Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512

[2013] EWCA Civ 512Case No C5/2012/1681 andC5/2012/2275
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UT JUDGE LANE
[2012] UKUT 00147 (IAC) (AA/08367/2009)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/05/2013
Before
LORD JUSTICE SULLIVANLORD JUSTICE BRIGGSSIR STANLEY BURNTON
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantJAVAD AHMADIRespondentJAVAD AHMADIAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Blundell (instructed by Treasury Solicitors) for Secretary of StateZane Malik (instructed by Messrs Malik Law Solicitors) for Mr. AhmadiHearing Hearing date: 22 nd April 2013
Judgment

Introduction

[1]There are two appeals before the Court, one by the Secretary of State who was the Respondent below and the other by Mr. Ahmadi, against the determination dated 25th April 2012 of the Upper Tribunal, which is reported as Ahmadi (s 47 decision: validity; Sapkota) [2012] UKUT 000147 (IAC).[2]A Notice of Immigration Decision dated 27th July 2009 contained both a refusal of Mr. Ahmadi’s application for variation of his leave to remain in the UK (“the variation decision”) and a decision that he should be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) (“the removal decision”).[3]The Upper Tribunal dismissed Mr. Ahmadi’s appeal. It concluded that while the removal decision was invalid, there was no error of law in the determination dated 21st November 2009 of the First-tier Tribunal, which had dismissed Mr. Ahmadi’s appeal against both the variation decision and a decision to remove him under section 47 of the 2006 Act. I refer to a decision to remove Mr. Ahmadi under section 47 because there was an issue before the First-tier Tribunal as to whether there had in fact been any decision to remove Mr. Ahmadi from the UK. The First-tier Tribunal concluded that there had been such a decision and dismissed Mr. Ahmadi’s appeal against it. The existence of the notice dated 27th July 2009 containing both the variation decision and the removal decision was not disclosed by the Secretary of State until 6th July 2011.[4]The Secretary of State appeals against the Upper Tribunal’s decision that the removal decision was invalid. On reading Mr. Malik’s Skeleton Argument on behalf of Mr. Ahmadi, I had thought that he was pursuing the argument rejected by the Upper Tribunal in paragraph 28 of its determination, that the variation decision was not lawful because it was not accompanied by a lawful removal decision, but in his oral submissions Mr. Malik explained that this was not the basis on which Mr. Ahmadi was appealing against the Upper Tribunal’s determination. He accepted that the variation decision was lawful. The challenge to the Upper Tribunal’s determination was made on a much more limited basis: having concluded that the removal decision was invalid but the variation decision was valid, the Upper Tribunal should not have simply dismissed Mr. Ahmadi’s appeal against the determination of the First-tier Tribunal, it should have dismissed his appeal against the variation decision and allowed his appeal against the removal decision. Mr. Blundell accepted on behalf of the Secretary of State that this would be the appropriate order if the Secretary of State’s appeal was dismissed. In these circumstances I need say no more about Mr. Ahmadi’s appeal.

