Failure to issue a removal decision for overstayers is not contrary to legislation
Daley- Murdock, R (on the application of) v Secretary of State for the Home Department  EWCA Civ 161 (23 February 2011)
This Court of Appeal case was heard on 23rd February 2011. The appellant is a Jamaican national who arrived in the UK with her daughter on 15th September 2001. Her husband entered the UK the following day. They were all granted leave to enter until 14th October 2001. This was later extended until 30th July 2002. The appellant and her family subsequently became overstayers in the UK. The appellant later gave birth to her son in the UK in 2004. No steps were taken to regularise their stay until October 2008 when they applied for leave to remain. Their application was refused by the respondents (home office) in July 2009 on the basis that they did not meet the requirements under DP 5/96 and that removal would not infringe their article 8 rights under the ECHR.
The appellant applied for judicial review and thereafter the respondents amended their decision letter in respect of their approach of the application under DP 5/96.
Immigration Judge Wyn Williams stated that both of the decisions issued by the home office were immigration decisions for the purposes of section 82(2) of the 2002 Act. The judge also held that it was unreasonable of the respondents not to issue an appealable removal decision at the same time of the decision. The judge stated that the respondent was not entitled to state that the appellants could not benefit from the DP 5/96 policy.
The judge accepted that the respondent’s decision with respect to their treatment of article 8 was irrational and ordered the respondent’s to reconsider the article 8 claim. The judge dismissed other elements of the appellants judicial review claim.
The failure to issue a removal decision
The appellants argued that the failure of the home office to issue a removal decision which would effectively, grant a right of appeal was contrary to policy and legislation (the 2002 Act). However, the Court’s conclusion in this respect was that Parliament never intended for overstayers to benefit from a right of appeal under section 82(2) which contains the list of appealable decisions. The court held that the legislation intended for those who were in the UK lawfully, to benefit from an appealable decision. Where a no right of appeal decision is made, it cannot be argued that a decision should then be made to confer such a right.
The appellants in this case argued that there was a duty to have regard to the appellant’s children under section 55 of the Borders, Citizenship and Immigration Act 2009. The respondent agreed that, where children are involved, there is a need to make a timely decision and that it would be unfair or irrational for the home office not to make a removal decision at the same time as the refusal of leave reiterating however, that each case depended on its individual merits.
Policy DP 5/96
This policy was withdrawn on 8th December 2008 however; the respondents applied the policy to this case as the application was made in October 2008 whilst the policy was still in force. The appellants argued that the policy applied for children who had lived in the UK unlawfully for at least 7 years. The appellants (parents) had been working during this time and the respondents used this deception (obtaining national insurance numbers and working illegally) as exceptional reasons for refusing the appellants application under the policy. The appellants argued that the respondent’s decision was not reasonable. The respondents on the other hand, argued that, the appellants had not only falsely obtained national insurance numbers, they had found work and continued to work for over 6 years all of which was work obtained from deception.
The court agreed with the respondents in this respect and stated that they could use this deception to justify their decision to exceptionally refuse the application under the policy.
The appellants put forward the above recent Supreme Court case and requested permission for this to be considered. The Court commented that this could be explored by the home office if and when a decision for removal is made. The home office would need to consider the best interests of the appellant’s children in light of the above case.
The Court proceeded to dismiss the appeal.
Removal on prolonged or indefinite hold unjustifiable
R (Mirza & Ors) v SSHD  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:
1. The decision whether the applicant qualified for leave to remain which,
2. 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:
· 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’.
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.