Daley-Murdock, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1488 (Admin)

Case No CO/12820/2009[2010] EWHC 1488 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue AT BIRMINGHAM, Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/06/2010
Before
MR JUSTICE WYN WILLIAMS
Between
RClaimantKERRY ANN VERONICA DALEY-MURDOCKClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Ramby de Mello & Mr Tony Muman(instructed by JM Wilson Solicitors) for ClaimantMr Vinesh Mandalia (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 13 May 2010
Judgment
[1]The Claimant is a national of Jamaica. On 15 September 2001 she arrived in the United Kingdom together with her young daughter. Her husband arrived in this country on the following day. On 8 October 2008 the Claimant applied to the Defendant to remain in the United Kingdom on two bases; first, in reliance upon Article 8 of the European Convention on Human Rights; second, in reliance upon the Defendant's policy DP5/96. By a notice of decision dated 21 July 2009 the Defendant refused the Claimant's application. The notice specified that there was no right of appeal against the decision.[2]These proceedings followed. Following the grant of permission to apply for judicial review the Defendant issued a decision letter dated 19 February 2010. That decision letter considered, afresh, whether the Claimant should be granted leave to remain on the basis of policy DP5/96 but concluded that leave should not be granted.[3]In the written skeleton argument presented on behalf of the Claimant two principal grounds of challenge are identified. First, the Claimant asserts that it was unlawful and/or unreasonable not to grant her a right of appeal against the Defendant's decision to refuse leave to remain. Second, the Claimant asserts that the Defendant's decision to refuse leave to remain was unlawful and/or unreasonable and based on an incorrect application of Article 8 of the European Convention on Human Rights and/or the policy DP5/96. In a speaking note provided to the court by Mr de Mello, Counsel for the Claimant, the issues arising for my decision are reformulated as follows. First, is the decision of 19 February 2010 an immigration decision for the purposes of section 82(2)(d) or (g) Nationality, Immigration and Asylum Act 2002 (hereinafter referred to as “the 2002 Act”)? Second, is the decision not to grant a right of appeal irrational or a breach of Article 8 of the European Convention? Third, is the decision not to grant leave to remain a breach of Article 8 or a breach of DP5/96? As it happens during the course of the oral argument each of the propositions advanced in writing were reformulated to some extent. In the section of this judgment headed “Discussion” I will deal with each issue raised by the Claimant as it appeared to be in its final form.

Factual History

[4]Upon her arrival in the United Kingdom on 15 September 2001 the Claimant and her daughter were granted leave to enter as visitors until 14 October 2001. On 16 September 2001 the Claimant's husband arrived separately and he, too, was granted leave to enter until 14 October 2001. In due course all three were granted leave to remain in the United Kingdom as visitors until 30 July 2002.[5]The Claimant and her family did not leave the United Kingdom on or before 20 July 2002. She and her family became “overstayers”.[6]On 5 July 2003 the Claimant gave birth to her second child, a son. No steps were taken until 2008 to obtain leave for him to remain within the UK.[7]According to a witness statement made by the Claimant and dated 5 May 2010, the Claimant has been working for substantial periods since her arrival in the United Kingdom. She says that she began work in early 2002 and the impression to be gained from paragraph 8 of her witness statement is that she has worked more or less continuously from that time until some time in 2008. In that same period her husband has also been working.[8]Both the Claimant's children are at school. Presumably, they began school on their third birthday or as soon thereafter as they could be placed.[9]As I have said the Claimant applied to remain in the United Kingdom on 8 October 2008. She completed a pro forma application form and supplied documentation in support. The documentation provided to the Defendant included documentation which revealed that the Claimant had been working in the United Kingdom. In the application form the Claimant described her husband and two children as her dependants.[10]On 21 July 2009 the Defendant issued four separate decision notices in relation to the Claimant, her husband and the two children. For all practical purposes each notice was in identical form and, accordingly, it is sufficient to describe and quote from the notice issued to the Claimant. The notice is entitled “Notice of Decision” and immediately following those words the following appears “REFUSAL TO GRANT LEAVE TO REMAIN Paragraph 322(1) of HC395 (As amended) To Kerry Ann Veronica Daley-Murdock Jamaica 28 May 1980 You applied for leave to remain in the United Kingdom, but your application has been refused. The Secretary of State has refused your application because you are applying for leave to remain for a purpose which is not covered by the immigration rules. You made an application on 8 