Oboh & Ors, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 514

Case Nos: C4/2014/1380, 1471, 1474, 0817 and 1874[2015] EWCA Civ 514
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 967 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Burnett
AND ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 21 st May 2015
Before
LORD JUSTICE RICHARDSLORD JUSTICE LEWISONLORD JUSTICE McCOMBE
Between
The Queen on the applications ofAppellantsEbose Ester ObohAppellantEmad Ali KhalifaAppellantNazakat HussainAppellantDeepak SehdevAppellantDaniel Kwame NyarkoAppellantSecretary 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)
Zane Malik (instructed by Malik Law Chambers, Solicitors) for AppellantsDavid Blundell (instructed by The Government Legal Department) for RespondentHearing Hearing date : 7 May 2015
Judgment
[1]These linked appeals concern the lawfulness of a Home Office guidance document, “Requests for removal decisions”, as it applied prior to its withdrawal on 13 April 2015 (“the guidance”). The context is that overstayers or illegal entrants whose applications for leave to remain had been refused without a right of appeal could request the Secretary of State to make a removal decision which, under the law as it stood at the material time, would generate a right of appeal. The guidance informed immigration officers how to respond to such requests.[2]The first issue in the appeals is whether the guidance was required to be included in the Immigration Rules laid before Parliament pursuant to section 3(2) of the Immigration Act 1971 (“the 1971 Act”), as a statement of “the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter”. The second issue is whether the guidance was unlawful by reason of a lack of certainty or transparency.[3]Miss Oboh’s claim for judicial review of the guidance was dismissed by Burnett J (as he then was), sitting in the Administrative Court. Permission to appeal, limited to grounds corresponding to the two issues to which I have referred, was granted by Christopher Clarke LJ. A renewed application for permission to appeal on additional grounds was dismissed. In the case of each of the other appellants, their application for permission to apply for judicial review was dismissed on the papers by an Upper Tribunal Judge and marked “totally without merit”, but permission to appeal on essentially the same two grounds was granted by Christopher Clarke LJ. The only substantive judgment at first instance is therefore that of Burnett J.[4]Each of the appellants is an overstayer or illegal entrant whose application for leave to remain was refused and who subsequently, through solicitors, sent a pre-action protocol letter requesting, inter alia, the making of a removal decision that would trigger a right of appeal. In each case the request for a removal decision was refused at the time. In the case of Mr Hussain, however, a removal decision was made subsequently, on 16 January 2015. That rendered his appeal academic, but Mr Malik told us that the appeal had not been withdrawn because he wished to deploy the facts of Mr Hussain’s case in his submissions on the second issue. Subject to that, nothing turns on the appellants’ individual circumstances.

