Acheampong, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2751 (Admin)

[2010] EWHC 2751 (Admin)Case No CO/2648/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2010
Before
MRS JUSTICE RAFFERTY DBE
Between
THE QUEENClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Benjamin Hawkin (instructed by Lawrence Lupin Solicitors) for ClaimantChristopher Staker (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 12 th October 2010
Judgment
[1]The Claimant Miss Portia Abrafi Acheampong (d.o.b. 30.5.1990) brings this judicial review claim seeking a mandatory order requiring the Secretary of State for the Home Department (“SSHD”) to take a decision to remove her from the United Kingdom. The SSHD on 15 September 2009 refused her application for discretionary leave to remain and maintained that decision on 1 December 2009. The Claimant had no leave to remain at the time of making her application and thus has no right of appeal against that decision. She seeks a mandatory order in order to achieve a right of appeal to the First Tier Tribunal.[2]The SSHD contends that the Claimant is required by law to leave the United Kingdom, and that if and when the SSHD exercises her power to remove is a matter for her. She submits there is no authority for the proposition that where an applicant for leave to remain has no right of appeal since she is an overstayer at application, the SSHD is required to make a prompt removal decision in order that s/he gains a right of appeal. Such a proposition it is argued is contrary to the scheme of the immigration legislation.

Factual background

[3]The Claimant was brought up in Ghana by her maternal grandmother who became severely ill in 2000, when the Claimant’s maternal aunt sent the then twelve-year old child to the UK where she joined her mother and new family. Her immigration history and the chronology of this case are as follows. 30 May 1990 The Claimant is born in Ghana. 22 September 2002 The Claimant arrives in the United Kingdom illegally. The Claimant’s case is that she was unilaterally sent to the UK by her aunt, with whom she had previously been living in Ghana, in order to join her mother, who has been living in the UK since 1990. 16 August 2007 Indefinite leave to remain under paragraph 298 of the Immigration Rules is refused but leave is granted until 29 May 2008 when she is 18 years old. 27 May 2008 The Claimant attempts to apply for further discretionary leave to remain relying on Article 8 of the European Convention on Human Rights 3 June 2008 The Claimant’s representatives send four passport photographs to supplement the above 30 January 2009 The application of 27 May 2008 is rejected because it is on the wrong form, which is filled out incorrectly, and is not accompanied by the correct fee or required photographs 27 February 2009 The Claimant applies for further discretionary leave to remain relying on Article 8 of the European Convention on Human Rights 15 September 2009 The SSHD refuses the 27 February 2009 application. The decision states: In reaching this decision the Secretary of State has considered your clients application in the light of Article 8 of the Human Rights Act 1998 [sic] but does not consider that the decision to refuse your client’s application and seek her removal from the United Kingdom would breach those rights. The Secretary of State notes that your client entered the United Kingdom illegally as a minor in 2002 and did not have an application made on her behalf until 18 April 2007. A grant of discretionary leave until her eighteenth birthday on 29 May 2008 resulted from that application. The Secretary of State notes that she is now of an age where she may support herself and adapt to conditions in her home country. The Secretary of State notes that there are no obstacles to your client returning to her home country and exercising her Article 8 rights there or elsewhere. The Secretary of State therefore considers that any breach of your clients right to a family life is proportionate and within the permissible aims of Article 8(20 [sic] and is pursuant to an effective immigration control. The decision notes that there is no right of appeal against this decision as the Claimant did not have leave at the time of making her application. 2 November 2009 The Claimant sends pre-action protocol letters to the SSHD requesting reconsideration of the decision of 15 September 2009 including “you have not given the Applicant a right of appeal” and that the SSHD’s reason for rejecting the Article 8 claim “is cursory, given the totality of evidence that had been submitted in the second application”. 1 December 2009 The SSHD maintains the decision of 15 September 2009. The letter notes that no “immigration decision” for the purposes of s.82 of the 2002 Act attracting a right of appeal has yet been taken; that if removal directions are served there will be an “immigration decision” against which there will be an in-country right of appeal if there is a human rights claim; that the Claimant was now an overstayer and should arrange to depart voluntarily; that it is a matter for immigration officials to decide if and when enforcement action would be taken; and that the SSHD had decided not to exercise discretion in this case. 24 February 2010 The Claimant issues these judicial review proceedings. 10 March 2010 The SSHD’s acknowledgement of service and summary grounds of defence are filed. 22 March 2010 Permission is refused by Blair J on the papers. 28 July 2010 Permission is granted by Stadlen J at a renewal hearing.

The legal framework

[4]The Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) Part 5, titled “Immigration and Asylum Appeals”, sets out the legislative framework regarding immigration appeals. Section 82 where relevant reads as follows:
“(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, ... (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c 33) (removal of person unlawfully in United Kingdom). (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c 77) (control of entry: removal),”
Section 84(1) lists the grounds of appeal and where relevant reads as follows:
“(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds— ... (c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights; ... (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules; (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 section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.”
S92 addresses appeals from a S82 immigration decision while the appellant is in the United Kingdom:
“(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies. ... (4) This section also applies to an appeal against an immigration decision if the appellant— (a) has made an asylum claim, or a human rights claim, while in the United Kingdom, ...”

