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Introduction
In Patel and Ors, the Supreme Court will decide whether it is lawful for the Secretary of State to refuse an application for leave to remain without, at the same time or shortly afterward, making a decision to remove the individual from the UK. If it is found to be unlawful, the Court will consider whether the decision to refuse the application is retrospectively invalidated by the failure to make a decision to remove.
These are issues that have vexed immigration lawyers and their clients for some years and have produced a significant number of (sometimes conflicting) decisions. The fact that they are now before the Supreme Court will no doubt cause many to breathe a sigh of relief.
Background
To those unfamiliar with the “impenetrable jungle” of immigration law, it may appear strange that immigration lawyers might wish to compel the Secretary of State to make a decision to remove their clients from the UK. The rationale underpinning this approach relates to the right of appeal attached to the decision to remove the individual.
Where an individual applies to vary or extend their leave before it expires and has a right to appeal against a refusal, they can appeal only on the grounds specifically raised in the application. This tends to prolong cases and delay enforcement since the applicant is entitled to appeal the refusal of the initial application on this limited basis and then make another, separate application raising further arguments. When the Secretary of State makes a decision to remove, a right of appeal is generated that allows new arguments to be raised.
Where an individual living illegally in the UK makes an application for leave to remain, they do not usually have a right to appeal against a refusal. If they are unwilling to leave and a decision to remove is not made, they are left in “limbo”. This sometimes takes years and during this time their position is very precarious. They are committing a criminal offence by remaining in the UK and they are unable to work or, of course, to claim benefits. The Secretary of State claims a legitimate expectation that some refused applicants will leave voluntarily (thus saving her the cost of a removal) but the reality is that many do not. Many believe they have a case and prefer to risk remaining in the UK until a removal decision is made and they are given a right of appeal. Appeals of this kind have been shown to have a relatively high success rate.
The Court of Appeal decision in Patel
The Court, presided over by the (then) Master of the Rolls, held that the Secretary of State is not obliged to make a removal decision at the same time or shortly after refusing the application for leave to remain. In doing so, it adopted the reasoning in its recent decision of Lamichhane, which it accepted was irreconcilable with the reasoning in its decisions in Mirza and Sapkota. The Court held as follows:
(i) The language and construction of the statute does not permit of an interpretation that imposes such a duty on the Secretary of State. There are “good reasons” why Parliament has empowered, but not required, the Secretary of State to make a decision to remove at the same time or shortly after making the decision to remove the extension application.
(ii) However, the Secretary of State must observe public law and human rights norms and in many cases this may mean that should she refuse the extension application, she should make a decision to remove the individual at the same time or shortly after.
(iii)Even in such a case, the failure of the Secretary of State to decide to remove an individual at the same time or shortly after refusing their extension application does not invalidate her decision to refuse the application. It is “intellectually unattractive and administratively inconvenient” for an executive decision to be retrospectively invalidated. Furthermore, it is difficult to see why the decision to refuse the extension application should be unlawful just because it is taken on its own, since the statutory scheme does not indicate that Parliament intended that it be contingent or dependent on the decision to remove.
(iv) The disadvantage to a person of being criminalized “can be overstated”, either because the delay between the refusal of an application and a decision to remove would not materially affect their position or because the person concerned could rectify the disadvantage by leaving the UK.
Given that the UKBA’s longstanding practice is to separate the decision to refuse the application for leave to remain and the decision to remove, the outcome of the case will have significance for a large number of applicants in this field.
Other issues raised by the appeal
The appeals in Patel and Ors raise two other interesting issues.
The Supreme Court will consider whether the First-Tier Tribunal (FTT) is permitted to consider on appeal grounds that are not raised in the application for a variation or extension of leave but are subsequently raised by the applicant in response to a Section 120 notice. A Section 120 “one-stop” notice requires the applicant to state exhaustively the reasons they should be allowed to remain in the UK. Permitting the FTT to consider such reasons on appeal would ensure that all relevant issues could be finally resolved, reducing the number of appeals and limiting uncertainty for the applicant. The Supreme Court will consider the Court of Appeal decision in Lamichhane, which held that while the issue of a Section 120 notice furthers “good and efficient administration”, the Secretary of State is empowered, but not required to serve one.
The Supreme Court will also consider the politically contentious issue of whether the nature and degree of an applicant’s non-compliance with the immigration rules is relevant to the balance to be struck under Article 8 of the European Convention on Human Rights between immigration control and private and family life.
A five-bench Supreme Court (Lords Mance, Kerr, Reed, Carnwath and Hughes) will hear the appeals on 3 July 2013.
