining jurisdiction to determine the existence of preconditions of liability to removal, as well as other questions of law apt for the High Court's determination, but can also respect the policy of section 82 by declining to entertain challenges on issues more apt for the appeal mechanism, whatever its hardships."
"there is no challenge to the fact that the decision to remove was made under section 10".
The two routes of appeal were 'distinct' and 'must not be blurred' (see para 36). RK, however, as Aikens LJ observed at paragraph 35, was a claim in which there was no challenge to the exercise of discretion to use the power under section 10 of the 1999 Act at all.
"In the judicial review proceedings . A challenge was made to the decision of the Home Secretary to use the deception route, enabling her effectively to stifle any appeal, rather than the variation route carrying a right of in-country appeal. Judge Thornton QC rightly in my judgment, granted permission to argue this. Had it been sought, permission would also have properly been granted to argue that the election of the Home Office, having used the deception route, to take the out-of- country point in order to stifle an appeal was a serious abuse of power. Once it is established that the point is good only when taken to take it in order to prevent the exposure of a shameful decision the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer is without doubt justiciable by way of judicial review".
Exercise of discretion in this case
Decision on permission to appeal