Statutory framework

[5]The relevant provisions of section 47 are as follows:
“47 removal: persons with statutorily extended leave (1) Where a person’s leave to enter or remain in the United Kingdom is extended by section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971 (extension pending appeal), 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. (2) Directions under this section may impose any requirements of a kind prescribed for the purpose of section 10 of the Immigration and Asylum Act 1999 (removal of persons unlawfully in United Kingdom). (6) In section 83(2) of the Nationality, Immigration and Asylum Act 2002 (right of appeal: general) after paragraph (h) insert – (ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave).”
[6]The power to grant leave to enter or remain in the United Kingdom is conferred by section 3 of the Immigration Act 1971 (“the 1971 Act”). The relevant provisions in section 3 are as follows:
“3 - General provisions for regulation and control (1) Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (3) In the case of a limited leave to enter or remain in the United Kingdom, - (a) a person’s leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, …”
[7]The relevant provisions of sections 3C and 3D of the 1971 Act are as follows:
“3CContinuation of leave pending variation decision (1) This section applies if – (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, (b) the application for variation is made before the leave expires, and (c) the leave expires without the application for variation having been decided. (2) The leave is extended by virtue of this section during any period when – (a) the application for variation is neither decided nor withdrawn, (b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or (c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act). (6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations – (a) may make provision by reference to receipt of a notice, (b) may provide for a notice to be treated as having been received in specified circumstances, (c) may make different provision for different purposes or circumstances, (d) shall be made by statutory instrument, and (e) shall be subject to annulment in pursuance of a resolution of either House of Parliament.” 3D Continuation of leave following revocation (1) This section applies if a person’s leave to enter or remain in the United Kingdom – (a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or (b) is revoked. (2) The person’s leave is extended by virtue of this section during any period when - (a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or (b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).”
[8]Section 4(1) of the 1971 Act provides:
“4 – Administration of control. (1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a) (whether as regards duration or conditions), shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected, except that the powers under section 3(3)(a) may be exercised generally in respect of any class of persons by order made by statutory instrument.”
[9]The relevant provisions of section 10 of the Immigration and Asylum Act 1999 (“the 1999 Act”) which makes provision for the removal of certain persons unlawfully in the United Kingdom, are as follows:
“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, he does not observe a condition attached to the leave or remains beyond the time limited by the leave”
[10]The right of appeal against immigration decisions is conferred by section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), which provides, so far as relevant:
“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 - …… (d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (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, (ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave).”
[11]Section 105 of the 2002 Act provides that:
“105 Notice of immigration decision (1) The Secretary of State may make regulations requiring a person to be given written notice where an immigration decision is taken in respect of him. (2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state- (a) that there is a right of appeal under that section, and (b) how and when that right may be exercised. (3) The regulations may make provision (which may include presumptions) about service.”
[12]The Immigration (Notices) Regulations 2003 (“the 2003 regulations”) made under section 105 provide that:
“4. - Notice of decisions (1) Subject to regulation 6, [which is not relevant] the decision-maker must give written notice to a person of any immigration decision or EEA decision taken in respect of him which is appealable.”
[13]The Immigration (Continuance of Leave) (Notices) Regulations 2006 (“the 2006 Regulations”), made under section 3C(6) of the 1971 Act provide that:
“2. Decision on an application for variation of leave For the purpose of section 3C of the Immigration Act 1971 an application for variation of leave is decided – (a) when notice of the decision has been given in accordance with regulations made under section 105 of the Nationality, Immigration and Asylum Act 2002; or where no such notice is required, (b) when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971.”
[14]Finally, the Asylum and Immigration Tribunal (Procedure) Rules 2005 (“the 2005 Rules”) made under section 106 of the 2002 Act [subsections 106(1) and (2) have since been repealed and replaced by powers contained in the Tribunals, Courts and Enforcement Act 2007] prescribe the time limit for appeals to the First-tier Tribunal under section 82 of the 2002 Act. Rule 7 (1) provides:
“7. – Time limit for appeal (1) A notice of appeal by a person who is in the United Kingdom must be given – (a) if the person is in detention under the Immigration Acts when he is served with notice of the decision against which he is appealing, not later than 5 days after he is served with that notice: and (b) in any other case, not later than 10 days after he is served with notice of the decision.” “8. – Form and contents of notice of appeal (2). The notice of appeal must be accompanied by – (a). the notice of decision against which the appellant is appealing or, if it is not practicable to include the notice of decision, the reasons why it is not practicable; and ….”

