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On appeal from: [2012] EWCA Civ 741; [2012] EWCA Civ 960

These appeals concerned refusals of leave to remain. In Patel it was argued that the Secretary of State’s failure to make a removal decision at the same time, or shortly after, her decision to refuse the appellant leave to remain was unlawful. The other appeals related to the exclusion from consideration of new material under the Nationality, Immigration and Asylum Act 2002, s 85.

All three appeals were unanimously dismissed. In Patel, the SoS was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by her failure to do so. Neither the Immigration and Asylum Act 1999, s 10 nor the Immigration, Asylum and Nationality Act 2006, s 47 could be read as providing a link between failure to make a removal direction and the validity of a previous immigration decision.

In the other appeals, although the First-tier Tribunal was obliged under s 120 of the 2002 Act to consider new evidence filed, the evidence did not significantly improve their cases under ECHR, art 8. However, in accordance with AS (Afghanistan) v Secretary of State [2011] 1 WLR 385 s 85 of the 2002 Act imposes a duty on the Tribunal to consider any potential ground of appeal raised in response to a s 120 notice, even if it does not directly relate to the issues considered in the original decision.

For judgment, please download: [2013] UKSC 72

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII