Paragraph 395C of the Immigration Rules deleted

In three cases heard last year, which culminated in November of 2011 with the judgment in Sapkota & Anor (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 1320 the Court of Appeal grappled with the question of what the UKBA had to do when presented with applications for permission to remain in the United Kingdom made by people who either had never had leave to remain or whose leave had expired by the time they made their applications.

 

The issue in all these cases was whether the UKBA was entitled simply to refuse these applications saying that the applicant didn’t qualify for leave to remain and pointing out that since the applicant did not have leave to remain at the time of his or her application he or she was not allowed to appeal to the First Tier Tribunal against the decision or whether the UKBA was required to decide whether or not to remove the person from the UK at the same time.

 

The UKBA plainly did not want to have to make decisions of the latter kind, because if they did they were obliged to take all of the factors listed in paragraph 395C of the Immigration Rules into account. If they decided to refuse the application it obviously had to be a defensible decision, because everyone has the right to appeal to the First Tier Tribunal against a decision to remove him or her.

 

In many cases people make these applications to the UKBA having built up considerable links with the UK during the time they had been here. The stronger cases involve families who have children who have been born in the UK.

 

In Sapkota the Court of Appeal decided that any decision to refuse leave to remain which did not also consider removal, and therefore paragraph 395C, was unlawful. It is this judgment which has led the Secretary of State for the Home Department, via Statement of Changes in the Immigration Rules HC 1733 to decide to abolish paragraph 395C, and with it the UKBA’s troublesome obligations.

 

At the same time a new paragraph 353B, entitled "Exceptional circumstances” is being added to the Immigration Rules.

 

The changes come into force on 13 February 2012.

 

The Secretary of State’s reasons for taking this step are explained in the explanatory notes to HC 1733, where it is said that because it had been the practice of the UKBA when it refused an application for leave to remain to simply tell the applicant that he or she had no basis of stay in the UK and should therefore leave – the effect of the Court of Appeal’s judgments:

 

"is to require the UK Border Agency to make approximately 20,000 additional removal decisions each year.

 

The Secretary of State takes the view that it is not appropriate for the UKBA to have the responsibility of identifying and considering all factors known to the Agency which may be relevant to the issue of a person’s removal from the UK. So this obligation is done away with.

 

The new paragraph 353B operates in tandem with the existing paragraphs 353 and 353A of the Immigration Rules, which are concerned with new asylum and human rights claims. Basically it warns that when it considers any such "fresh claims” the UKBA will also consider the applicant’s character and the time the applicant has spent in the UK and whether he or she has complied with previous conditions of leave to enter or of temporary admission.

 

So the UKBA has, as it can, turned the tables on applicants by getting rid of its policy carefully to consider all of the factors listed in paragraph 395C and at the same time made staying in the UK prior to seeking to regularise one’s stay a matter to which weight will be given in deciding whether to remove that person from the UK.

 

The UKBA points out that the obligations in paragraph 395C are covered by "primary legislation” anyway, with the implication that the paragraph itself is redundant. The Statement of Changes doesn’t say what this primary legislation is but most obviously it must be the Secretary of State’s obligations under Article 8 of the European Convention on Human Rights (which the Human Rights Act 1998 enforces) and furthermore, those under section 55 of the Borders Citizenship and Immigration Act 2009.

 

While that is definitely true what has of course been taken away by this measure is the discretionafforded to the UKBA / Secretary of State by paragraph 395C. Until these changes it was open to anyone made the subject of a removal following consideration under paragraph 395C to say, in his or her appeal against such decision, that the Secretary of State’s discretion should have been exercised differently. If the Immigration Judge hearing an appeal took the view that the Secretary of State’s discretion should have been exercised in favour of an Appellant, he or she could allow the appeal on that basis.

 

As well as taking that discretion away the Secretary of State has also, it appears, provided a new discretion which can only work against applicants, which is the provision in the new paragraph 353B under which the UKBA is entitled to invoke the applicant’s not having had a good reason for having remained in the UK to explain a decision to proceed with his or her removal.

 

As can be seen from the articles on this site, the geography of immigration control shifts all the time. Anyone considering making any application to the UKBA is strongly urged to seek professional legal advice.