October 2008. However, your leave to remain expired on 30 July 2002. You therefore did not have leave to remain at the time of your application. There is no right of appeal against this decision. You have no right to stay in the United Kingdom so are liable to be removed. You must leave as soon as possible. If you do not leave voluntarily, you may be prosecuted for an offence under the Immigration Act 1971, the penalty for which is a fine of up to £2500 and/or to 6 months’ imprisonment and you will also be liable to be removed from the United Kingdom to Jamaica. Your documents have been forwarded to your Regional Case Ownership Unit/Local Enforcement Office. You must now contact them….. by 31 July 2009 at the latest to discuss your departure from the United Kingdom prior to your making any firm travel arrangements. Help and advice on returning home can be obtained from the Immigration Inquiry Bureau…...” Paragraph 322(1) of HC395 (As amended) To Kerry Ann Veronica Daley-Murdock Jamaica 28 May 1980 Help and advice on returning home can be obtained from the Immigration Inquiry Bureau…...”

To Kerry Ann Veronica Daley-Murdock Jamaica 28 May 1980

[11]The decision notice issued by the Defendant was accompanied by a letter (also dated 21 July 2009) which explained the reasoning which led to the decision. I deal with the contents of this letter later in this judgment.

Policy DP5/96

[12]This policy is no longer in force. However, it was in force at the time when the Claimant made her application for leave to remain in October 2008. The history, scope and application of this policy was subject to detailed analysis in the judgment of the Court of Appeal (delivered by Rix LJ) in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906.[13]The policy is engaged when the Secretary of State is considering an application for leave to remain in this country by a parent who has no leave to remain but whose children have resided here for more than 7 years. In such circumstances the Secretary of State should start from the position that it is only in exceptional cases that indefinite leave to remain will not be given but then go on to consider the extent to which any of or a balancing of all the factors mentioned in the policy statement makes the case an exceptional one (see paragraph 39 of the judgment in NF (Ghana).[14]The factors mentioned within the policy statement which are those to be considered when deciding whether a case is exceptional are conveniently set out in paragraph 29 of the judgment in NF (Ghana). For ease of reference I repeat them here:- “Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of a child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. in all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed:• the length of the parents’ residence without leave: whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;• the age of the children;• whether the children were conceived at a time when either of the parents had leave to remain;• whether return to the parents’ country of origin would cause extreme hardship to the children or put their health seriously at risk;• whether either of the parents has a history of criminal behaviour or deception. It is important that full reasons are given making clear that each case is considered on its individual merits.”• the length of the parents’ residence without leave: whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;• the age of the children;• whether the children were conceived at a time when either of the parents had leave to remain;• whether return to the parents’ country of origin would cause extreme hardship to the children or put their health seriously at risk;• whether either of the parents has a history of criminal behaviour or deception.

Discussion

[15]The first issue which arises for consideration is whether or not the Defendant acted lawfully when it refused the Claimant's application for leave to remain in its decision dated 21 July 2009. As I have said the decision notices served upon the Claimant and her family were accompanied by a letter which justified the decision.[16]The decision letter provides reasons why the Defendant took the view that the removal of the Claimant from the United Kingdom would not breach either her rights or those of her family under Article 8 ECHR. It also provides reasons why the Defendant considered that the Claimant and her family should not benefit from policy DP5/96. I deal, first, with the letter as it relates to the policy.[17]The critical paragraph in the letter is as follows:
“The policy document sets out the criteria to be applied when the Secretary of State is considering whether to enforce the removal of parents who have children who have lived in the UK for 7 years or more. There is a general presumption where there are dependent children who have been in the UK for a continuous period of 7 years or more, the UK Borders Agency will not enforce removal of a parent(s). However, the individual circumstances of each case will be considered, and in particular, consideration would be given as to whether the facts of the case are such that, on balance, the presumption should not apply. There will be circumstances in which it is considered that removal action is still appropriate despite the lengthy residence of a child.”