The Upper Tribunal’s determination

[15]In paragraph 14 of its determination the Upper Tribunal referred to Chapter 51.3 (Administrative Removal Procedure) of the Secretary of State’s Enforcement Instruction Guidance which deals with the circumstances in which the power conferred by section 47 is to be used, and advises officials taking decisions on behalf of the Secretary of State that:
“a decision to administratively remove is made at the same time as a variation or curtailment decision. The section 47 decision should be included in the decision letter curtailing or refusing to vary leave.”
[16]The notice dated 27th July 2009 which contains both the variation decision and the refusal decision accords with the practice described in this guidance. We were told by Mr. Blundell that it was anticipated that the practice of giving such a “combined” notice would be followed by the Secretary of State in some 20,000 cases in 2012. Before the Tribunal and this Court Mr. Malik submitted that this practice was unlawful because a section 47 decision can be taken only after the person’s leave to enter or remain has been extended by section 3C(2)(b); leave is extended by section 3C(2)(b) when an appeal under section 82(1) could be brought against the decision on the application for variation; there can be no such appeal until there has been a decision on the application for variation; and the application for variation is decided when notice of the decision has been given: see section 3C(6), and regulation 2 of the 2006 Regulations.[17]The Upper Tribunal accepted this submission “without any enthusiasm” (paragraph 19). It said that the Secretary of State’s policy of giving a combined decision as to both leave and removal was entirely understandable and sensible, and was in accordance with the “one stop” principle enshrined in section 120 of the 2002 Act (paragraph 17). The Upper Tribunal recognised that accepting Mr. Malik’s submission would mean that, in practice the usefulness of section 47 would be “highly questionable” (paragraph 23): “If the removal decision cannot be made contemporaneously with the decision regarding leave, the respondent will have only the short period of time prescribed in rule 7(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, within which to make and communicate the s. 47 removal decision. But, ….. the respondent will not, in practice, be able to assume she has the entirety of the period prescribed in Rule 7(1) within which to make a s. 47 decision, since as soon as the person concerned gives notice of appeal to the First-tier Tribunal against the variation decision, his or her leave is no longer extended by s. 3C(2)(b) but, rather, by s. 3C(2)(c). As the respondent will not immediately be aware this has happened (see rule 12(1) of the 2005 Rules), the respondent can have no confidence that any s. 47 decision made after s. 3C(2)(b) leave has started to run will be a valid decision.” (paragraphs 17 and 18)[18]The Upper Tribunal explained in paragraph 20 of its determination why it felt constrained to accept Mr. Malik’s submission as to the proper interpretation of section 47:
“Where it not for the Immigration (Continuation of Leave) (Notices) Regulations 2006, it might have been possible to adopt a construction of s. 47(1) and s. 3C(2)(b), to the effect that, after an application has in reality been decided by the respondent, s. 3C(2)(b) applies for the purposes of s. 47, even before the decision is communicated in writing to the person concerned, which is the point at which he or she will realise that there is a right of appeal to the First-tier Tribunal. However, even without the 2006 Regulations such a construction would be open to serious objection. In the light of regulation 2 of those Regulations it is, I find, impossible to take that course. Until notice of the decision has been given in writing, the application has not even been decided, for the purposes of s. 3C(2)(a). Accordingly, s. 3C(2)(b) has no application, for the simple reason that there is no “decision on the application for variation.”

The Secretary of State’s grounds of appeal

[19]There are three grounds of appeal:(1) The Upper Tribunal erred in construing section 47 in the light of the 2006 Regulations.(2) If the 2006 Regulations were relevant, the Upper Tribunal erred in adopting an interpretation which meant that Parliament in enacting section 47 had legislated in vain, an absurd result which the Upper Tribunal should have avoided by adopting the Secretary of State’s construction of section 47.(3) The Upper Tribunal’s construction of section 47 was erroneous because it defeated the statutory purpose and intention of Parliament, and recourse to Hansard was justified under the rule in Pepper (Inspector of Taxes) v Hart [1993] AC 593 in order to establish Parliament’s intention. Discussion Ground 1

