Patel & Ors v Secretary of State for the Home Department [2012] EWCA Civ 741

[2012] EWCA Civ 741

Case No C5/2012/0204

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(The Hon Mr Justice Blake and Upper Tribunal Judge Perkins)

Appeal Nos. IA/15097, 15089 and 15990/2011

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/06/2012

Before

THE MASTER OF THE ROLLS

LADY JUSTICE HALLETT (THE VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION)

LORD JUSTICE STANLEY BURNTON

Between

SANDEEPKUMAR MANHARBHAI PATELAppellants

HIRALBEN HITENBHAI PATELAppellant

VANSH PATELAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Zane Malik (instructed by Malik Law Chambers) for Appellants

Thomas Roe (instructed by the Treasury Solicitor) for Respondent

Hearing Hearing date: 3 April 2012

Judgment

The Master of the Rolls:

[1]This is an appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal (Blake J and Judge Perkins) brought by Sandeepkumar Patel, his wife, Hiralben, and their son, Vansh.

The facts and issues

[2]Mr Patel and his wife, who were both born in 1984, arrived from India in the United Kingdom on 24 March 2009, on the basis that he was granted leave to enter as working holiday-maker until 6 March 2011, and she was his dependent wife. Their only child, Vansh, was born here in 2010. On 26 February 2011, the appellants applied for further leave to remain in the UK, pursuant to

Article 8 of the European Convention on Human Rights

(‘the Convention’), rule 395C of the Immigration Rules (‘rule 395C’), and their particular circumstances. On 30 March 2011, their application was refused by the Secretary of State. Their appeal against that refusal was dismissed by Immigration Judge Brown in the First Tier Tribunal (‘FTT’) on 14 July 2011. Senior Immigration Judge Waumsley granted the appellants permission to appeal to the Upper Tribunal (‘UT’), who dismissed their appeal on 13 December 2011 –

[2011] UKUT 484 (IAC)

– but granted them permission to appeal to this court on 4 January 2012.

[3]The appellants no longer maintain that there is any merit in the substantive grounds of appeal which they raised before the FTT and the UT: realistically, Mr Malik, who has presented the appeal very well, accepts that there is no basis for challenging the decisions of the UT in relation to those issues. The sole ground of appeal is that the Secretary of State’s decision of 30 March 2011, refusing the appellants’ application for further leave to remain (which I shall call an ‘extension application’) was unlawful because it was taken in isolation from any decision to issue a direction to remove them from the UK (which I shall call a ‘removal direction’). As Mr Roe says on behalf of the Secretary of State, no decision whether to make a removal direction has yet been taken, as it is hoped that they will go voluntarily.

[4]The main issue of principle therefore thrown up by this appeal is whether the appellants are right in their contention that, when refusing an extension application, the Secretary of State is bound to decide, at the same time (or, possibly, very shortly afterwards), whether to make a removal direction. Even if the appellants are right on the main issue, there is a second issue. The Secretary of State contends that they were not entitled to rely before the FTT on the point that the Secretary of State failed to decide whether to make a removal direction, as a ground for challenging the refusal of their extension application, and therefore that ground cannot be raised in this court.

The statutory background: general

[5]Section 3(1)(a) of the Immigration Act 1971 contains what may be described as the general rule that, subject to certain exceptions (irrelevant for present purposes), a person who is not a British citizen may not enter the UK ‘unless given leave to do so in accordance with the provisions of, or made in under, this Act’. Section 3(1)(b) of the 1971 Act empowers the Secretary of State to grant such leave for a limited or indefinite period, and section 3(3)(a) empowers the Secretary of State to vary a person’s leave to remain.

[6]Section 10(1)(a) of the Immigration and Asylum Act 1999 provides that ‘a person who is not a British citizen may be removed’ from the UK ‘in accordance with directions given by an immigration officer, if … having only limited leave to enter or remain, he … remains beyond the time limited by the leave’.

[7]Sections 81 and 82(1) of the Nationality, Immigration and Asylum Act 2002 permit a person in respect of whom an ‘immigration decision’ has been made to appeal to the FTT. Section 82(2) of the 2002 Act defines an ‘immigration decision’. Three of those definitions are relevant. Para (d) refers to ‘[a] refusal to vary a person’s leave to enter or remain in [the UK], if the result of the refusal is that the person has no leave to enter or remain’. Paras (g) and (ha) refer to ‘a decision that a person is to be removed’ from the UK, in one case, under section 10 of the 1999 Act, and, in the other, under section 47 of the Immigration, Asylum and Nationality Act 2006.

[8]Section 84(1) of the 2002 Act identifies the grounds on which an appeal can be brought against an immigration decision. They include the ground that the decision (a) ‘is not in accordance with immigration rules’, (c) ‘is unlawful under section 6 of the Human Rights Act 1998’, or (e) ‘is otherwise not in accordance with the law’, as well as (f) that the decision-maker should have exercised a discretion differently, and (g) that removal of the appellant ‘in consequence of the immigration decision would … be unlawful under section 6’ of the 1998 Act.

[9]Section 85 of the 2002 Act details matters to be considered by the FTT on an appeal, including, in subsection (4), ‘evidence about any matter which it thinks relevant to the substance of the decision’. Section 86(2) of the 2002 Act requires the FTT to determine ‘any matter raised as a ground of appeal’ and ‘any matter which section 85 requires it to consider’. Section 86(3) states that the FTT ‘must allow the appeal’ if it ‘thinks that(a) a decision against which the appeal is brought … was not in accordance with the law (including immigration rules)’ or

(b) a discretion exercised when the decision was taken ‘should have been exercised differently’.

[10]Section 3C(2) of the 1971 Act (inserted by the 1999 Act, which replaced a similar provision which had been inserted in 1976) provides that, where an application for variation is made before the leave has expired, leave is effectively to be extended, so long as(a) the application is neither decided nor withdrawn,

(b) an appeal could be brought under section 82(1) of the 2002 Act, or

[11]Section 47 of the 2006 Act provides that, where a person’s right to enter or remain is extended by section 3C(2)(b) of the 1971 Act, ‘the Secretary of State may decide that the person is to be removed … in accordance with directions to be given by an immigration officer when the leave ends.’ Thus, a removal direction can be made under section 10 of the 1999 Act or under section 47 of the 2006 Act.

[12]The Immigration Rules, at the relevant time (but no longer) included rules 395C and 395D. Rule 395C provided that, ‘[b]efore a decision to remove under section 10 [of the 1997 Act] is given, regard will be had to all relevant facts by the Secretary of State’. Rule 395D stated that ‘[n]o one should be removed under section 10 if his removal would be contrary to the [UK’s] obligations under the … Convention.’

[13]Section 24(1) of the 1971 Act renders it a criminal offence for a person who is not a British citizen but has leave to remain in the UK, to remain in the UK ‘knowingly’ ‘beyond the time limited by the leave’ or to ‘[fail] to observe a condition of the leave.’

Section 120 of the 2002 Act: ‘one stop’ appeals

[14]Section 120 of the 2002 Act states, by subsection (1), that it applies to a person(a) ‘who has made an application to enter or remain’ in the UK, or

(b) in respect of whom an ‘immigration decision’ ‘has been taken or may be taken’. Subsection (2) of section 120 provides that:

‘The Secretary of State or an immigration officer may by notice in writing require the person to state in writing: ‘(a) his reasons for wishing to enter or to remain in [the UK], (b) any grounds on which he should be permitted to enter or to remain in [the UK], and (c) any grounds on which he should not be removed from or required to leave [the UK].’

[15]Section 96(2) of the 2002 Act precludes an appeal against an immigration decision (‘the new decision’) in respect of a person where ‘the Secretary of State or an immigration officer certifies:(a) that the person received notice under section 120 [in respect of an earlier immigration decision],

(b) that the new decision relates to an application … which relies on a matter that should have been, but has not been raised … in response to that notice, and

[16]Subsection (2) of section 85 of the 2002 Act, which it will be recalled deals with appeals to the FTT, states that, ‘[i]f an appellant under section 82(1) makes a statement under section 120’, the FTT must treat any matter raised therein which could be a ground of appeal under section 84(1) as a ground of appeal against the decision under attack. Section 85(3) states that this provision also applies to a section 120 statement made after the appeal in question was commenced.

The respective cases in summary

[17]As explained above, there are two issues in this case. The first is raised by the appellants, and it is whether the Secretary of State was obliged to consider whether or not to make a removal direction against the appellants at the same time as, or very shortly after, her decision to refuse their extension application. The second question, which is raised by the respondent Secretary of State, is, if she was so obliged, whether that can give rise to a right in the appellants to challenge her refusal of their extension application in the FTT.

[18]The appellants’ case is that both points must be resolved in their favour at least in this court, in the light of previous decisions on both issues made by the Court of Appeal. This argument is based on the reasoning of this court in Mirza v Secretary of Statefor the Home Department

[2011] EWCA Civ 159

(‘Mirza’), on the basis that it decided that, in the light of the statutory provisions referred to above, and in particular section 47 of the 2006 Act and section 120 of the 2002 Act, the Secretary of State must (save perhaps in very unusual circumstances) decide whether or not to make a removal direction at the same time as, or very shortly after, refusing an extension application. The decision in Sapkota v Secretary of State for the Home Department

[2011] EWCA Civ 1320

(‘Sapkota’) is said both to follow that approach and to confirm the view expressed in Mirza that a refusal of an extension application which is not accompanied by, or to be shortly followed by, a decision whether to make a removal direction, would not be ‘in accordance with the law’, and therefore appealable to the FTT under section 84(1)(e) of the 2002 Act.

[19]The Secretary of State’s primary case is that(i) section 47 of the 2006 Act and

(ii) section 120 of the 2002 Act confer on her no more and no less than, respectively, (i) a right to make a removal direction, and (ii) a right to serve a notice on a person making an extension application to raise all the points which would be raised in relation to any subsequent removal decision. On her behalf, Mr Roe contended that those two sections cannot, as a matter of ordinary language, impose an obligation on the Secretary of State to make such a direction or to serve such a notice, at least in the absence of special facts. In that connection, the Secretary of State relies on two other decisions of this court - AS (Afghanistan) v Secretary of State for the Home Department

[2009] EWCA Civ 1076

[2011] 1 WLR 385

(‘AS (Afghanistan)’), and Lamichhane v Secretary of State for the Home Department

[2012] EWCA Civ 260

(‘Lamichhane’).

[20]For the Secretary of State, it was alternatively argued that, even if she is wrong on this point, it was not open to the appellants to appeal to the FTT against her rejection of their extension application as the UT were right to distinguish Mirza and Sapkota, and, even if that is wrong,(i) section 88 of the 2002 Act precluded the appellants taking the point they seek to take, and/or (ii) the extension decision was not thereby rendered ‘not in accordance with the law’. .

Mirza [2011] EWCA Civ 159 and Sapkota [2011] EWCA Civ 1320

[21]In Mirza, para 1, Sedley LJ described the issue raised as being whether the Secretary of State, ‘when refusing to extend a foreign national’s leave to remain’ in the UK ‘ought at the same time or promptly thereafter to make a removal decision which, if adverse, will enable them to appeal without first breaking the law by overstaying.’

[22]In para 21, Sedley LJ, in the course of a judgment with which Rimer and Sullivan LJJ agreed, said that section 3C of the 1971 Act and section 47 of the 2006 Act ‘give express authority’ to the Secretary of State ‘to begin dealing with removal from the moment the initial leave expires.’ He continued:

‘The manifest object in such cases is that a decision not to vary leave, which brings the section 3C extension to an end, should be accompanied or promptly followed by a decision on removal.’

[23]At para 22, Sedley LJ described the effect of the statutory provisions to which I have referred as giving rise to a ‘what is usually called the “one-stop shop” policy of discouraging multiple appeals’. He described that view as being supported by decisions of this court such as JM (Liberia) v Secretary of State for the Home Department

[2006] EWCA Civ 1402

, [2007] Imm AR 293, and AS (Afghanistan). He then described this policy as having become ‘an objective set by primary legislation’, to which it was ‘the duty of the courts as well as of the executive to give effect’.

[24]Sedley LJ went on in Mirza, para 25, to say that ‘the power given to the Home Secretary by section 120 [of the 2002 Act] to serve a one-stop notice is not merely discretionary or elective’. He also pointed out that ‘the state … has duties of fairness towards individuals whose lives are on hold, and who may well be committing a criminal offence by their mere presence while they await an appealable decision’. This observation reflected the view that, once an application to extend leave to remain was refused, it became a criminal offence for the person concerned to remain in the UK – a point made by Laws LJ in JM (Liberia) [2007] Imm AR 293, para 17.

[25]He then discussed an earlier decision of this court, to which he was party, TE (Eritrea) v Secretary of State for the Home Department

[2009] EWCA Civ 174

, [2009] INLR 558. At

[2011] EWCA Civ 159

, para 30, of which he said that that case ‘decides, and decides only, that, there being no legal inhibition on considering both breach of the immigration rules and the giving of removal directions in close succession, fairness in that particular case required it to be done’.

[26]Having considered evidence which showed that the Secretary of State dealt independently with extension applications and decisions to make removal directions, Sedley LJ described this practice as ‘contrary to the policy and objects of the legislation’, which he said was ‘to deal compendiously with all issues concerning the lawfulness of a person’s continued residence in the [UK]’ - see Mirza, para 41. He went on to accept, however, that a ‘practice of deferral [of the removal decision] for a short period may meet a legitimate rationale of allowing or encouraging foreign nationals who no longer have leave to remain to depart voluntarily …’.

[27]At para 43, Sedley LJ (echoing what he had said in TE (Eritrea) [2009] INLR 558, para 19)made it clear that ‘there may be cases in which segregation of the two decisions is nevertheless justified’, but he gave no example of facts where that might arise.

[28]Two paragraphs later, he then went on to say that there could be ‘few cases in which the right course will not be to invite submissions as to why removal should not follow if variation of leave to remain is refused, and to make a compendious decision on both questions.’ As I understand what he said, he went on to say that such ‘a compendious decision’ might not be appropriate where the Secretary of State made an ‘unanticipated refusal of leave to remain’, and, in such cases, there could be a ‘pause between refusal of leave and the taking of a removal decision’, but that the removal decision should not be put ‘on prolonged or indefinite hold’.

[29]In Sapkota, para 1, Aikens LJ described the issues raised by the various appeals before the court as ‘concerning the jurisdiction of tribunals and this court, and the principles they should apply in cases where the Secretary of State … has refused an application of a foreign national to vary leave to remain … but has not, at the same time or promptly thereafter, given a direction for the removal of that person’ from the UK.

[30]In his judgment, with which Jackson LJ agreed, Aikens LJ considered the cases to which I have so far referred, and a number of other cases, including SA (Pakistan) v Secretary of State for the Home Department

[2010] EWCA Civ 210

, [2010] INLR 523. In that case, Laws LJ had made a number of observations which suggested that, even if a refusal of an extension application should have been followed by an immediate decision whether to make a removal direction, a failure to make such a decision would not invalidate the refusal of the extension application. Having carefully considered Laws LJ’s remarks at

[2011] EWCA Civ 1320

, paras 69-75 and 80-83, Aikens LJ concluded that they were obiter for reasons which he gave in Sapkota, paras 80-84. Arden LJ disagreed on that issue.

[31]At paras 86-97, Aikens LJ then went on to discuss the reasoning of Sedley LJ in Mirza. He then described the effect of that reasoning as being that ‘an “unjustified deferral” of a decision on removal following a decision to refuse leave to remain would be “contrary to law”’, and added that ‘we are bound by what Mirza decides’ - see paras 100 and 110. However, at para 101, Aikens LJ ‘accept[ed] that the [Secretary of State] has to take the variation decision first’ so the effect of the decision in Mirza had to be that if ‘the variation decision’ is taken ‘in circumstances in which it is not contemplated that the removal decision will be promptly taken thereafter and there is no good reason for that delay or “segregation of fact”, then that must make the first decision “not in accordance with the law”.’

[32]At para 103, Aikens LJ summarised the position as he saw it in these terms: ‘[A]n argument that … an “immigration decision” not to extend leave to remain is flawed because the [Secretary of State] failed at the same time or promptly thereafter to consider the question of whether to make a removal direction ….. does fall within the ambit of section 84(1)(e) of the 2002 Act. In short, an unjustified deferral of a removal direction would mean that the “immigration decision” actually taken is not “in accordance with the law”’.

[33]Aikens LJ concluded at para 114, that the effect of what Sedley LJ had said at Mirza, para 45, was that:

‘the burden is on the [Secretary of State] to initiate the process of dealing with the two decisions together by an invitation to the applicant [for an extension to his or her leave to remain], at the time of a “one stop notice” is issued with the variation decision, to make submissions as to why removal should not follow the refusal to vary leave.’

Lamichhane [2012] EWCA Civ 260and AS (Afghanistan) [2011] 1 WLR 385

[34]In Lamichhane, para 1, Stanley Burnton LJ (with whom Maurice Kay and Lewison LJJ agreed) described the appeal as raising a ‘difficult question as to the jurisdiction of the [FTT] in relation to matters raised by an appellant in his appeal from an adverse immigration decision of the Secretary of State which he had not previously raised, in a case in which no “one-stop” notice under section 120 of … the 2002 Act has been served by the Secretary of State’.

[35]The case did not directly raise any of the issues addressed in the two cases just discussed. However, the competing arguments each included five points of which the first two are highly relevant, and were summarised by Stanley Burnton LJ in these terms at paras 21-2:

‘[For the appellant applicants] (i) Notwithstanding the apparently permissive wording of section 120, the Secretary of State is under a duty to serve a section 120 notice on a claimant when making an immigration decision or within a reasonable time thereafter. (ii) Failure by the Secretary of State to serve a section 120 notice renders her immigration decision unlawful, and therefore “not in accordance with the law” within the meaning of sections 84 and 86. [For the respondent Secretary of State]: (i) Section 120 confers a power and a discretion on the Secretary of State, but not a duty. (ii) It follows that a failure to serve a section 120 notice cannot affect the lawfulness of an immigration decision.’

[36]At para 30, Stanley Burnton LJ described what Sedley LJ had said at para 25 of Mirza as ‘judicial legislation’, and said that, while accepting that ‘good and efficient administration of justice is furthered’ by the service of a notice under section 120 of the 2002 Act, that did not justify doing ‘such violence to the statutory wording’ or imposing ‘a duty when Parliament clearly has not done so’. In the next paragraph of his judgment, Stanley Burnton LJ accepted that, in Sapkota, Aikens LJ ‘accepted that Mirza had established that the Secretary of State is under a duty to serve a section 120 notice’.

[37]Atparas 32-33, Stanley Burnton LJ said this: ‘I fully accept [the] submission that Mirza and Sapkota are authority for the proposition that an enactment conferring what may appear to be a statutory power may impose a public law duty. However, neither is binding authority for the proposition that the Secretary of State is under a duty to serve a section 120 notice. AS (Afghanistan) is in my judgment binding authority to the contrary. Furthermore, if AS (Afghanistan) is also obiter on this point, I prefer to follow the dicta in that case as against what was said in Mirza and accepted in Sapkota. It follows that I would reject the submission that the Secretary of State is under a duty to serve a section 120 notice, or indeed that she is under such a duty unless there is a good reason not to do so. The section confers a discretionary power, as held in AS (Afghanistan).

[38]The dicta in AS (Afghanistan), which Stanley Burnton LJ had in mind, were in the judgments of Moore-Bick LJ and Sullivan LJ (and, as Stanley Burnton LJ pointed out in Lamichhane, para 27, Arden LJ, who dissented in AS (Afghanistan), appears to have taken the same view). According to Arden LJ, the ‘principal questions’ raised in AS (Afghanistan) concerned ‘the effect of what are called “one-stop” notices or warnings pursuant to section 120 of the [2002 Act], on appeals in immigration cases’ – see para 1.

[39]Moore-Bick LJ said this at in AS (Afghanistan), paras 84 and 86:

‘It must be borne in mind that the service of a notice under section 120 is in the discretion of the Secretary of State. He is not obliged to take that step. … [S]ervice of a notice under section 120 is entirely in the option of the Secretary of State. He can choose not to serve a notice.’

Sullivan LJ said this at para 102:

‘If an appellant is served with a section 120 notice he is given no choice in the matter: he must state any reasons he may have … . The Secretary of State is not required to elicit those reasons if he does not wish to do so. Section 120 provides that he “….may by notice in writing require…” a statement of additional grounds.’

Discussion: preliminary

[40]It seems to me to be clear from this summary of the cases that Jackson LJ was entirely right when he said in the course of his very brief judgment in Sapkota, para 127, that ‘this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible.’ And that was said before the decision in Lamichhane had called into question aspects of the judgment of Aikens LJ, with which he agreed.

[41]As Jackson LJ immediately went on to say, there is a ‘need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.’ However, in light of the well established principle of stare decisis,this court cannot blithely ignore or overrule previous Court of Appeal decisions, and treat as virgin territory the interrelationship of the exercise of the Secretary of State’s powers(i) to grant or refuse an extension application and

(ii) to make a removal direction.

[42]Having said that, it seems to me difficult to reconcile the conclusions reached in the passages cited above from Lamichhane, which do appear to derive some support from the observations of Moore-Bick and Sullivan LJJ in AS (Afghanistan), with what was stated, indeed decided, in Mirza and Sapkota. It is true that those two cases can be said to be consistent with observations in AS (Afghanistan), in that Sedley LJ and Aikens LJ both accepted that the Secretary of State retained a discretion in some circumstances when to serve a section 120 notice, but it is hard to see what those circumstances might be: the reasoning in those cases reduces the discretion in almost every case to a duty.

Preliminary conclusions

[43]Subject to concern about stare decisis and subject to the allied concern to seek a solution which will minimise uncertainty, I would summarise my views in four propositions.

[44]First, while Laws LJ may well have been right in saying as he did in JM (Liberia) [2007] Imm AR 293, para 23, that the 2002 Act ‘leans in favour of what are called one-stop appeals’, Arden LJ in AS (Afghanistan), para 3, was also right in saying that the issue in a case such as this is ‘how far the 2002 Act “leans in favour of” such appeals’. That issue must turn on the structure and language of the legislation. On its face, in the light of the language used and particularly the word ‘may’, section 120(2) of the 2002 Act appears to confer a statutorily unfettered discretion on the Secretary of State whether to serve a one-stop notice, and section 47(1), for the same reason, appears to permit, but not require, a decision to be made about a removal direction while an appeal could be brought. Accordingly, unless bound by authority, I would have no hesitation in rejecting Mr Malik’s submission that ‘keeping in mind the underlying legislative policy and reading the statutes as a whole, the expression “may” in section 47(1) of the 2006 Act must mean “must”.’

[45]Of course, it is well established that the court should ensure that a statutorily conferred discretion is exercised consistently with the policy of the relevant statutory regime (see the famous case of Padfield v Minister of Agriculture, Fisheries and Food

[1968] AC 997

, e.g. per Lord Reid at 1030). However, it seems to me to go much too far to say that, because the Secretary of State is given the power, in any individual case,(i) to operate a one-stop appeal process (by sections 96 and 120 of the 2002 Act), or

(ii) to decide to give a removal direction to take effect when the leave as extended by section 3C(2)(b) of the 1971 Act expires (by section 47 of the 2006 Act), either or both of those powers must, save perhaps in unusual circumstances, be exercised.

[46]At least on the face of it, one can well see that the Secretary of State may wish to have the opportunity to operate a one-stop appeal process and to take advantage of the opportunity ‘to begin dealing with removal from the moment the initial leave expires’ (to quote from Mirza, para 21, cited above), but it is by no means apparent that a person who has unsuccessfully made an extension application should wish her to do so. The Secretary of State has an obvious interest in taking advantage of any provision which limits the number of appeals which such a person can make, restricts the number of new points which such a person can raise, and minimises the delay in removing such a person from the UK. Such a person, on the other hand, would not seem to have any obvious interest in such provisions being implemented.

[47]Secondly, it seems to me to be equally clear that public law and human rights norms must be observed by the Secretary of State in connection with the exercise of her powers under section 120 of the 2002 Act and section 47 of the 2006 Act. In particular, this may mean that, in many cases, the Secretary of State should(i) refuse the extension application and decide whether to make the removal direction at the same time, or

(ii) make the latter decision soon after deciding to refuse the extension application.

[48]The former course has the advantage of a single compendious decision, which may appear to be consistent with the policy of one-stop appeal which Laws LJ identified in JM (Liberia) [2007] Imm AR 293, para 23. However, I can see much to be said for the latter course. It seems odd for the Secretary of State to be considering whether to make a removal direction before deciding to refuse an extension application, because, if the application is granted, no question of removal could arise (as Aikens LJ acknowledged in Sapkota, para 101, where he ‘accept[ed] that the [Secretary of State] has to take the variation decision first’). Also, as Sedley LJ said in Mirza at para 41, a deferral of any decision as to whether to make a removal direction may well be justified to encourage the person concerned to leave the UK voluntarily – a more dignified and convenient arrangement for him or her, and a less expensive arrangement for the Secretary of State. Further, as Sedley LJ said two paragraphs later in his judgment, it may often be sensible, indeed fair, to enable a person to make representations about an unanticipated reason for refusing his or her extension application, before deciding whether to make a removal direction, and the obvious way to acquaint that person with the reason is in a refusal of the extension application. It is not as if the Secretary of State will necessarily know that a reason for refusing an extension application will be unanticipated. (Quite apart from this, there is the possible problem identified in Ahmadi v Secretary of State for the Home Department

[2012] UKUT 00147 (IAC)

with a composite refusal of an extension application and a removal direction, as explained by Stanley Burnton LJ in paras 76-79 below).

[49]The very fact that there is much to be said for the second course seems to me to undermine Mr Malik’s contention that section 47 of the 2006 Act is effectively mandatory. The cut-off date under section 47(1) is when the ‘leave … extended by section 3C(2)(b) of the [1971 Act] … ends’, which is, at best, when the appeal process against the refusal of an extension application has been exhausted (although in the light of the rather mysterious limitation to para (b) of section 3C(2) of the 1971 Act, it would seem highly arguable to be for a period expiring at the earlier of when an appeal is brought and when the time for appealing expires). To take a decision within this period will often be impossible, unless the Secretary of State and the person concerned (if he or she is to be given the opportunity to make further representations) are to be forced into an extraordinarily tight time frame.

[50]Thirdly, if the Secretary of State fails to decide whether to make a removal direction either at the same time as, or within a short time of, refusing an extension application, in a case where she ought to have done so (for public law or human rights reasons), I find it hard to accept that this could invalidate an otherwise unexceptionable decision to refuse the extension application. As a matter of logic, even if a statutory scheme has what Sedley LJ called (in Mirza, para 40) ‘a generalised practice’ that two decisions should be taken at the same time, I am not quite sure why one of those decisions should be unlawful just because it is taken on its own, given that it cannot be contingent or even dependent on the other.

[51]Given that in both Mirza and in Sapkota it was accepted that it would be quite appropriate for the decision-maker to make a removal direction some time after a rejection of an extension application, I have even greater difficulty with the notion that the rejection would be invalidated by a delayed removal direction. There are obvious problems with concluding that the rejection of an extension application becomes invalid unless a decision to make a removal direction is made ‘promptly thereafter’ or within ‘a short period’ thereafter (to quote from Sapkota and Mirza respectively). Not only is it both intellectually unattractive and administratively inconvenient for an executive decision to be potentially retrospectively invalidated, but there is inevitable room for doubt and argument about what constitutes ‘promptly’ or ‘a short period’ in a particular case.

[52]No doubt it was, at least in part, for this reason that Aikens LJ in Sapkota at para 101 suggested that the effect of the reasoning in Mirza was that a refusal of an extension application was unlawful if taken ‘in circumstances in which it is not contemplated that the removal decision will be promptly taken thereafter and there is no good reason for that delay’. If Mirza is correct, then that is as good an analysis as I can conceive, but it is still not very satisfactory. Not only is there still the uncertainty about what is ‘prompt’, but, instead of the problem of prospective retrospective unlawfulness, there is the problem that the person concerned will not know what was in the contemplation of the Secretary of State when she refused the extension application. Further, obvious problems can arise if Aikens LJ has identified the correct analysis. What if the Secretary of State had no intentions either way with regard to a removal direction at the time of refusing the extension application, but a removal direction is nonetheless issued promptly; or what if the Secretary of State intended at the time of refusing the extension application to issue a removal direction promptly, but for some reason then failed to do so?

[53]Fourthly, I consider that the court in Mirza was over-impressed with the argument that the Secretary of State should deal very promptly with the question of a removal direction, as a person whose leave to remain has expired will be committing a criminal offence by remaining in the UK. Where a person makes an extension application after his or her leave to remain has expired, section 3C of the 1971 Act would not apply, so that such a person commits a criminal offence notwithstanding the fact that he or she has made an extension application. Thus, many people to whom the reasoning in Mirza and Sapkota would apply would be in breach of the criminal law anyway. Further, again applying the reasoning in those two cases, in many instances where the decision whether to make a removal direction could be made after the refusal of the extension application, the person concerned will be committing a crime, because the effect of section 3C of the 1971 Act will either not apply (as there will have been no appeal), or the time for appealing will have expired, before the removal direction will have been given.

[54]In any event, the disadvantage to a person of having his or her remaining in the UK being criminalised can easily be overstated. Most obviously, at least in many cases (but, I accept, not in all) the problem can be rectified by the person concerned voluntarily leaving the UK. Further, the mere fact that a person is illegally in the UK does not prevent him or her exercising any rights of appeal against a refusal of an extension application or the making of a removal direction.

[55]For these reasons, I would, if it were proper to do so, refuse this appeal on the ground that, even if the Secretary of State should have intended to issue, or should have issued, a removal direction in relation to the appellants promptly, and did not do so, that will not have invalidated her decision to refuse the extension application made by the appellants.

Stare decisis and practicalities

[56]Is that a conclusion which I can or should properly arrive at?

[57]In my judgment, it is. It appears to me that we are faced with irreconcilable decisions of this court, namely Mirza and Sapkota as against Lamichhane. If it had not been for the reasoning in Lamichhane, I may well, albeit with reluctance, have taken the view that, at this level, we would have been obliged to follow the reasoning in Mirza, as the court did in Sapkota; indeed, that view would have been rather reinforced by the very careful reasoning and conclusions contained in the judgment of Aikens LJ in Sapkota.

[58]However, it seems to me clear that the reasoning in Lamichhane is irreconcilable with the two earlier decisions. Mr Malik’s case for the appellants is based, as already mentioned, on the proposition that ‘the expression “may” in section 47(1) of the 2006 Act must mean “must”’. That can only be justified by the reasoning in Mirza, and it is that reasoning which is expressly rejected in Lamichhane.

[59]In those circumstances, the highest that it can be put for the appellants is that we are free to choose between the two approaches – see Young v Bristol Aeroplane Co Ltd

[1944] KB 718

, 725-6. On that basis, for the reasons which I have given in the preceding section of this judgment, I would follow Lamichhane rather than Mirza. In fact, there is a strong argument for saying that it would anyway be more appropriate to follow the later decision. In Minister of Pensions v Higham

[1948] 2 KB 153

, 168, Denning J referred to ‘the general rule that where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred, if it is reached after full consideration of the earlier decision’ – a principle applied by Nourse J in Colchester Estates (Cardiff) v Carlton plc

[1986] Ch 80

, 85. Although that referred to first instance decisions, I consider that it also has force in relation to decisions of this court. The notion that we should reject the reasoning in Mirza in favour of that in Lamichhane is reinforced by the fact the earlier decision seems to be inconsistent with clear views unequivocally expressed in the previous decision of this court in AS (Afghanistan).

[60]It is true that Mirza was followed in Sapkota, but there appears to have been no argument in the latter case that Mirza was wrong in effectively deciding that the requirements in section 120 of the 2002 Act and section 47 of the 2006 Act were mandatory in the great majority of cases. That was effectively accepted by both sides in Sapkota, where the argument was centred on the issue which is raised by the Secretary of State in this case (see para 20 above), and which I have not so far considered.

[61]As for practical considerations, it is clear that the Secretary of State is inconvenienced by the procedure imposed on her by Mirza. It also appears that there would be no question of any upheaval being caused to the UK Borders Agency if we refuse to follow Mirza, as we specifically raised that possibility with Mr Roe, and he maintained the contention that Mirza and Sapkota were wrongly decided and ought not be followed. It is also apparent from the recent decision in Ahmadi

[2012] UKUT 00147

that there would at least be a risk that the procedure thereby imposed would be open to attack on grounds of unlawfulness. Further, I cannot see significant, if any, prejudice to unsuccessful applicants for extension if the decision to remove them is delayed: on the contrary.

Conclusion

[62]As to the second issue, it is unnecessary to decide it, but, if I had reached the conclusion that we should follow Mirza and Sapkota on the issue raised by the appellants, then I would have reached the same conclusion on the issue raised by the Secretary of State.

[63]I have not dealt with the reasons which the UT gave for reaching the same conclusion as I have done, because the issue is complex enough without setting out reasoning which can be seen from reading the decision. However, I mention that to emphasise that I intend no disrespect to the UT’s full and careful decision.

[64]As it is, for the reasons given above, and for the reasons given by Stanley Burnton LJ, I would dismiss this appeal.

Lord Justice Stanley Burnton:

[65]I entirely agree with the judgment of the Master of the Rolls. I wish only to emphasise some of the reasons that have led me to conclude that this appeal should be dismissed.

[66]First, and perhaps most importantly, merits. This case is not untypical. It is now accepted that the decision of the Secretary of State refusing further leave to remain was, viewed in isolation, entirely lawful. In my judgment, there is no good reason why that decision should have been retrospectively invalidated by the fact that the Secretary of State did not within a short time thereafter decide to remove the appellants. Retrospective invalidation is a creature unknown to the common law.

[67]Do the applicable statutory provisions permit or require a different conclusion? The powers to grant, and to limit or to qualify, leave to enter or to remain and the powers to issue removal directions are conferred by separate statutory provisions. Leave to enter or to remain is the subject of section 3 and the following sections of the Immigration Act 1971. Removal directions are the subject of sections 8 to 11 of the 1971 Act, section 10 of the 1999 Act or section 47 of the 2006 Act. There is nothing in the text of any of these provisions that expressly or, in my judgment impliedly, requires decisions as to leave to be made together with the decision to give removal directions, or the decision on removal to be given within a short time of the decision as to leave.

[68]Where Parliament has conferred separate powers in separate provisions, with no indication in their wording that the exercise of one power is to be dependent on the exercise of the other, it seems to me difficult, if not impossible, to construe the lawfulness of the exercise of one power (in relation to leave to remain) as dependent on the exercise of another (the issue of removal directions). In Mirza, the removal directions had been issued under section 10 of the 1999 Act. It is implicit in the decision of the Court that the lawfulness of the decision to refuse to extend leave to remain, conferred by section 3 of the 1971 Act is dependent on the exercise of a separate power, under a separate and later statute, as to the issue of removal directions. Parliament could have created such a dependency, but there is nothing in the later statute to suggest that it intended to do so.

[69]Considerations of fairness and efficiency do not justify the imposition of such dependence of the lawfulness of one decision on the making of the other where Parliament has not done so.

[70]Consistently with this, section 82 of the 2002 Act confers separate rights of appeal against adverse immigration decisions on leave and on removal. Decisions to refuse leave to enter, or to vary a person’s leave to enter or to remain, for example, are the subject of paragraphs (a), (d) and (e) of subsection (2), whereas decisions to remove are the subject of paragraphs (g) to (ia) inclusive, and give rise to their own independent rights of appeal. If decisions as to the refusal of leave had to be taken together with or promptly after decisions as to removal, Parliament would not have conferred separate rights of appeal in section 82.

[71]There are, moreover, good reasons why Parliament should not have required the Secretary of State to make the two decisions together. Why, I ask rhetorically, should the Secretary of State not assume that a person whose leave expires, or is revoked, will leave voluntarily? The implication of the decisions in Mirza and Sapkota is that such persons will always remain in this country unlawfully unless removal directions are given. I think that the Secretary of State is entitled to wait and see before she incurs the costs involved in the issue of removal directions.

[72]Furthermore, the statutory provisions are clear in conferring a discretionary power to give removal directions and not a duty. Each of the provisions referred to in paragraphs (g) to (ia) of section 82(1) uses the word “may”, and none “must”. So, if the Secretary of State refuses to vary a person’s leave with the result that that person has no leave to remain (paragraph (d)), it is not possible to imply that the Secretary of State owes a duty to that person to give removal directions. It is particularly inappropriate to impose a duty on the Secretary of State by interpretation where the act in question, the issue of removal directions, involves a cost that is borne by the Secretary of State: see section 10(9) of the 1999 Act and section 47(4) of the 2006 Act. If a person complies with his obligation to leave this country on expiry of his leave (section 10(1)(a) of the 1999 Act), he or she pays for his own ticket; if the Secretary of State gives a removal direction to an airline (see regulation 3 of the Immigration (Removal Directions) Regulations 2000 SI 2000/2243) for the removal of an overstayer, the Secretary of State pays.