[18]Mr Mandalia, on behalf of the Defendant, accepts that this passage does not accurately reflect the exposition of the policy contained in the judgment of Rix LJ in NF (Ghana) which is to the effect that it is only in exceptional cases that indefinite leave to remain will not be granted when the children of overstaying parents have resided continuously in this country for more than 7 years. Mr Mandalia acknowledges that the letter of 21 July 2009 proceeds on an erroneous basis; in effect, he accepts that the Defendant's decision as it relates to DP5/96 was unlawful.[19]Mr Mandalia submits, however, that the unlawfulness of the decision of 21 July 2009 so far as it relates to policy DP5/96 was “cured” by the Defendant's decision of 19 February 2010. It is to this decision which I turn next.[20]There can be no doubt that this decision correctly identifies the true ambit of policy DP5/96. Paragraph 39 of the judgment of Rix LJ in NF (Ghana) is quoted in full. Further the decision letter sets out, in terms, that in exceptional cases only will indefinite leave to remain in the United Kingdom be refused to the parents of children who have been in the United Kingdom for a continuous period of 7 years or more. Having set out, correctly, the ambit of policy DP5/96 the decision letter then considers whether exceptional circumstances exist in this case which justify refusal of leave to remain. The following conclusions are reached. First, the Claimant made no attempt to regularise her immigration status between July 2002 and 9 October 2008. Second, the Claimant chose to make her application for leave to remain many years after her entitlement to remain in the United Kingdom had lapsed and at a time after her eldest child had accumulated 7 years’ continuous residence in the United Kingdom. Such delay on the Claimant's part was a deliberate attempt to prevent proper consideration of her right to remain in the UK. Third, the Claimant and her family frustrated potential removal action by failing to make any contact with the UK Border Agency until the eldest child completed 7 years’ residence. Fourth, documents submitted by the Claimant demonstrated that both the Claimant and her husband had worked in the United Kingdom illegally. Accordingly it was likely that they had used false documents or deception to obtain employment. Fifth, the Claimant had deprived persons entitled to work of an opportunity to be employed. Sixth, removal of the children together with their parents would not cause them extreme hardship or put their health seriously at risk.[21]On the basis of those factors, taken together, the Defendant concluded that exceptional circumstances existed which justified the removal of the Claimant and her family.[22]As I have said the decision letter of 19 February 2010 correctly identifies the scope of policy DP5/96 and sets out to apply that policy to the circumstances which arise in this case. My task is to investigate the lawfulness of the Defendant’s decision. In the circumstances of this case I would be justified in categorising the decision made in relation to the policy as unlawful only if the Defendant's assessment is unreasonable or irrational. I am not conducting a merits based appeal.[23]I accept, entirely, that the Defendant was entitled to reach the conclusion that the removal of the Claimant and her family to Jamaica would not cause extreme hardship for the children or put their health seriously at risk; further the Defendant was correct to conclude that many years elapsed after the Claimant's leave to remain had lapsed before she made their application for leave to remain. I am somewhat sceptical about the Defendant's view that the timing was deliberate in the sense that the Claimant deliberately decided not to apply for leave to remain during the period July 2002 to October 2008 in the hope that one day she could take advantage of policy DP5/96. I am also sceptical about whether it was proper to conclude that the Claimant had frustrated potential removal action by failing to make contact with the Border Agency during that period given that for the whole of the period in question she was living at addresses in the West Midlands and working in local businesses for much of the time.[24]Even if my scepticism is unwarranted, however, these factors taken together hardly amount to exceptional circumstances. In my judgment, they are circumstances typically encountered in cases of this type.[25]During the hearing, the focus of the oral submissions upon policy DP5/96 was upon whether the Defendant had been entitled to conclude not just that the Claimant and her husband had been working illegally (about which there was no dispute) but that they had probably engaged in deception in order to obtain such employment.