Discussion

[20]Mr. Blundell submitted that the 2006 Regulations, and hence the 2003 Regulations, had no application in construing section 47 because the 2006 Regulations were enacted for a different purpose, that of determining when an application was “decided” for the purpose of section 3C(1)(c) and section 3C(2)(a), and they had no application to section 3C(2)(b) and section 3D(2)(a). The focus in sections 3C(2)(b) and 3D(2)(a) was not on when an application was decided, but on when an appeal could be brought under section 82(1), and an appeal can be brought under section 82(1) “where an immigration decision is made in respect of a person.” Sections 82 and 105 clearly distinguish between the making, or taking (there is no practical difference), of an immigration decision, and giving written notice of the decision that has been made or taken. An appeal under section 82 can be brought once an immigration decision (the refusal to vary leave) “is made” even if it has not been notified to the person concerned. Rule 7 of the 2005 Rules prescribes by reference to the date of service of the notice of decision the end of the period within which an appeal may be brought, but it does not define the time from which an appeal under section 82 may be brought. That time runs from the making of the decision, not from the notification of the decision.[21]Mr. Blundell submitted that the same distinction between the decision and notification of the decision was to be found in section 4(1) of the 1971 Act. In support of that submission he relied on two authorities: Rafiq v Secretary of State for the Home Department [1998] Imm IR 193, and R (Hashmi) vSecretary of State for the Home Department [2002] INLR 377, [2002] EWCA Civ 728. In Rafiq the Home Office had endorsed the appellant’s passport with an indefinite leave stamp, then cancelled the stamp on receipt of new information, and then after a long delay returned the passport to the appellant with the leave stamp cancelled. The appellant argued that a decision to grant indefinite leave had been made when the passport was stamped. On behalf of the Secretary of State it was submitted that this argument accorded no weight to the word “given” in section 4:
“communication” of the decision was indispensable and “the process was not complete without such communication”
(p. 198). Counsel for the Secretary of State drew the Court’s attention to the Divisional Court’s decision in R v Yeovil Borough Council ex parte Trustees of Elim Pentecostal Church Yeovil [1971] 23 P & CR 59, that there was in law no planning permission unless and until written notice of the local planning authority’s decision had been given to the applicant. The Court of Appeal accepted the Secretary of State’s submission (pp 199 – 200). Hirst LJ said that section 4(1) required “communication”, and observed that the Yeovil case was consistent with the Secretary of State’s argument, but was not of particular significance because it was concerned with different statutory provisions operating in a different field of law (p 200). Rafiq is not referred to in Sir Swinton Thomas’s judgment, with which Kay and Brooke LJJ agreed, in Hashmi. In that case there were two issues: whether a letter dated 11th July 2000 was a decision to grant indefinite leave, and whether notice in writing had been given to the appellant as required by section 4(1). The Court answered both of these questions in the affirmative.[22]I readily accept Mr. Blundell’s submission that the 2002 Act, in sections 82 and 105 draws a distinction between making, or taking an immigration decision, and giving written notice of that decision to the person concerned. I do not accept his submission that the same approach is to be found in the 1971 Act. Section 3 confers the power to give and to vary leave to remain. The first part of section 4(1) provides that this power shall be exercised by the Secretary of State. The second part of section 4(1) provides that the power “shall be exercised by notice in writing given to the person concerned.” The notice in writing is not a subsequent step following the exercise of the power, it is the way in which the power is to be exercised. Mr. Blundell’s submission invites us to read section 4(1) as though it said:
“and notice in writing shall be given to the person concerned of the exercise of the power.”
[23]The authorities relied upon by Mr. Blundell, Rafiq and Hashmi, do not support his submission. Hashmi turned on its own facts and established no point of principle, while Rafiq tends to support Mr. Malik’s submission: that the decision-making process prescribed by section 4(1) (and section 3C(6) and rule 2 of the 2006 Regulations) is not the making of a decision followed by the notification of that decision to the person concerned, but the making of a decision by giving notification of it to the person concerned. Although the Court, for understandable reasons given the very different legislative context, did not consider that the Yeovil case was of particular significance, it did consider that the proposition that there was no planning permission unless and until notice of planning permission had been given to the applicant was consistent with the Secretary of State’s case on section 4(1), which it accepted.[24]Section 3C(6) and the 2006 Regulations are consistent with section 4(1). The 2006 Regulations do not determine when notice is to be given of a decision on an application for variation of leave, they determine when an application is decided for the purposes of section 3C: it is not decided until notice has been given. I do not accept Mr. Blundell’s submission that the 2006 Regulations apply only for the purpose of determining when an application is “decided” in paragraphs 3C(1)(c) and (2)(a), and have no application to paragraph 3C(2)(b). The 2006 Regulations determine when an application for variation of leave is decided for the purposes of section 3C as a whole. There has to be a consistent approach to this question throughout the section. Paragraph 3C(2)(b) extends leave during any period when an appeal could be brought under section 82(1) of the 2002 Act against the decision on the application for variation. Before an appeal can be brought under section 82 there has to be a decision on the application for variation against which the person can appeal. Subsection 3C(6) and the 2006 Regulations make it clear that there is no decision on the application for variation for the purpose of paragraph 3C(2)(b) until notice of the decision has been given.[25]Mr. Blundell accepted that on the Secretary of State’s approach to section 3C there was an overlap between the extension of leave under paragraph (a) of subsection 3C(2) – until notice of the decision was given – and leave beginning to be extended under paragraph (b) – when the decision was “made” prior to notice of the decision being given. In my judgment, subsection 3C(6) requires a consistent answer to the question – when is an application decided for the purpose of section 3C – and the answer to that question for the purpose of paragraph (b) is that there is no decision against which an appeal can be brought under section 82(1) until notice of the decision has been given. Mr. Blundell submitted that this would result in an inconsistency between paragraphs 3C(2)(b) and 3D(2)(a) because subsection 3C(6) applies only to the former, and not the latter. This submission is based on the Secretary of State’s erroneous approach to section 4(1) (see paragraphs 22 and 23 above): the power to vary leave under section 3(3)(a) is exercised by notice in writing given to the person affected. Giving the notice does not follow the exercise of the power, it is the manner in which the power is exercised. For these reasons I would reject ground 1 of the Secretary of State’s appeal.

