Court of Appeal decides scope of right of appeal for those refused leave to remain

4 March 2011

Depending upon what kind of leave it is, people who have "leave to remain” in the UK can usually apply to the Home Office for an extension of that leave to remain. In most cases – but not, strikingly, those comprising applications by people who have leave to remain granted under the Points Based System - they are required by the Immigration Rules to make their extension applications before the leave they have runs out.

The Home Office frequently refuses these applications. When they do so the decision is a decision "to refuse to vary leave to remain”. This is an "immigration decision” and anyone refused in this way can appeal to the First Tier Tribunal against it.

However the appeal is limited. What people can’t say in their appeals against the refusal to extend their leave is that their removal from the UK would be contrary to Rule 395C of the Immigration Rules.

Rule 395C requires the Home Office to take account of a range of circumstances relevant to the person concerned: his or her age, length of time spent living in the UK, any compassionate circumstances etc, before reaching a decision as to whether the person concerned should be removed from the UK.  

So what happens if you appeal against the decision to refuse to vary / extend your leave to remain and you lose?  Basically as soon as your appeal fails you have no leave to remain and you begin to "overstay”

This is a fairly serious matter. First of all it’s an offence (under section 24 of the Immigration Act 1971) and secondly, if you overstay for more than 28 days the United Kingdom Border Agency becomes entitled, under the Immigration Rules creating re-entry bans, to refuse any future application for entry clearance that you might make.(There’s a sliding scale contained in Rule 320 (7B) which dictates how long the ban on your re-entry to the UK will last).

The Secretary of State does have a power simultaneously to refuse to extend a person’s leave to remain and to decide to remove them from the UK. If she does this then obviously she has to consider Rule 395C before reaching the decision to remove, and in his or her appeal the person can tell the First Tier Tribunal that the decision is contrary to Rule 395C. But this power is infrequently used - and it wasn’t in the cases referred to here.

This scenario has led to several judicial review challenges to the Secretary of State’s practice. In those cases the applicants have objected to being left in a situation where, having been refused leave to remain, they’re effectively forced to break the immigration laws while they wait for the Secretary of State to make a further decision to remove them from the UK – against which they’ll be able to raise all the circumstances listed in Rule 395C at their appeals. 

In R (on the application of Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159 the Court of Appeal considered several appeals against the Administrative Court’s refusals to grant judicial review of these kinds of refusals of leave to remain.

The Court took account of the Secretary of State’s explanation for the practice of not using her power to make a decision to remove at the same time as a decision to refuse to vary leave to remain – which was that separating the decisions enabled people to leave the UK voluntarily without their being made the subject of a removal decision.

However the Court found that in most cases it would not be appropriate for the Secretary of State to delay the decision to remove in this way. It amounted to pressurising people to give up their legal right to appeal against their removal on the basis of an immigration rule which was directly relevant to the question of whether it was suitable to remove them. 

It would not be appropriate in all cases however. This was because people who applied for leave to remain wouldn’t have anticipated that their applications were going to be refused with the consequence that they would be faced with a decision to remove them. 

There was a way round this however, which involved using the practice of serving a "one stop” notice on people who were to be removed. This notice could be issued, and the potential removee could be invited to make submissions saying why they shouldn’t be removed which would then be considered by the Secretary of State before the actual decision to remove was made. 

The Court therefore allowed each of the appeals against refusal of judicial review. 

At the same time as it considered the appeals in the Mirza case the Court also considered the related appeal in R (on the application of ) Kerry Ann Veronica Daley-Murdock  v Secretary of State for the Home Department [2011] EWCA Civ 161. 

The applicant in Daley-Murdock had also been refused leave to remain in the UK. However when she had made her application for leave to remain her previous leave had already expired. She was (already) an overstayer. This meant that, unlike the applicants for judicial review in the Mirza case, she did not have any right to appeal against the decision to refuse leave to remain. 

She and her family would therefore have to wait and see whether the Secretary of State would make any decision to remove them from the UK. When and if such a decision was made, she would be able to appeal to the First Tier Tribunal on the basis that the decision was contrary to Rule 395C. 

In fact – the case under this Rule on the particular facts of the family’s case is strong, which explains the applicant’s wish to have a decision made in her case which she could appeal. As the Court noted the family includes two children, one of whom was born in the UK in 2003, the other having lived here since she was 9 months old when she entered in 2001. The Court stated simply that Parliament had plainly intended that people who had overstayed their leave to remain should not be entitled to appeal against any decision to refuse them leave to remain. 

However by the time the Court came to issue its judgment the Supreme Court had issued its judgment in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC4. Central to that judgment is the Supreme Court’s recognition that in all immigration decisions children’s best interests must be a primary consideration, and cannot simply be regarded as:

"one consideration to be weighed in the balance alongside other competing considerations”. 

The Court therefore found it appropriate, although dismissing the appeal, to point out to the Secretary of State that if and when a decision were to be made to remove the family the children’s best interests would have to be considered as a primary consideration. 

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