[26]Having considered this matter with some care I am satisfied that the Defendant was entitled to conclude that the Claimant and her husband must have engaged in deception at least to some extent . It is clear from the documentation presented to the court that both the Claimant and her husband obtained a national insurance number. There was evidence before the Defendant which demonstrated, clearly, that the Claimant's husband obtained his national insurance number before the expiry of his leave to remain on 30 July 2002. Yet it was a condition of his leave to remain until that date that he did not engage in work. Although there is no evidence about when the Claimant obtained her national insurance number there is no dispute that she did. Neither the Claimant nor her husband was entitled to obtain a national insurance number, as it seems to me, since there has been no time since they arrived in this country when they were entitled, lawfully, to work. Yet by applying for a national insurance number they were at the very least impliedly representing that they were entitled to work. In short, it seems to me that they must have obtained a national insurance number by deception. Further, in each job application made by the Claimant and her husband there was probably an implied assertion of an entitlement to work. To that extent, the Claimant and her husband used deception to obtain employment.[27]I am satisfied that the justified finding of deception on the part of the Claimant and her husband when taken in conjunction with the other features relied upon by the Defendant made it permissible for the Defendant to conclude that exceptional circumstances existed which justified a conclusion that the Claimant and her family should not benefit from policy DP5/96. I stress that my decision relates to the lawfulness of that decision. I should not be taken to be determining whether or not the Defendant's decision would be upheld on a merits based appeal.[28]Did the Defendant act lawfully in determining that the Claimant's rights (and those of her family) under Article 8 ECHR would not be infringed if the family was removed? Again, I stress that I am enquiring into the lawfulness of the Defendant’s decision. I am not conducting an appeal.[29]The Defendant dealt with this issue very shortly in the letter of 21 July 2009. The relevant paragraphs are in the following terms:- “Your clients are a family unit and have an existing family life in the UK together. However, they would be removed from the UK as a family unit and so will be able to continue their family life in Jamaica. It is therefore considered that your client’s removal from the UK will not breach their right to a family life under Article 8. Any perceived interference to your client’s private lives caused by their removal from the UK would be proportionate to the legitimate aim of maintaining an effective immigration control. Although Nirique and Nirian Jnr [the children] may experience slight disruption to their education if they were to be removed to Jamaica, it is an English-speaking country and so they should have no trouble adjusting to the education system there. Secondary school education facilities are freely available in Jamaica and university education is also available. The Country of Origin Information Report for Jamaica, 2008, states that “more than 70% of children between the ages of 12 and 16 had access to secondary school, and the UN Children’s Fund reported that most children completed secondary education.” It is therefore not accepted that removal will have an adverse effect on the children’s education. Furthermore, the family have never had leave to enter or remain in any category which leads to settlement, remaining here illegally for the last 7 years. They should not, therefore, expect to be allowed to live permanently in the UK. The Secretary of State is satisfied that it is reasonable for your clients to return to Jamaica and re-establish their lives there.”[30]Later in the decision letter the Defendant observed that it is likely that the children had been exposed “to a Jamaican sub-culture within the UK and are not entirely ignorant of their cultural background” and that aged respectively 8 and 5 they were both still young enough to adapt to live in Jamaica.