Ground 2

[26]Mr. Malik acknowledged that the Upper Tribunal’s acceptance of his submission as to the ambit of section 47(1) had made the exercise of the power conferred by the section “administratively inconvenient”, but he submitted that the section was not “completely unworkable” on the Upper Tribunal’s interpretation, and the Secretary of State could in any event exercise the power conferred by section 10 of the 1999 Act (paragraph 9 above). I accept Mr. Blundell’s submission that section 47 was intended to fill the gap that was left by section 10. Under section 10 removal directions may not be given until after leave has expired. If leave is extended under section 3C until an appeal against a refusal to vary leave is finally determined a substantial period may elapse before a removal decision can be made under section 10. Section 47 was enacted to enable a removal decision to be taken prior to the expiration of leave, so that removal could be effected “if and when leave ends.”[27]I agree with the Upper Tribunal that if the Secretary of State’s interpretation of section 3C(2)(b) is not accepted the present usefulness of section 47(1) is “highly questionable” for the reasons given by the Upper Tribunal in paragraphs 17 and 18 of its determination. The decision to remove under section 47(1) may not be made until leave to enter or remain has been extended by section 3C(2)(b), but may not be made once an appeal has been brought and is pending: see section 3C(2)(c). Although notice of a variation decision will be deemed to have been served on the second working day after posting (see paragraph 12 above), the recipient may be able to prove either that he received the notice the day after posting, and promptly appealed, thereby preventing service of a removal notice under section 47(1), or that he did not receive the notice until, say, three days after it was posted, in which case a removal decision made by the Secretary of State on the second day would be premature. On any basis, the 10 day window of opportunity under section 3C(1)(b) is a very narrow one, and the Secretary of State cannot be sure either when it commences – because service on the second day is deemed only if the contrary is not proved – or when it ends – because the appellant’s notice of appeal is filed with the First-tier Tribunal, which serves a copy on the Secretary of State as soon as reasonably practicable thereafter (see paragraph 14 above). It should be noted that these practical obstacles to the giving of “combined” variation and removal decisions, or to taking the two decisions within a short time of each other, were not considered by this Court in the series of cases which culminated in Patel v Secretary of State for the Home Department [2012] EWCA Civ 741. All of those cases were conducted on behalf of the Appellants on the opposite premise: that the Secretary of State had power to take the two decisions – on variation and removal – at or about the same time; and the issue between the Appellants and the Secretary of State was whether she was bound to exercise that power in the absence of a good reason to the contrary, or whether she was free to take a variation decision and defer taking a removal decision until a later stage.[28]Mr. Blundell submitted that the practical obstacles to the exercise of the section 47(1) power meant that Parliament had enacted the section in vain, which was an absurdity, and the Upper Tribunal should have adopted the Secretary of State’s interpretation of sections 47(1) and 3C(2)(b) in order to avoid that absurdity. He referred us to a number of authorities which establish the proposition that where the statutory language in question is capable of more than one meaning the interpretation which leads to a reasonably practicable result should be adopted, and an interpretation which leads to absurdity or unworkability should be rejected. The principle is not in doubt, but the Upper Tribunal concluded, correctly in my view for the reasons set out in paragraphs 22-25 above, that the statutory language was clear and did not admit of more than one interpretation.[29]Mr. Blundell referred to the Upper Tribunal’s observation in paragraph 20 of its determination that, were it not for the 2006 Regulations it might have been possible to adopt a different construction of section 47(1) and 3C(2)(b), and criticised the Upper Tribunal’s reliance on the 2006 Regulations as the reason why it concluded that it was “impossible” to adopt such a construction. However, this criticism of the Upper Tribunal’s determination is, in substance, a repetition of the Secretary of States’s submission in ground 1: that the 2006 Regulations were relevant for the purpose of paragraph (a) of subsection 3C(2), but were not relevant for the purpose of paragraph (b) of the subsection. I have explained why I do not accept that submission: see paragraphs 22-25 above. There is only one way to interpret subsection 3C(6) and regulation 2 of the 2006 Regulations. There is a “decision on the application for variation” for the purpose of paragraph (b) of subsection 3C(2) when notice of the decision has been given in accordance with the 2003 Regulations, and not before. Until there is such a decision there is nothing against which an appeal can be brought under section 82(1) of the 2002 Act. As enacted, section 47(1) is of little practical use. The remedy lies in Parliament’s hands. Section 51 of the Crime and Courts Act 2013 which substitutes a new version of section 47(1), received the Royal Assent on 25th April 2013.

