As the Appeal in Patel & Ors v Secretary of State for the Home Department  EWCA Civ 741 is pending in the Supreme Court I thought I would summarize very briefly the issues in leading cases in this area of immigration law for our Blog, which in Jackson LJ’s words “has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions”.
The two issues before the Court of Appeal in Patel  EWCA Civ 741 1) were that when refusing an extension application whether the Secretary of State is bound to decide, at the same time (or, possibly, very shortly afterwards), whether to make a removal direction, and 2) if she was so obliged, whether that can give rise to a right in the appellants to challenge her refusal of their extension application in the FTT. Both parties relied on irreconcilable decisions of the Court of Appeal in support of their cases as given below.
The appellants’ case was that, considering the Court of Appeal’s decisions of Mirza  EWCA Civ 159 as followed by the court in Sapkota  EWCA Civ 1320 both points must be resolved in their favour at least in this court. (As a result of Mirza and Sapkota the SSHD had adopted a practice of incorporating in a single written notice her decision to refuse to grant or to extend leave and her decision to issue removal directions. Later the Court of Appeal upheld in Ahmadi  EWCA Civ 512 earlier UT decision (referred in Patel as Ahmadi  UKUT 000147) that this practice of incorporating both decisions in a single notice is incompatible with the relevant legislation and therefore unlawful, without affecting the lawfulness of the variation decision: s47 of the 2006 Act has recently been amended in response to Ahmadi judgement).
In Patel the SSHD relying on AS (Afghanistan)  EWCA Civ 1076 and Lamichhane  EWCA Civ 260 took a position that both section 47 of the 2006 Act and section 120 of the 2002 act confer on her a right to make a removal decision and serve one-stop notice respectively and not an obligation.
Following consideration of the above decisions, in preliminary conclusions, the court summarized that despite underlying legislative policy of the 2002 Act in favour of one-stop notice scheme the issue turns on the structure and language of the legislation, and in the light of the language used and particularly the word ‘may’, section 120(2) of the 2002 Act appears to confer a statutorily unfettered discretion, and section 47(1), for the same reason, appears to permit, but not require, a decision to be made.
The court also summarized the proposition that SSHD must observe the public law and human rights norms in connection with the exercise of her powers under section 120 of the 2002 Act and section 47 of the 2006 Act. The court identified the problems with accepting the proposition that rejection of an extension application would be invalidated by a delayed removal direction, and rejected this proposition.
Contrary to the impression of this argument on this Court in Mirza the Court in Patel was not impressed here by the argument that the failure of the SSHD to deal promptly with the question of the removal decision following decision on extension application will make people overstay and commit criminal offence thereby. The reason for rejecting this argument was that many people make extension applications after their leave to remain has expired, section 3C of the 1971 Act would not apply, so that such a person commits a criminal offence notwithstanding the fact that he or she has made an extension application. Thus, many people to whom the reasoning in Mirza and Sapkota would apply would be in breach of the criminal law anyway so the failure of SSHD to consider removal decision does not make them commit this crime. For these reasons and others given in the judgement the court decided for the SSHD and dismissed the appeal.
The appellants appealed to the Supreme Court and the case was heard on 3 July 2013. The issues before the Supreme Court include the question whether it is lawful for the SSHD to refuse leave to remain without at the same time or shortly thereafter also making and serving removal directions. If it is not lawful, whether such an omission renders the decision to refuse leave to remain (extension decision) unlawful.
Pending appeals in the Supreme Court in Alam (Appellant) v Secretary of State for the Home Department (Respondent) and Anwar (Appellant) v Secretary of State for the Home Department (Respondent) raise similar and additional issues for which we await a decision.