[31]In the written skeleton argument presented on behalf of the Claimant a number of points are taken. First, that the Defendant’s decision failed to consider the criteria in paragraph 395C HC 395. Second, the best interests of the children were not considered – particularly the fact that the children were well settled in school and had fully integrated into British life. Third, the Defendant did not consider its positive duty under section 55 Borders, Citizenship & Immigration Act 2009. Fourth, no proper regard was paid to the fact that the Claimant and her family had no savings, would struggle to re-establish their lives in Jamaica and had no property or home or friends or relatives to whom to turn upon return to Jamaica. Fifth, the skeleton relies on the observations of Keene LJ in CL Vietnam [2008] EWCA Civ 1551. “In the case of a child applicant, it would seem to be difficult for a decision-maker to carry out a proper assessment of the effect of removal on the child’s right to private life without considering the circumstances which would await that child upon removal. Those circumstances must surely include in most cases the adequacy of reception and care arrangements for the child in the receiving country.” It is true, of course, that these remarks were made in the context of removing a teenager with no other family support. In this case the Claimant's children would be removed with the Claimant and their father. However, the letter of 21 July 2009 does not explore the circumstances in which the Claimant and her children would live if removed to Jamaica.[32]I am by no means persuaded that all the points made in the Claimant's skeleton and summarised above have validity. First, I do not accept that the Defendant was obliged to consider the criteria in paragraph 395C HC 395. The mandatory duty upon the Defendant to take account of those factors arises “before a decision to remove under section 10 is given”. As will become apparent later in this judgment no such decision has yet been given in this case. Second, I am not persuaded that no consideration was given to the Defendant’s duty under section 55 Borders, Citizenship and Immigration Act 2009. However, I am persuaded that the Defendant's assessment of the Claimant’s children’s educational needs, their links to Jamaica, the likely impact of their removal to that country and the ease or difficulty, as the case may be, of family relocation within that country was flawed to the extent that the Defendant's decision in relation to Article 8 is unreasonable or irrational. I am fortified in that conclusion by the Defendant’s reliance upon the likelihood of the children’s exposure to “a Jamaican sub-culture” in this country. I am not at all sure what that phrase is intended to convey. Whatever it means, however, there is no evidence of any kind that it is a justified conclusion. No explanation for this conclusion is contained within the letter of 21 July 2009 and the Defendant has adduced no other evidence to explain the conclusion.[33]It is noteworthy that the skeleton argument presented on behalf of the Defendant does not deal with the claim that the Defendant's decision in relation to Article 8 was unlawful. Mr Mandalia's oral submissions focused, almost exclusively, upon policy DP5/96. Indeed, at some stages, he seemed to be suggesting that the lawfulness of the Defendant's approach to DP5/96 was to be equated with the lawfulness of the approach in relation to Article 8. In my judgment, the two are quite distinct.[34]I have reached the conclusion that the Defendant’s decision as it related to the Claimant’s Article 8 claim was unlawful. I stress that does not mean that I have concluded that the claim under Article 8 should necessarily succeed. Whether such a claim should succeed must be determined first by a lawful decision by the Defendant and if necessary thereafter upon appeal at the appropriate time.[35]As a matter of law, is there a right of appeal to the appropriate Tribunal against the Defendant's decisions contained within the decision notices of 21 July 2009 and the letter of 19 February 2010?[36]By virtue of section 82(1) of the Nationality, Immigration & Asylum Act 2002 a person has a right of appeal when he is made the subject of an immigration decision. For the purposes of Part 5 of the 2002 Act (sections 81 to 117) immigration decision is defined by section 82(2). Eleven types of decision are specified in section 82(2). The two which are relevant for present purposes are:- “(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, (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration & Asylum Act 1999 (removal of person unlawfully in the United Kingdom)”[37]It is common ground, as I understand it, that a decision made by the Defendant must fall within one of the eleven specified types of decision in section 82(2) of the 2002 Act to constitute an “immigration decision” and thereby attract a right of appeal.[38]Section 84 of the 2002 Act specifies the grounds upon which an appeal may be brought against an immigration decision. The grounds which are relevant to the present proceedings are:- “(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the Appellant’s Convention rights; (e) that the decision is otherwise not in accordance with the law; (g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under sections 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention Rights”.