Ground 3

[30]Section 47 was introduced by way of amendment no. 42 to the Immigration, Asylum and Nationality Bill in the House of Lords. Mr. Blundell relied upon the following statement of Baroness Ashton of Upholland when introducing the amendment on 7th February 2006 (columns 520-521):
“Finally, Amendment No. 42 creates a new power to make a decision to remove someone from the United Kingdom. The intention behind the amendment is to allow the enforcement decision to be made at the same time as the decision to revoke, curtail or refuse to vary leave. When two such decisions are made before an appeal is lodged, the tribunal will, by virtue of Section 85(1) of the 2002 Act, be required to deal with matters in a single set of appeal proceedings. That will address the issue of variation and removal decisions, triggering the separate appeal. During the single appeal against both decisions, appellants will have continuing leave and may remain in the United Kingdom.”
[31]There are two principal difficulties with this submission. Firstly, the intention behind the enactment of section 47 in the 2006 Act is clear, but whether that intention was carried into effect depends, not upon the wording of section 47 itself, but on when leave is extended by section 3C(2)(b) or 3D(2)(a) of the 1971 Act, and the answer to that question is to be found in section 3C(6), and the 2006 Regulations made thereunder, and section 4(1) of the 1971 Act, which were not mentioned in Baroness Ashton’s statement. The second difficulty is that while Hansard may in certain limited circumstances be an aid to interpretation if there is ambiguity in an enactment, there is no ambiguity in section 3C(6) of the 1971 Act and regulation 2 of the 2006 Regulations: there is no decision on an application for variation of leave against which an appeal can be brought under section 82(1) until notice of the decision has been given in accordance with the 2003 Regulations.

Conclusion

[32]I would dismiss the Secretary of State’s appeal, and allow Mr. Ahmadi’s appeal to the limited extent of substituting an order dismissing his appeal against the variation decision, but allowing his appeal against the removal decision.

Sir Stanley Burnton:

[33]I agree.[34]I also agree.

Cited in 19 later judgments

and 10 more of the most senior