Removal on prolonged or indefinite hold unjustifiable :Tier 1 migrants, students ,work permit holder
Removal on prolonged or indefinite hold unjustifiable
R (Mirza & Ors) v SSHD [2011] EWCA Civ 159
The Court of Appeal considered the appeals of the five claimants in this case, all of whom had been refused leave to remain in the UK. The claimants had all been in the UK on a lawful basis up until the refusal of their applications for leave to remain (consisting of Tier 1 migrants, students and a work permit holder). Each of the appellants is liable for removal unless they leave voluntarily. The Secretary of State for the Home Department (herein after referred to as the SSHD) failed to make removal decisions for the claimants meaning the appellants were unable to rely on rule 395C in order to challenge removal.
In this case, the Immigration Judge held that all the claimants had grounds to challenge removal under rule 395C however; the court was concerned with whether the SSHD could defer indefinitely or for a significant period, the question of removal. They court looked at two types of decisions:
- The decision whether the applicant qualified for leave to remain which,
- If they didn't, the decision as to whether they should be removed from the UK if they did not leave voluntarily
Section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 determines what an immigration decision is and on what grounds an appeal can be brought. If an appeal is not brought, then the applicant becomes illegal in the UK (unless they leave voluntarily). Those who do not leave voluntarily may appeal under s.82 (2) which includes the definition of an 'immigration decision'. From this section it transpires that only where a removal decision is taken can a right of appeal arise. Before a decision to remove is made, the SSHD must consider rule 395C. This provides that regard must be had to relevant factors including:
- Age
- Length of residence in the UK
- Strength of connections to the UK
- Personal history, character, conduct, employment record
- Domestic circumstances
- Criminal records
- Compassionate circumstances
- Any representations received on behalf of the applicant
The SSHD (respondents) argued that rule 395C in itself did not generate a right of appeal. Instead, it affords grounds for leave to remain outside the rules.
The court provided that, where a decision maker was considering whether a person, who was refused leave to remain and who had not left voluntarily, they were effectively implementing rule 395C ad they are required to do in the interests of justice and before exercising the power of removal. The Immigration judge stated that there was no 'meaningful way' that a decision not to remove someone lies outside rather than within the rules. Section 3C of the Immigration Act 1971 provides that where a person applied for further leave before the expiry of their existing leave, their leave is extended whilst they are waiting for a decision. Section 47(1) of the 2006 Act provides that where there is a statutory extension of leave, the SSHD may decide that the person be removed 'if and when the leave ends. Therefore, the SSHD have an express authority to deal with removal when a decision is being made. Therefore, the objective is that a decision should be promptly followed by a removal decision.
The court stated that it was not discretionary for the SSHD to serve a section 120 one stop notice it is part of the 'legislative scheme of immigration control' and the SSHD had a duty to promote 'good public administration'.
Conclusion
Short periods of deferral may be a legitimate means of encouraging refused applicants to leave voluntarily however; this cannot be taken to mean that these applicants must forfeit their legal rights. The court adopted the decision in TE (Eritrea) and provided that there may be cases where a segregated decision can be justified. However, a short 'pause' between the decision to refuse the application and to remove the applicant would be more sensible as there is 'no legal justification for routinely putting removal on prolonged or indefinite hold'.
Accordingly, the appeals were allowed.
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