[39]Section 92 specifies the circumstances in which a person may appeal while he is within the United Kingdom. Put shortly, he may appeal within the United Kingdom against an immigration decision falling within section 82(2)(d) of the 2002 Act or against an immigration decision if the person has made an asylum or human rights claim while in the United Kingdom. For the purposes of Part 5 of the 2002 Act a “human rights claim” means a claim made by a person to the Defendant that to remove him from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with his Convention rights.[40]Section 82(2)(g) of the 2002 Act makes reference to section 10(1)(a), (b) and (c) of the Immigration and Asylum Act 1999. That section provides:- “10(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(b) he uses deception in seeking (whether successfully or not), leave to remain;(c) directions have been given for the removal, under this section, or a person to whose family he belongs.”[41]As I understand it, Mr de Mello’s final position was that the decision notices issued by the Defendant on 21 July 2009 and the decision letter dated 19 February 2010 constituted immigration decisions within both sub-paragraphs (d) and (g) of section 82(2) of the 2002 Act. He submits that the decision notices and the letter constitute a refusal to vary the Claimant's leave to remain in the United Kingdom and the result of the refusal is that she has no leave to remain. The same argument applies to the notices served upon the other family members. Further, he submits the decision notices and/or the letter of 19 February 2010 constitute a decision that the Claimant and her family are to be removed from the United Kingdom by way of directions under section 10 of the 1999 Act.[42]I deal first with the proposition that the relevant notices and decision letter constitute an immigration decision under sub-paragraph (g). In my judgment, that submission is not well-founded. The letter of 19 February 2010 does no more and no less than convey the Defendant’s decision to refuse to grant the Claimant and her family indefinite leave to remain in the United Kingdom on the basis of policy DP5/96. The letter is completely silent about removal and, in my judgment, there can be no basis for implying that the letter constitutes a decision that the Claimant and her family are to be removed.[43]I am also firmly of the view that the decision notices of 21 July 2009 do not constitute a decision to the effect that the Claimant and her family are to be removed from the United Kingdom. It is true that the notices contain the information that the Claimant and her family are liable to be removed; further they contain an exhortation that the Claimant and her family should leave voluntarily as soon as possible. It is simply not possible, however, to read the notices as constituting a decision that they will be removed.[44]I turn to the submission that the decision notices and letter are immigration decisions within section 82(2)(d).[45]As a matter of fact the Claimant, her husband the eldest child were granted limited leave to enter when they arrived in the United Kingdom. As I have pointed out that limited leave was subsequently varied so as to permit them to remain in the United Kingdom until 30 July 2002. I am satisfied that no application to vary that leave was made prior to 30 July 2002. The first time that the Claimants applied for leave to remain in the United Kingdom after 30 July 2002 was in October 2008.[46]There can be no doubt that the decision notices and letter of 19 February 2010 constitute a refusal to grant the Claimant and her family the right to remain in the United Kingdom. Can they be interpreted as a refusal to vary the leave which the Claimant, her husband and eldest child once enjoyed but which has long since lapsed.[47]A starting point, at least, in finding an answer to this question is the decision of the House of Lords in Suthendran v Immigration Appeal Tribunal [1977] A.C. 359. In that case the Appellant was given leave under section 3(1)(b) of the Immigration Act 1971 to enter and remain in the United Kingdom for a period of 12 months. The leave was given on July 23 1973. On May 20 in 1975 he applied for his leave to be varied by way of extension under section 3(3)(a) of the Act. On June 17 1975 the Secretary of State for the Home Department refused the application; in consequence, the Appellant appealed against the decision relying upon section 14(1) of the 1971 Act.[48]Section 14(1) was in the following terms:
“Subject to the provision of this part of the Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against variation of the leave (whether as regards duration or conditions), or against any refusal to vary it;”