The guidance

[5]The version of the guidance in force at the time of the request made by each of the appellants except Mr Nyarko was the version marked “valid from 22 August 2012”. It read in material part as follows: "About this guidance This guidance tells you what to do if you receive a 'letter before claim' or a Pre-Action Protocol (PAP) dated on or after 13 February 2012 from an applicant who has made an application for leave to remain which has been refused with no right of appeal. … This guidance only applies where a person:• has made a valid 'out of time' application for leave to remain which is refused• did not receive a removal decision when the application for leave to remain was refused• failed to leave the UK voluntarily• has requested in a PAP, or letter before action, that a removal decision is made. … Accepting a request for a removal decision This page tells you when to grant a request for a removal decision. The UK Border Agency does not routinely make a removal decision at the same time as refusing leave to remain from an applicant with no current leave. The exceptions are categories of cases where, after a refusal of an out of time application for leave to remain, it would be right, if the applicant later requests it, to agree to make a removal decision. In making this decision to accept a request, you must consider:• the need to promote the welfare of children who are in the UK• any direct cost in supporting the applicant and dependants being met by the UK Border Agency or a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), and• exceptional and compelling circumstances. You can make a removal decision when requested in the following cases:• the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more• the applicant has a dependant child under the age of 18 who is a British citizen• the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or• there are other exceptional and compelling reasons to make a removal decision at this time. A decision to serve a removal decision on the basis of exceptional and compelling reasons must be agreed by a higher executive officer (HEO) senior case worker (SCW) or above. Responding to the Pre-action protocol (PAP) This page tells you how to respond to a PAP or letter before action where a request for a removal decision has been made. You must first review the refused application for leave to remain and any other information submitted and consider if the decision should be maintained. If the original refusal decision was incorrect or made on incorrect grounds, a new decision must be made and either leave granted or a new refusal decision served on the applicant. If you decide that the refusal decision should be maintained, you must consider the information in the refused application for leave to remain and any relevant UK Border Agency databases. You must then decide if the applicant meets the criteria for a removal decision to be made. Criteria Met If one or more of the criteria outlined above are met, you must send the applicant the criteria met letter …. A removal decision must be made and served within 3 months of the date of this response ….. Criteria Not Met Where the criteria outlined above are not met, you must send the applicant the criteria not met letter …."• has made a valid 'out of time' application for leave to remain which is refused• did not receive a removal decision when the application for leave to remain was refused• failed to leave the UK voluntarily• has requested in a PAP, or letter before action, that a removal decision is made. Accepting a request for a removal decision• the need to promote the welfare of children who are in the UK• any direct cost in supporting the applicant and dependants being met by the UK Border Agency or a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), and• exceptional and compelling circumstances.• the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more• the applicant has a dependant child under the age of 18 who is a British citizen• the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or• there are other exceptional and compelling reasons to make a removal decision at this time. Responding to the Pre-action protocol (PAP) Criteria Met

Criteria Not Met

[6]That version was superseded by an amended version, marked “valid from 22 August 2013”, which was in force at the time of the request by Mr Nyarko. The amendments involved the substitution of “Home Office” for “UK Border Agency” and some relatively minor changes in language. For example, under “Accepting a request for a removal decision”, the second paragraph was replaced by the following:
“The Home Office is not required to routinely make a removal decision at the same time as refusing leave to remain from an applicant with no current leave. If a removal decision is not made and served alongside a decision to refuse of [sic] an out of time application for leave to remain, a removal decision will be made if the applicant later requests it and it is appropriate to do so.”
The submissions of counsel concentrated on the earlier version and I do not think that the modifications in the later version have any material effect on the analysis.[7]As Burnett J observed at paras 8-9 of his judgment, the guidance was primarily concerned with the timing of a removal decision and was not concerned with the substance of the removal decision or of any appeal that might in due course be lodged. That the guidance was concerned with timing rather than substance is illustrated by the fact that the letter sent to Miss Oboh in response to her request concluded with these words: "… it is not accepted that there is any requirement to make a removal decision at this stage". (The guidance stated that the first step on receipt of a pre-action protocol letter or a letter before action was to review the refused application for leave to remain and to make a new decision if the original decision was incorrect or made on incorrect grounds. Only if it was decided to maintain the original refusal decision was it necessary to consider in accordance with the guidance whether to make a removal decision as requested; but that is the aspect of the guidance at which the challenge is directed.)[8]I have mentioned that the guidance was withdrawn on 13 April 2015. Mr Blundell explained the context of the withdrawal. The guidance dealt with the position prior to the changes to Part 5 of the Nationality, Immigration and Asylum Act 2002 that were made by the Immigration Act 2014 and were brought fully into force on 6 April 2015. The effect of those changes is that a right of appeal is now granted on the refusal of a human rights or protection claim, or the revocation of protection status, not on the refusal of an application for leave to remain or on a removal decision. However, before a person is removed, the Secretary of State will, as a matter of policy, reconsider any human rights claim that was previously refused without a right of appeal but that would have attracted a right of appeal if it had been made under the law as it applies from 6 April 2015. If the refusal is upheld it will attract a right of appeal, subject to certification. The guidance was republished on 18 May 2015, with amendments to reflect the change in the law, but we have not seen the new document. We are told that in the circumstances in which a removal decision would have been made on request, the Home Office will agree on request to reconsider the refusal decision without payment of a fee. Individuals who do not meet the criteria for a reconsideration on request may make a fresh human rights application on payment of a fee (thus triggering a right of appeal if the application is refused) or will have their refusal decision reconsidered before they are removed. I mention all this in order to indicate that the guidance in its republished form may have a continuing relevance; but we are concerned in these appeals only with the previous versions of the guidance.

The first issue: was there a requirement to lay the guidance before Parliament?

[9]The appellant submits that the guidance was a statement of practice falling within section 3(2) of the 1971 Act and therefore subject to a requirement that it be laid before Parliament as part of the Immigration Rules. That submission requires consideration of the statutory provisions and a small number of authorities.[10]The relevant statutory provisions are contained in Part 1 of the 1971 Act, headed “Regulation of Entry into and Stay in United Kingdom”. Section 1 sets out general principles. Subsection (1) concerns those expressed to have the right of abode in the United Kingdom. Subsections (2) and (4) provide:
“1. General principles … (2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act …. … (4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting … persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”
[11]Section 3 provides: “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, this 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. …(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality) …. (5) A person who is not a British citizen is liable to deportation from the United Kingdom if ….” (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this 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.[12]Section 4 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 …. (2) The provisions of Schedule 2 to this Act shall have effect with respect to – … (c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully ….” … (c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully ….”
[13]Paragraphs 8 to 11 of Schedule 2 concern the removal of persons refused leave to enter and of illegal entrants. Provision for the removal of overstayers (who were given leave to enter or remain but whose leave has expired) is made by section 10 of the Immigration and Asylum Act 1999: the relevant paragraphs of Schedule 2 to the 1971 Act are applied to removal directions given under that section.[14]The provisions to which I have referred draw a distinction between, on the one hand, entry into and stay in the United Kingdom and, on the other hand, departure or removal from the United Kingdom. The 1971 Act regulates all those matters, as section 1(2) envisages. The requirement to lay a statement of rules before Parliament is, however, more limited in scope. By section 3(2), what has to be laid before Parliament is a statement of the rules as to the practice to be followed in the administration of the Act “for regulating the entry into and stay in the United Kingdom” (emphasis added) of persons required to have leave to enter. On the face of it, that does not apply to the practice to be followed for regulating the removal of illegal entrants or overstayers from the United Kingdom. As Burnett J put it:
“15. At first blush, there is nothing in the statutory language of section 1(4) and 3(2) of the 1971 Act which suggests that the obligation to lay rules of practice before Parliament is concerned with the mechanics of, still less the timing of, removal. ‘Stay’ in that context is concerned with a lawful stay in the United Kingdom pursuant to rules of practice applied by the Secretary of State (whatever label may be attached to them). That interpretation is consistent with the language of the 1971 Act itself. Section 1(2) refers to ‘departure from the United Kingdom’, in addition to ‘entry into and stay in’ the United Kingdom. Sections 1(4) and 3(2) do not refer to departure from the United Kingdom (or removal from the United Kingdom). So whilst the 1971 Act is concerned with the mechanics of departure and removal in a variety of circumstances, in particular under paragraphs 8 to 10 of Schedule 2, Parliamentary scrutiny of the policies, instructions or guidance on which the Secretary of State exercises her discretion to remove is not a requirement of section 3(2).”
[15]Mr Malik submitted that it is obvious that when the Secretary of State is seeking to remove illegal entrants and overstayers from the United Kingdom, she is “regulating immigration”. But that submission takes him nowhere, since section 3(2) is not expressed in such general terms but relates specifically to the practice to be followed for “regulating the entry into and stay in the United Kingdom …”. A submission at an even higher level of generality, that section 3(2) “covers anything that really matters”, involves an even greater disregard of the statutory language.