[73]In my judgment, on the principal point we have to decide, the legislative provisions are clear. Section 10 of the Immigration and Asylum Act 1999 confers a power to remove persons in the cases listed in the various paragraphs under section 10(1) “in accordance with directions given by an immigration officer”. There is nothing in section 10 imposing a duty on the Secretary of State or an immigration officer to give such directions. Section 47 of the 2006 Act provides that in the circumstances to which it applies the Secretary of State “may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends”. This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the Court to interpret it as imposing a duty. For the Court to do so is to amend the legislation, not to interpret it.

[74]I have emphasised the impossibility of imposing a duty on the Secretary of State to issue removal directions because, in the absence of such a duty, it is difficult to see the utility of making the decision to refuse leave to remain (for example) dependent on the decision whether or not to issue removal directions. So far as an overstayer is concerned, it makes no difference to his legal position if the Secretary of State decides not to issue removal directions, or to defer deciding whether to issue removal directions. It is only if the Secretary of State is under a duty to and does issue removal directions that an immigration decision is made giving rise to a right of appeal. It seems to me that although in paragraph 46 of Mirza Sedley LJ referred to “an unjustified deferral of a decision on removal”, he must have meant “an unjustified deferral of a decision to remove” and thus was interpreting the legislation as imposing a duty, owed to overstayers, to issue directions for their removal.

[75]Quite apart from these considerations, I wish to underline my agreement with paragraphs 50 and 51 of the judgment of the Master of the Rolls. As I indicated above, to hold that an otherwise lawful decision, for example to refuse to extend leave to remain, becomes unlawful because the Secretary of State fails to make a decision to remove within a short period thereafter would be to create a principle of retrospective unlawfulness or invalidity that was, until the decision in Mirza, unknown to the law. Parliament could, of course, provide that the decision on leave would only be lawful if a decision on removal were made within a defined time thereafter, but it has not done so. Aikens LJ in Sapkota was conscious of this difficulty with the decision in Mirza, which is evidently why he adopted, in paragraph 101 of his judgment, the formulation that the Secretary of State must contemplate that the removal decision will be taken promptly after the decision on leave. But, as the Master of the Rolls points out, this creates its own legal and practical difficulties. The contemplation of a decision maker as to when or even whether he will make a separate decision under a separate statutory provision has never been a ground for judicial review. Moreover, putting aside cases where a decision maker has made a decision for an improper purpose, how is the person affected by the decision to know or to ascertain what was the contemplation of the decision maker? What if the decision maker changes his mind, or forgets to do what he contemplated earlier? What if when refusing to extend leave to remain he did not contemplate making a decision on removal, but in fact does make that decision shortly after? What if the decision to remove is not made “promptly” (whatever that means) after the decision to refuse to extend leave, but is made at a later date? None of these questions is susceptible of an acceptable answer.

[76]Lastly, I refer to the recent determination of Upper Tribunal Judge Peter Lane in Ahmadi v Secretary of State for the Home Department

[2012] UKUT 00147 (IAC)

. As a result of the decisions of this Court in Mirza and Sapkota the Secretary of State adopted the practice of incorporating in a single written notice her decision to refuse to grant or to extend leave and her decision to issue removal directions. That, indeed, was what the Court in Mirza had advised. In Ahmadi,the appellant, represented by Mr Malik, challenged the lawfulness of this practice. Mr Malik’s submissions were accepted and his challenge to the practice of the Secretary of State succeeded. The Senior Immigration Judge held that:

“A removal decision under s. 47 of the Immigration, Asylum and Nationality Act 2006 cannot be made in respect of a person until written notice of the decision to refuse to vary that person’s leave to remain has been given to that person. The current practice of the Secretary of State to incorporate both decisions in a single notice is accordingly incompatible with the relevant legislation.”

[77]The basis for the decision is summarised in paragraph 15 of the determination:

“… section 47, far from mandating the practice described in the [Secretary of State’s] Guidance, that a decision under that section “should be included in the decision letter curtailing or refusing to vary leave”, in fact prevents such a practice. The section 47 decision can be taken only after the leave to enter or remain is extended by section 3C(2)(b) [of the Immigration Act 1971]; and that can happen only while an appeal against the decision regarding leave “could be brought”

. Such an appeal may be brought only once the person has been given written notice of the decision.”

[78]Senior Immigration Judge Lane held that it follows that “as the legislation stands, the Secretary of State cannot make a removal decision at the same time as a decision refusing to vary leave, or (for practical purposes) before a person’s s. 3C leave begins”.

[79]The determination in Ahmadi was promulgated on 14 May 2012, after the hearing of this appeal, and we have not had the submissions of the parties as to its correctness. I would only say that if it is correct, it is impossible to reconcile Mirza and Sapkota with the applicable legislation, and for that reason too I would refuse to follow those decisions.

Lady Justice Hallett:

[80]I agree with both judgments.

Cited in 23 later judgments

and 14 more of the most senior