The issue which troubled the courts all the way to the House of Lords was whether or not the Appellant had a right of appeal to the adjudicator under section 14.[49]The majority of their Lordships held that section 14(1) was not to be read as giving a right of appeal to a person whose limited leave to remain in the United Kingdom had expired at the time of applying for a variation. The view of the majority is encapsulated in the following extract from the speech of Lord Russell of Killowen:- “In my opinion this provision is not applicable to a limited leave which has expired and no longer has any operation: the Secretary of State has no powers in relation to such a former limited leave. He has in such a case a power to give de novo a leave to remain, and in the case of an application to vary an expired limited leave by extension he will no doubt treat the application as an application for the grant of leave to remain: but I observe that there is no right of appeal from a refusal to grant such a leave to remain….”[50]The majority view as to the meaning to be attributed to section 14 was heavily influenced by the phrase “a person who has a limited leave” (my underlining). They were not prepared to read that phraseology as including persons who had previously had leave to remain.[51]As is obvious, the words of section 82(2)(d) of the 2002 Act are not identical to the words considered in Suthendran. In my judgment, however, if anything, they more clearly convey that the refusal must relate to an application for variation which was made at a time when leave to remain was still extant. The phraseology “if the result of the refusal is that the person has no leave….. to remain” clearly conveys the notion that it is the refusal which brings the leave to remain to an end. In the instant case, of course, it was not the refusal which brought the Claimant's leave to an end but, rather, the fact that leave had expired on 30 July 2002.[52]I have reached the clear conclusion that the Claimant has no right of appeal against the decision notices of 21 July 2009 or the decision letter of 19 February 2010 by virtue of section 82(2)(d) and/or (g) of the 2002 Act.[53]Mr de Mello recognises the difficulties posed by the decision in Suthendran and the plain meaning to be attributed to the words of section 82 of the 2002 Act. He therefore submits that the fact that no right of appeal exists against the decisions made by the Defendant constitutes a breach of Article 8 of the Claimant's rights under the ECHR. If that is accepted, submits Mr de Mello, section 82 of the 2002 Act should be interpreted so as to confer such a right. For this latter proposition Mr de Mello prays in aid section 3 of the Human Rights Act 1988 and such authoritative decisions as Ghaidan v Godin-Mendoza [2004] UKHL 30.[54]I simply do not see how the failure to confer a right of appeal against the decisions so far taken can amount to a breach of the Claimant's Article 8 rights. As is clear from the statute, a right of appeal arises against a decision to refuse to vary the terms upon which leave to remain in the United Kingdom is granted. If an application for variation is made while the applicant is within the UK lawfully a right of appeal arises if the application is refused. Further, a right of appeal arises once the Defendant has made a decision to remove a person from the United Kingdom. The grounds upon which such appeals can be made are as set out in section 84. In those circumstances I cannot see how a person’s rights under Article 8 are infringed if, having failed to make an application for variation of leave, timeously, thereby causing the Defendant to make an immigration decision which can be the subject of an appeal he then has to wait for the Defendant to make a decision about removal before exercising a right of appeal. Section 92 of the 2002 Act reinforces that view. That section provides for a right of appeal in-country if the Defendant refuses an application for variation in the terms of a person’s leave to remain which is made at the appropriate time. Further the section provides for an in-country right of appeal against a decision to remove a person if the person has made a human rights claim while within the United Kingdom.[55]Since there is no breach of Article 8 there can be no basis, in my judgment, for an interpretation of the 2002 Act which has as its aim the elimination of such breaches.[56]The final point taken by the Claimant is that it was unreasonable or unfair of the Defendant to fail to make an appealable immigration decision at the same time as the decisions of 21 July 2009 and/or 19 February 2010. The impetus for this argument comes from the decisions of the Court of Appeal in JM v Secretary of State for the Home Department [2006] EWCA Civ 1402 and TE (Eritrea) v Secretary of State for the Home Department [2009] EWCA Civ 174.[57]It is to be noted that in both those cases the Defendant had made an immigration decision pursuant to section 82(2)(d) of the 2002 Act but had made no decision relating to removal. That is the context for the views expressed by Laws LJ in JM and Sedley LJ in TE.