[16]Mr Malik submitted that a flaw in Burnett J’s analysis is revealed by the fact that the Immigration Rules laid before Parliament by the Secretary of State pursuant to section 3(2) contain rules relating to deportation and removal. For example, paragraph 353B of the Immigration Rules, relating to the position where fresh claim submissions have been considered or a case is subject to a review, provides that the decision-maker will have regard to specified matters in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate. Paragraph 363A refers to circumstances in which a person is liable to deportation rather than administrative removal. Paragraph 378 provides that, subject to defined exceptions, a deportation order may not be made while it is still open to a person to appeal against the Secretary of State’s decision or while an appeal is pending. Paragraphs 385 and 386 make provision for the removal of a person against whom a deportation order has been made. Paragraph 400 provides that where a person claims that their removal would be contrary to article 8 ECHR, the Secretary of State may require an application under paragraph 276ADE or Appendix FM of the Immigration Rules (which relate respectively to the private life and family life aspects of article 8) or, if an application is not required, the claim will be considered against the requirements to be met under those provisions. By reference to such material, Mr Malik submitted that Burnett J’s construction of the statutory provisions is inconsistent with the terms of the Immigration Rules themselves.[17]Mr Blundell met that line of argument by the submission that the paragraphs in question have a place in the Immigration Rules because of their linkage with the right of entry into or stay in the United Kingdom. Section 5(1) of the 1971 Act provides that a deportation order against a person invalidates any leave to enter or remain given before the order was made, which explains why the regulation of deportation is covered within the Immigration Rules. The inclusion of provisions such as paragraph 353B is explained by the fact that consideration of a case under those provisions will result in a decision to grant or not to grant leave to remain and will therefore have a determinative effect on a person’s status. But the timing of a removal decision has no such linkage with the right of entry into or stay in the United Kingdom. The guidance only applies where an application for leave to remain has already been refused and the person requests that a removal decision is made. Guidance as to whether a removal decision should be made when so requested has no relationship with a person’s status.[18]In broad terms I accept Mr Blundell’s explanation for the inclusion of provisions relating to deportation and removal within the Immigration Rules, and the distinction he draws between such provisions and the guidance here in issue. In so far as the guidance provided for a review of the original refusal decision on receipt of a pre-action protocol letter or a letter before action, with the possibility of a new decision granting leave, there was perhaps a greater degree of linkage with the question of leave than allowed for by Mr Blundell, albeit the guidance had no bearing on the substantive conditions for the grant of leave. But in so far as the guidance related to the question whether to make a removal decision as requested, it applied only where it had been decided to maintain the original refusal decision and it had no linkage with the question of leave.[19]I would add that the fact that provisions relating to deportation and removal have been included within the Immigration Rules could not be a determinative consideration in any event. The question is whether the statute required the guidance to be laid before Parliament as part of the Immigration Rules, and that question cannot strictly be answered by consideration of what the Secretary of State has chosen in practice to include within the Immigration Rules.[20]The conclusion to which I am led by the terms of the statute is strongly supported by the authorities. In R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208, the claimant’s application for leave to remain under paragraph 245ZF of the Immigration Rules had been refused by reference to statements in codes of practice that did not form part of the Immigration Rules. The Supreme Court held that the statements in question set out rules that ought to have been laid before Parliament under section 3(2). The clearest expression of the governing principle is to be found in the judgment of Lord Dyson:
“94. In my view, the solution which best meets these objects is that a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision ‘as to the period for which leave is to be given and the conditions to be attached in different circumstances’ (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined. … 97. If the boundary is drawn where I have suggested, that should introduce a degree of certainty which ought to reduce the scope for legal challenges. The key requirement is that the immigration rules should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain.”
