RK (Nepal)), R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 359

[2009] EWCA Civ 359Case No C4/2009/0333
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
HHJ McKENNA QC
CO/8477/2008
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/04/2009
Before
LORD JUSTICE WALLERLORD JUSTICE MOSESLORD JUSTICE AIKENS
Between
R On the application of RK (Nepal) )AppellantSecretary of state for the home departmentRespondent
Amanda Jones (instructed by Bhogal Partners Solicitors, London) for AppellantMr Denis Edwards (instructed by Treasury Solicitor, London) for RespondentHearing Hearing dates : 18 March 2009
Judgment
[1]On 18 March 2009 the court heard an application by Roshani and Rajani Karki, whom I will call “the applicants”, for permission to appeal an order, dated 3 February 2009, of HHJ McKenna QC sitting as a deputy High Court Judge of the Queen’s Bench Division. Judge McKenna had refused their renewed application for judicial review of decisions taken on behalf of the Secretary of State (“the SSHD”) dated 25 and 26 November 2008. Those decisions were:(1) that the applicants were liable to be removed from the UK because they were in breach of the conditions of their leave to enter and remain in the UK as students; and(2) a direction that they would be removed that day to Nepal. The reasons given by the SSHD for these decisions were that both applicants had been found working for more than the 20 hours a week that is permitted during term time to non – British citizens given leave to enter and remain as students.[2]At the end of the hearing the court announced that the applications would be refused, for reasons to be given later. The court decided to reserve its reasons because it was told that there were two conflicting decisions at first instance on the point raised in this case. The first is that of Senior Immigration Judge PR Lane in the case of R on the application of CD (India) v Secretary of State for the Home Department, [2008] UKAIT 00055. Handed down 17 July 2008. (which I shall call “CD”). The second decision is that of Mr Ian Dove QC sitting as a Deputy High Court Judge in the Administrative Court of the Queen’s Bench Division in R on the application of Malik Meharali Saleh v Secretary of State for the Home Department, [2008] EWHC 3196 (Admin). This was handed down on 1 December 2008. which I shall refer to as “Saleh”. This court must determine which of those decisions is correct.[3]The issue is this: when a non - British citizen, who has been given leave to enter and stay in the UK as a student and is then ordered by the Secretary of State for the Home Department (“SSHD”) to leave the UK because of a breach of the conditions of staying here, has he a right to appeal that decision whilst still in the UK? That has been rather inelegantly called the right to an “in – country” appeal. The alternative is a right of appeal from whichever country the non – British citizen goes to after removal from the UK. CD held that there was an “in country” right of appeal in such a case. Saleh held that CD (India) was wrongly decided. Mr Dove held that there was no in-country right of appeal in such circumstances.

The background

[4]The applicants are nationals of Nepal. Roshani arrived in the UK on 28 September 2004 and she was granted leave to enter as a student. Her leave was extended. On 28 March 2008 it was extended for 1 year, that is until 31 March 2009, in order that she could complete a law degree.[5]Rajani arrived in the UK on 6 June 2008. She was granted leave to remain as a student on the same terms as her sister. Her leave was valid until 30 September 2011.[6]Leave to enter for both applicants was subject to the Immigration Rules, in particular Rule 57 which applies to those granted leave to enter as students. That Rule indicates that the student is not supposed to engage in business or full time employment, but can take part time or vacation employment with the consent of the SSHD. The Immigration Rules are supplemented by Immigration Directorate Instructions, (“IDI”), which constitute guidance. One of those instructions stipulates that students should work for no more than 20 hours a week during term time, although they may work for longer times in vacations.[7]Both applicants undertook work during their term time. On 25 November 2008, as a result of investigations, both applicants were challenged by officials from the UK Border Agency about the number of hours that they were working. Each applicant was served with form IS151A, indicating that she was a worker acting in breach of the conditions of her leave to enter and remain in the UK as a student. Each was made the subject of Removal Directions on 26 November 2008. The Removal Directions stated that there was no right to appeal that decision whilst they were still in the UK. In addition, Roshani signed a form IS101 agreeing to depart the UK voluntarily. However, she says that she only signed it because she felt surrounded and pressured by male Immigration officials.[8]Both applicants say that they do not wish to return to Nepal. On the contrary, they say that they wish to complete their studies in the UK, particularly as they have both invested much time and money in their studies so far.[9]Originally it was intended to remove the applicants on 27 November 2008. However, each applied for judicial review of the decision and/or the statement that there was no in-country right of appeal against the decision to remove them. At the same time each applicant applied for an interim injunction to restrain the Home Department from removing them. An interim injunction restraining the SSHD from carrying out the removal direction was granted that day on condition that they apply promptly for judicial review.[10]On 17 December 2008, Collins J refused permission to proceed to judicial review after he had considered the applications on paper. He gave his reasons. These were that the removal order was made under section 10(1)(a) of the 1999 Act; the right of appeal was therefore under section 82(2)(g) of the 2002 Act, and there was therefore no in – country right of appeal. Those applications were renewed in an oral application to Judge McKenna and were again refused.[11]On 18 February 2009 the applicants filed a Notice of Application for permission to appeal to the Court of Appeal. On 23 February 2009, the applicants were given new Removal Directions which stated that they were to be removed to Nepal on a flight timed at 22.30 hours on Friday, 27 February 2009. Late that afternoon the applicants sought an interim injunction from this court to prevent the SSHD carrying out the new removal direction until the determination of their application for permission to appeal. An interim injunction was granted by Waller LJ, again on conditions which were attached to the order. One of them was that the applicants’ solicitors should provide a statement explaining the delay in making the application to stay the removal direction made on 23 February 2009.[12]That statement had not been provided by the time of the hearing before us. Miss Amanda Jones, who appeared for the applicants, told us that those instructing her had moved as quickly as they could once they had heard from the applicants. We were not convinced that the matter was given the urgency it should have been. We had a suspicion that the late application was made for tactical reasons; in effect forcing the court to grant an interim injunction without being able to consider the merits fully with the other side present. At the hearing we warned the solicitors for the applicants that such tactics were unacceptable.

The legislation

[13]Section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) sets out the circumstances in which non – British citizens may be removed from the UK in accordance with directions given by an Immigration Officer. It provides: “10. Removal of certain persons unlawfully in the United Kingdom (1) A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if— (a) having only a limited leave to enter or remain, does not observe a condition attached to the leave or remains beyond the time limited by the leave; (b) he has obtained leave to remain by deception; or (c) directions (“the first directions”) have been given for the removal, under this section, of a person (“the other person”) to whose family he belongs. ………… (8) Directions for the removal of a person given under this section invalidate any leave to enter or remain in the United Kingdom given to him before the directions are given or while they are in force..” (a) having only a limited leave to enter or remain, does not observe a condition attached to the leave or remains beyond the time limited by the leave; (b) he has obtained leave to remain by deception; or (c) directions (“the first directions”) have been given for the removal, under this section, of a person (“the other person”) to whose family he belongs. …………[14]Rights of appeal against a decision given under that section of the 1999 Act are dealt with in section 82 of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”). Section 82 is found in Part 5 of the 2002 Act, which is headed “Immigration and Asylum Appeals”. Section 82 identifies the type of “immigration decision” against which there is a right of appeal to the Asylum and Immigration Tribunal (“the Tribunal”), which is established by section 81 of the same Act. The relevant parts of section 82 provide:
“82. Right of appeal: general (1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2) In this Part “immigration decision” means— ………… (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, ………….. (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c.33) (removal of person unlawfully in United Kingdom), …………. (4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part. ……..” (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, …………. ……..”
[15]Section 84 set out the possible grounds of appeal against an immigration decision. An appeal under section 82(1) must be brought under one of the grounds set out in section 84. These include the following:
“ “84 Grounds of appeal (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds— (a) that the decision is not in accordance with immigration rules; ……… (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights; ………. (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; ……” (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds— (a) that the decision is not in accordance with immigration rules; ……… ………. (e) that the decision is otherwise not in accordance with the law; (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; ……”
[16]The applicants have not stated in any document which of the grounds set out in section 84 they say that they would rely upon in any appeal to the Tribunal, whether made from within or outside the UK. We asked Miss Jones which ground is relied upon. She said that reliance would be placed on grounds (a) and (f). However, there was no elaboration of how those grounds could be invoked. The “Grounds of Challenge” that had been submitted in support of an application for judicial review makes no reference to the section 84 grounds. The only specific fact relied on is that neither applicant intended to sign a document saying that she wished to return to Nepal. The document’s principal assertion is that both applicants have an in-country right of appeal because the decision in CD was correct.[17]Also within Part 5 of the 2002 Act is section 92, which identifies which types of immigration decision may be appealed by a person whilst he is still in the UK. Because section 82(4) stipulates that the right of appeal granted by section 82(1) is subject to the other provisions of that Part, it must therefore be subject to section 92. The relevant part of that section provides:
“92. Appeal from within United Kingdom: general (1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. (2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).” (1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(j) ”

[18]The basic question in this case is whether the immigration appeal from which the applicants wish to appeal to the Asylum and Immigration Tribunal is one which falls within paragraphs (c), (d), (e), (f) or (j) of section 82(2). It is not suggested in this case that the immigration decision falls within the terms of section 92(4) of the 2002 Act, which permits appeals from within the UK if the appeal is against an immigration decision when an applicant has made any “asylum claim” or “human rights claim” (as defined) whilst within the UK.[19]In the course of her argument, Miss Jones referred us to Part 9 of the Immigration Rules. This deals with “General grounds for the refusal of entry clearance, leave to enter or variation of heave to enter or remain in the United Kingdom”. Rule 323deals with “curtailment” and provides: “Grounds on which leave to enter or remain may be curtailed[323]A person's leave to enter or remain may be curtailed: (i). on any of the grounds set out in paragraph 322(2)-(5) above; or (ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted; or (iii) if he is the dependant, or is seeking leave to remain as the dependant, of an asylum applicant whose claim has been refused and whose leave has been curtailed under section 7 of the1993 Act, and he does not qualify for leave to remain in his own right. (iv) on any of the grounds set out in paragraph 339A (i)-(vi) and paragraph 339G (i)-(vi).” Miss Jones notes in particular Rule 323 (ii).[20]Miss Jones also referred the court to the part of the IDI which sets out the policy of the SSHD in relation to curtailment of leave to remain and administrative removal. Chapter 9, section 5, paragraph 2.2 of the IDI provides:
“21. Failure to comply with conditions Although the provision to curtail exists where a person fails to observe the conditions of leave to enter or remain, it will be more usual to proceed direct to administrative removal for breach of conditions … Curtailment should therefore only be considered where the person's actions are not so serious as to merit enforcement action, but where it would be inappropriate to let him remain for the duration of his leave.”
[21]Paragraph 395C of the Immigration Rules states:
“Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including: … (viii) any representations received on the person's behalf.”
[22]Chapter 13, section 2 of the IDI concerns administrative removal under section 10 of the 1999 Act. Paragraph 2.1.2 provides as follows: Section 10(1)(a) - breach of conditions “2.1.2 A person is liable to administrative removal under section 10 if he fails to comply with a condition of his limited leave e.g. if he is found to be working in breach of a restriction or prohibition on employment, … The breach must be of sufficient gravity to warrant such action. In the case of a person found to be working in breach of a restriction or prohibition on employment, there must be firm and recent evidence (within 6 months) of working in breach, including one of the following: …• A statement by the employer implicating the suspect;• Documentary evidence such as pay slips …• Sight by the [Immigration Officer], or by a police officer who gives a statement to that effect, of the offender working, … In practice, this should generally be backed up by other evidence. …”,

The arguments of the parties

[23]For the applicants, Miss Jones submitted that, at the time just before the decision of the immigration authorities was made to give a direction under section 10(1)(a) of the 1999 Act, the applicants had leave to remain in the UK. If a person’s leave to remain in the UK is varied by being totally curtailed so that when the order takes effect the person has no leave to remain, then that will fall within paragraph (e) of section 82 of the 2002 Act. Therefore, the effect of the SSHD’s order, which is an “immigration decision” within section 82(1) of that Act, is the same as if a “curtailment” order had been made under Rule 323 of the Immigration Rules. Thus, effectively, the SSHD’s decision comes within paragraph (e) of Section 82 or should be treated as doing so.Accordingly, the applicants have an in-country right of appeal and CD was correctly decided.[24]Mr Edwards, for the SSHD, emphasized that the order to remove the applicants and the removal direction were expressly given under section 10(1) of the 1999 Act, not under Rule 323 of the Immigration Rules. He also pointed out that there has been no application for judicial review on the basis that the SSHD improperly exercised that power or that she should have used the powers under Rule 323 of the Immigration Rules instead. Nor has it been suggested that an out-country right of appeal infringes Article 6 of the European Convention on Human Rights, so that section 82(2) and 92(2) must be “read down” accordingly.[25]Therefore, he submitted, Saleh was correctly decided and CD is wrong.[26]CD was an Indian national who was granted leave to enter as a student. He applied to remain as a student to follow a course at Lloyds College, London E7. In December 2007 the SSHD decided CD should be removed by way of direction given under section 10(1)(a) of the 1999 Act, because Lloyds College was not a bona fide educational establishment. There was an issue of fact on whether it had ever been so. The Immigration Judge held that it had been but had then failed as an institution and had been removed from the register of educational establishments. CD challenged the order and succeeded before the Immigration Judge. The SSHD appealed, saying that the Immigration Judge had had no jurisdiction to hear the appeal.[27]Senior Immigration Judge Lane accepted an argument that where the same facts could give rise to a person being made subject to an order under section 10(1)(a) of the 1999 Act or an order curtailing leave to remain under Rule 322 or 323 of the Immigration Rules, then “it was hard to see how Parliament could have intended that person to be deprived of an in-country right of appeal”. Para 22 of the judgment in CD. Therefore, although the actual decision of the SSHD was under section 10(1) of the 1999 Act, which fell within paragraph (g) of section 82(2) of the 2002 Act, giving only an out of country right of appeal, it must also be categorised as one that fell within paragraph (e) of section 82(2), giving an in-country right of appeal.[28]In Saleh, the applicant was also a student, who had enrolled on a BA course. He was arrested at work on suspicion of working in excess of the condition of his leave of entry, in accordance with Rule 57 of the Immigration Rules and the IDI. A removal notice was served on him pursuant to section 10(1) of the 1999 Act. The question before the Deputy Judge was whether the applicant had an in-country right of appeal. The applicant relied on the decision in CD.[29]The Deputy High Court held that sections 82(2)(e) and (g) cannot apply simultaneously to a case of this sort and the provisions are mutually exclusive. He held that this was clear from the language of sections 82(2) and 92(2) of the 2002 Act. Para 16 of the judgment in Saleh. Parliament had made it plain that decisions under section 10 of the 1999 Act could only be subject to an out of country appeal. Para 17 of the judgment in Saleh. The approach taken by the Court of Appeal in R on the application of Lim v Secretary of State for the Home Department, [2007] EWCA Civ 773. (“Lim”) supported that analysis. Therefore CD was wrongly decided and should not be followed.

Discussion

[30]The starting point for any analysis must be the decision of this court in Lim. The case considered in detail the relationship between section 10 of the 1999 Act andthe structure of the appeal provisions in sections 82 and 92 of the 2002 Act and the extent, if any, to which a decision under section 10 can be challenged by judicial review rather than an out of country appeal. In that case the SSHD had purported to remove Mr Lim, a Malaysian national, under section 10 of the 1999 Act, on the basis that he had breached the condition of his leave to remain in the UK by working at a restaurant other than the one stipulated in his work permit. He challenged the factual premiss for the removal order, asserting that he had not worked at another restaurant. The case therefore turned on the issue of whether judicial review could be used to challenge the factual basis of the removal direction under section 10, against which there is only an out of country right of appeal pursuant to sections 82 and 92 of the 2002 Act. Mr Lim wished to challenge the decision from within the UK rather than having to do so at long distance from Malaysia.[31]Sedley LJ gave the principal judgment of the court. Sir Mark Potter P and Wilson LJ agreed. He held that there are some facts, which he called “precedent facts”, which were involved in a decision under section 10, and which could be the subject of judicial review. Such facts would include the issue of whether the person being removed was or was not a UK citizen or, indeed, whether he was the person that the SSHD was purporting to remove. See para 19 of the judgment. In relation to an allegation that the person to be removed was said not to have observed a condition for remaining in the UK, or indeed other factual issues on which the decision to remove was based, Sedley LJ stated that the position is different. Although the court should continue to regard every question arising under section 10 in principle as being both appealable and reviewable, the court should act as follows:
“[It should] calibrate the use of judicial review, through the use of judicial discretion, to the nature of the issue or issues. In this way – and, so far as I can see, in no other way – the High court can remain loyal to what was decided in Khawaja Khawaja v Home Secretary [1984] AC 74 by consistently retaining jurisdiction to determine the existence of preconditions of liability to removal, as well as other questions of law apt for the High Court’s determination, but can also respect the policy of section 82 by declining to entertain challenges on issues more apt for the appeal mechanism, whatever their hardships”
. Para 22 of Lim.[32]Sedley LJ then went on to say that, therefore, it would only be in cases with “special or exceptional factors” that the High Court would exercise a discretion in favour of judicial review and against the ordinary process of appeal from abroad that was laid down in the 2002 Act. He held that the judge, Lloyd Jones J, had wrongly exercised his discretion to permit a judicial review in that case.[33]The importance of that decision lies in its emphasis on the appeal structure that Parliament has laid down in the 2002 Act with respect to various types of “immigration decision”. The courts must respect that framework, which is not open to challenge in the courts by way of judicial review unless there are “special or exceptional factors” at play. Therefore, except when such “special or exceptional factors” can successfully be invoked so as to give rise to a right to judicial review, the court must accept that an out of country right of appeal is regarded by Parliament as an adequatesafeguard for those who are removed under section 10 of the 1999 Act.[34]It is plain in this case that the immigration decisions made against the applicants was one under section 10(1)(a) of the 1999 Act. That is what was stated in the form IS151Athat was served on each of the applicants. There is no issue concerning their non – British citizenship. It is also clear, as a matter of fact, that the reason for the removal from the UK in accordance with directions given by an immigration officer is that they both obtained limited leave to enter and remain in the UK and that this leave was subject to conditions. They have broken those conditions in the manner I have already described. Those facts falls all squarely within section 10(1)(a) of the 1999 Act.[35]It must follow from the Court of Appeal’s decision in Lim that the court has to respect the fact that the “immigration decision” against the applicants that was stated to be made under section 10 of the 1999 Act was just that. Therefore, it must fall within section 82(2)(g) of the 2002 Act and so must only be capable of appeal out of country. I agree with Deputy High Court Judge Dove QC that a decision made under section 10(1) of the 1999 Act cannot fall within section 82(2)(e), when Parliament has stipulated that it falls within section 82(2)(g). It is, in my view, irrelevant that the SSHD might have made a decision to curtail the applicants’ leave under the Immigration Rules, thus bringing the case within section 82(2)(e). She did not do so and there is no challenge in these proceedings to the fact that the decision to remove was made under section 10.[36]Parliament has decided that the SSHD can make a decision to remove a non – UK citizen under section 10(1) of the 1999 Act, or by using the curtailment provisions of the Immigration Rules. The two routes are distinct and must not be blurred. If the SSHD decides to use the section 10(1) procedure, then that can only be challenged in the very limited circumstances described by Sedley LJ in Lim. If that is not possible (and it has not been attempted at all in this case) then the applicant is confined to an out of country right of appeal.[37]Accordingly, I would conclude that CD was wrongly decided and that Saleh was correct. Since the hearing before us I have discovered the decision of Wilkie J in R on the application of Ms Qin Yu v Secretary of State for the Home Department. [2008] EWHC 3072 (Admin). It was handed down on 16 October 2008, that is, before the decision in Saleh, which was handed down on 1 December 2008. In his judgment, Wilkie J had to consider whether CD was wrongly decided, as submitted on behalf of the SSHD in that case. He held, at paragraph 29, that it was, for essentially the same reasons I have attempted to give.

Conclusion

[38]The renewed application for judicial review must be dismissed.[39]I agree.[40]I also agree.

Cited in 20 later judgments

and 11 more of the most senior