[58]Both decisions recognise that it is permissible for the Defendant to make a decision under section 82(2)(d) and a decision relating to removal at the same time. Both decisions recognise that there may be many cases where such an approach is wholly justified. In neither case, however, is it suggested that it would always be unfair or irrational if the Defendant took those decisions sequentially. The position is summed up in the following paragraphs from the judgment of Sedley LJ in TE. “17… If there is nothing to stop variation and removal being considered together – and it is accepted that in the present case there is nothing – then the practical utility of deciding them in immediate sequence and letting the AIT be seized of the issues compendiously on appeal is now recognised by the change in the Home Secretary’s statutory powers. The main argument that Mr Kovats [Counsel for the Defendant] has been able to deploy against it is that it will not necessarily condense or curtail appeals because by the time an appeal against a compendious decision on leave and removal has been concluded, new grounds for opposing removal may have arisen, requiring a fresh decision. 18. This seems to me to be both a counsel of despair and a somewhat eccentric approach to public policy. The State, has, or ought to have, an interest in not multiplying administrative proceedings and appeals, especially where the facts and issues overlap and where segregating them creates uncovenanted difficulties for individuals. If, by inviting submissions as to why removal should not follow if the application for variation of leave is refused, a comprehensive decision can be arrived at and if necessary appealed, there can be few cases in which this would not be the right course to take. The possibility of new grounds for non-removal arising is an ever present one which a two-stage approach cannot eliminate. 19 But to say this is not to say that the Home Secretary could never fairly or rationally take variation and removal in separate stages. I simply do not know. There may be cases in which it is both practical and fair to segregate them. What can be said is that the present Appellant's desire not to find herself breaking the law in order to resist removal is an entirely reasonable one in which the Home Secretary, for reasons both of practice and of public policy, ought to concur. Whatever else may determine the course by the Home Secretary, it cannot properly be random or dictated simply by administrative communion.”[59]To repeat these remarks were made in the context that the Defendant had made a decision refusing leave to remain in relation to an application made at a time when the applicant was lawfully within the United Kingdom. Sedley LJ was obviously concerned to point out the unsatisfactory state of affairs which may exist if a person lawfully within the United Kingdom until a variation application has been refused has to make a choice about appealing that immigration decision or waiting to appeal the decision about removal thereby becoming an illegal overstayer.[60]That is not the situation in the present case. In this case the Claimant has remained, unlawfully, in the United Kingdom since July 30 2002. For much of that time she has behaved illegally in that she has worked when she had no right to do so. I see no unfairness or irrationality on the part of the Defendant in encouraging the Claimant to leave voluntarily at the stage when he refused her application for leave to remain. That is especially so when the welfare of young children was and is an important consideration. The Defendant notified the Claimant that she was liable to be removed; he also notified her that her case was being referred to her Local Enforcement Office. But for the intervention of these proceedings the Claimant should reasonably have envisaged that a decision about removal would have been made in her case within a reasonable time. At that stage her right of appeal would have crystallised.[61]I am unpersuaded that the Defendant’s failure to make a decision about removal at the same time as the decision was made to refuse the Claimant's application for indefinite leave to remain was unfair or irrational. I should record that Mr. Mandalia’s skeleton argument deals with this point at some length and on a wider basis than I consider it necessary to discuss. That is because on the facts of this case this rationality/fairness challenge has little merit.[62]It follows from the foregoing that much of this claim falls to be dismissed. There has been one aspect of the claim upon which the Claimant has succeeded (see paragraph 34 above). I propose to determine what relief, if any, is appropriate having heard short submissions upon the point following the handing down of this judgment unless, of course, the parties are able to agree what the appropriate order should be consequent upon this judgment. In the event of such agreement there need be no attendance at the handing down.

Cited in 8 later judgments