Lord Hope, whilst dealing with the issue at some length in his own judgment, expressly agreed (at para 57) with para 94. Lord Walker (para 109) agreed with Lord Hope and Lord Dyson on the central issue on which they concurred. Lord Clarke (paras 120-121) saw no difference between the formulations in paras 94 and 97 and he agreed with the approach laid down in them. Lord Wilson (para 128) also agreed.[21]Applying that approach, it is clear that the guidance is not required to be laid before Parliament under section 3(2). It does not “set out criteria which are or may be determinative of an application for leave to enter or remain”. It concerns purely procedural matters and contains nothing that has to be satisfied as a condition of the grant of leave to enter or remain.[22]Mr Malik seeks to get round that by focusing on the Supreme Court’s judgment in R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1 WLR 2192, a case which was heard together with Alvi and the judgment in which was handed down on the same day as the judgment in Alvi. The case concerned Deportation Policy 5/96 (“DP5/96”) which defined the criteria to be applied by immigration decision-makers “when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated seven years or more continuous residence”. The challenge was to the withdrawal of DP5/96, on the basis that the withdrawal should have been laid before Parliament under section 3(2). It was submitted that any statement of a concessionary policy which was more favourable to migrants than a rule which made provision for the grant of leave to enter or remain was, by definition, a statement of a change in the rules within the meaning of section 3(2).[23]Lord Dyson, in a judgment with which the other members of the court agreed, stated at para 41 that the case concerned “a policy (such as DP5/96) which identifies the circumstances in which exceptionally leave to enter or remain will or may generally be granted outside the rules”. He referred to provisions of the 1971 Act that authorise the Secretary of State to grant leave to enter or remain even where leave would not be granted under the Immigration Rules. He continued:
“45. The question remains whether DP5/96 was a statement of practice within the meaning of section 3(2). If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is in itself a rule ‘as to the practice to be followed’ within the meaning of section 3(2) which should be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then in my view it does not fall within the scope of section 3(2). Such a statement does no more than say when a rule or statutory provision may be relaxed. I have referred to DP5/96 at para 9 above. It was not a statement of practice within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not have to be laid before Parliament. 46. … [S]ubject to the constraints to which I have referred and any relevant public law principles, the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the United Kingdom. The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement ‘as to the practice to be followed’ within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament.”
[24]Mr Malik submitted that the “sliding scale” test in para 46 of the judgment in Munir should be applied to the guidance in the present case and that on the application of that test the guidance can be seen to be a statement “as to the practice to be followed” within section 3(2): the language of the guidance is mandatory and inflexible, according little discretion to the decision-maker. Mr Malik also pointed to Lord Dyson’s statement at para 29 that “the whole point of section 3(2) is to give Parliament a degree of control over the practice to be followed by the Secretary of State in the administration of the 1971 Act for regulatingimmigration control” (emphasis added). Mr Malik’s suggestion was that “immigration control” is apt to encompass removal from the United Kingdom as well as entry into and stay in the United Kingdom.[25]In my judgment, Mr Malik’s attempted reliance on Munir is unfounded. It is clear that nothing said in Munir was intended to qualify the test laid down in Alvi. Munir was concerned with the circumstances in which the requirements for leave to enter or remain under a rule may be relaxed by a concessionary policy without the policy itself amounting to a statement “as to the practice to be followed” within the meaning of section 3(2). That has nothing to do with the guidance in this case, the material concern of which is the timing of a removal decision and which, unlike DP5/96, has no bearing on the requirements for leave to enter or remain or on the relaxation of those requirements. No significance attaches to Lord Dyson’s reference in para 29 to “regulating immigration control”, which was simply a shorthand for the statutory language of “regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter”. It follows that Mr Malik’s submissions about the inflexibility of the guidance miss the point, as Burnett J said at para 18 of his judgment: they seek to apply to the guidance a test which has no relevance to it. No useful purpose would therefore be served by considering where on the scale the guidance would fall if the Munir test did apply to it.[26]Mr Malik also referred us to R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 (Court of Appeal) and [2008] UKHL 27, [2008] 1 AC 1003 (House of Lords). But the decision in that case adds nothing material. It was taken fully into account by the Supreme Court in Alvi.[27]For all those reasons, I am satisfied that the guidance was not required to be laid before Parliament under section 3(2) of the 1971 Act and that the first ground of challenge to the lawfulness of the guidance must fail.

The second issue: uncertainty and lack of transparency?

[28]The appellants’ second ground is that the guidance lacked the requisite requirements of certainty and transparency. The argument is based on two short statements of principle which are not in dispute. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, Lord Dyson stated:
“34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised.”
[29]In R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin), Blake J stated:
“65. Transparency, clarity, and the avoidance of results that are contrary to common sense or are arbitrary are aspects of the principle of legality to be applied by the courts in judicial review ….”
Blake J went on to say at para 69 that the policy under challenge in that case either irrationally excluded material and potentially decisive considerations or “was so ambiguous as to the expression of its scope as to mislead applicants, entry clearance officers and immigration judges alike as to what was a sufficient reason to substantiate a discretionary claim to settlement here”.[30]The focus of Mr Malik’s submissions is the passage in the guidance that states “You can make a removal decision when requested in the following cases”, the relevant case being that “there are other exceptional and compelling reasons to make a removal decision at this time”. He compares this with the terms of the policy set out in Chapter 53 of the Secretary of State’s Enforcement Instructions and Guidance. That chapter states, under the heading “Extenuating Circumstances”:
“It is the policy of the Agency [the UK Border Agency, as it was] to remove illegal migrants from the United Kingdom unless it would be a breach of the Refugee Convention or ECHR, or there are exceptional circumstances for not doing so in an individual case.”
The chapter then sets out how decision-makers should assess whether there are exceptional circumstances and provides in paragraph 53.1.2 that if, on consideration of the relevant factors, removal is no longer considered appropriate, discretionary leave to remain should be granted. Mr Malik submits that the guidance is irreconcileable with the Enforcement Instructions and Guidance, in that the former provides that the Secretary of State will make a removal decision if there are exceptional reasons, whereas the latter provides that the Secretary of State will not make a removal decision, but will instead grant leave to remain, if there are exceptional circumstances.[31]Burnett J rejected that argument summarily:
“23. There is no confusion at all. The guidance with which this case is concerned is directed towards the timing of a decision to remove. The Enforcement Instructions and Guidance is directed towards the substance of a decision relating to removal.”
I agree with the judge. The inconsistency contended for by Mr Malik does not exist.[32]In so far as Mr Malik advanced a more general submission that the guidance lacked certainty or transparency, I would reject that submission too. It seems to me that the guidance was perfectly clear, both as to factors to be considered and as to the cases in which a removal decision could be made. Mr Malik suggested that it was impossible for an overstayer to know what to aim for when writing to the Secretary of State to identify exceptional circumstances. He sought to illustrate the submission by reference to the facts of Mr Hussain’s case, in which a request for a removal decision was refused on 7 September 2013 but a removal decision was subsequently made on 16 January 2015. He asked rhetorically: if that was done in Mr Hussain’s case, how can other applicants know what the Secretary of State is looking for? The submission is, however, without substance. The circumstances of Mr Hussain’s case take the appellants nowhere, since it is clear that the removal decision in his case was made not in response to the original request but in consequence of significant developments in the intervening period: on 23 April 2014, Mr Hussain was served with form IS.151A informing him of his immigration status and his liability to detention and removal; this prompted further representations on his behalf; a further decision was then made on 16 January 2015, rejecting the further representations; and the making of a removal decision followed on from that further decision. More generally, a test of “other exceptional and compelling reasons” provides a sufficiently certain and transparent basis for the exercise of a discretion whether to make a removal decision when so requested.

Conclusion

[33]For the reasons given, I would dismiss Miss Oboh’s appeal; and as regards the other appellants, I would grant them permission to apply for judicial review but would dismiss their substantive claims for judicial review pursuant to section 16(8) of the Tribunals, Courts and Enforcement Act 2007.

Lord Justice Lewison :

[34]I agree

Lord Justice McCombe :

[35]I also agree.

Cited in 5 later judgments