The Immigration and Asylum Act 1999 (“1999 Act”)

[5]S10 of the 1999 Act reads where relevant:
“(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;”

The Claimant’s developed submissions

[6]Mr Hawkin for the Claimant was candid. Her sole objective is to secure a right of appeal to the First Tier Tribunal (Immigration and Asylum Chamber) (“the Tribunal”) in which regard she seeks the assistance of the court to require the SSHD to make a decision to remove her from the United Kingdom, an immigration decision for the purposes of s.82(2)(g) of the 2002 Act.[7]The Claimant argues that she has a respectable Article 8 claim, that the overall structure of the appeal provisions in the 2002 Act is geared towards enabling respectable immigration, asylum or human rights claims to be argued on appeal, and that in TE (Eritrea) v SSHD [2009] EWCA Civ 174 (“TE”) the judgment of Sedley LJ supports the Claimant’s contention that the SSHD should make a removal decision now.

The SSHD’s developed position

[8]It is both well-established and uncontroversial that a person who makes an out of time application for leave to remain (that is, makes an application after existing leave has expired) does not enjoy a right of appeal against a decision of the SSHD refusing that application. The decision results in the applicant having no leave to remain, since before the decision was taken there was no leave to remain: R (Daley-Murdock) v SSHD [2010] EWHC 1488 (Admin) paras 45-54.[9]The Claimant’s 27 May 2008 application to extend her leave to remain, two days before her existing leave expired, was not valid as it was on the wrong form, mandatory sections of the form were not completed, and it was not accompanied by the correct fee. By the time of her valid application on 27 February 2009, she had been an overstayer for some 8/9 months.[10]It is not in issue that a decision that a person unlawfully in the United Kingdom is to be removed by way of direction under s.10(1)(a), (b) or (c) of the 1999 Act is an appealable immigration decision (s.82(2)(g)). What appears to be in issue is whether it is a matter for the SSHD if and when to take enforcement measures to remove an overstayer. The SSHD’s submissions are that she is not required to exercise that power merely in order to afford a right of appeal to a person who would otherwise not have one. The circumstances in which an individual has a right of appeal, and in which s/he can exercise that right in-country or only out-of-country, are prescribed within the legislation. Where as here the legislation affords no in-country right of appeal, the SSHD does not act unfairly or unlawfully by failing to exercise the power to remove which would generate a right of appeal. The Claimant, an overstayer with no right of appeal, is required to leave the UK now, without awaiting any future enforcement action by the SSHD. S24(1)(b) of the Immigration Act 1971 makes it an offence for her to remain in the United Kingdom without leave. That any enforcement action would bring with it a right of appeal is not intended to operate as an incentive for her to remain here illegally. On the contrary, the legislation is designed to provide an incentive for those here without leave to depart voluntarily, without the need for enforcement.[11]An overstayer who departs voluntarily within 28 days will not be penalised, as a result of having been an overstayer, in any subsequent application for entry clearance to the United Kingdom. Similarly an overstayer who departs voluntarily within one year will bear consequences for 5 years, whilst other overstayers will bear consequences for 10 years. These provisions are designed to reduce the need for enforcement action. The SSHD argues that there are strong reasons of public policy supporting her encouragement for illegal entrants and overstayers to leave the UK voluntarily without the expenditure of time and resources in removals. She contends that the legislation is inconsistent with overstayers’ expectation that enforcement action will be undertaken so that they can enjoy a right of appeal. Where an individual is properly required to leave without enforcement action that is the effect of the legislation, not of any decision by or policy of the SSHD. These recitations I hope do justice to the SSHD’s position.

The relevant caselaw

[12]In TE (Eritrea) v SSHD [2009] EWCA Civ 174 (“TE”) TE had appealed to the Tribunal against a refusal of the SSHD to extend her leave. During appellate proceedings the claimant raised an argument that the SSHD had failed to consider paragraph 395C of the Immigration Rules, the criteria to be applied by the SSHD when taking a removal decision. The issue before the Court of Appeal was whether the Senior Immigration Judge were correct to find that the criteria only fall to be considered in the context of a decision to remove. Were that correct it would not be unlawful for the Secretary of State not to consider them in a variation appeal. Sedley LJ with whom Jacob LJ agreed observed at para 7:
“The distance between the parties is at first sight nevertheless minimal, because the Home Secretary accepts that once the appellant becomes an overstayer she cannot be removed if, on due consideration and if need be on appeal, it is found that removal would be wrong or would violate her Convention rights. But the real difference is considerable, because to remain here as an overstayer is a criminal offence by virtue of s.24(1)(b) of the Immigration Act 1971. An overstayer also loses both the right to work and entitlement to mainstream state benefits, and anyone who employs him or her commits a criminal offence. And by §320(7B) of the Rules entry clearance is to be refused to former overstayers who have not left voluntarily within 28 days.”
[13]After referring to JM (Liberia) v SSHD [2006] EWCA Civ 1402, [2006] INLR 548, and EO (Turkey) v SSHD [2007] UKAIT 00062, Sedley LJ concluded:
“17. All these considerations appear to me to apply with equal cogency in the present case. 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 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 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 the individual. 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 choice of course by the Home Secretary, it cannot properly be random or dictated by simple administrative convenience.”
[14]R (Daley-Murdock) v SSHD [2010] EWHC 1488 (Admin) (“Daley-Murdock”) and Mirza & Ors v SSHD [2010] EWHC 2002 (Admin) (“Mirza”) are pending appeals to the Court of Appeal. Daley-Murdock arrived in the United Kingdom as a visitor with limited leave, overstayed and worked illegally. An application for leave to remain was refused. Since she had no leave at application, the refusal was not an “immigration decision” attracting a right of appeal. The argument was that it was “unreasonable or unfair” of the SSHD not to make an appealable decision to remove at the same time as refusing her application for leave. Wyn Williams J referred to TE and JM and said:
“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.”
Having quoted from paragraphs 17-19 of TE he went on to say:
“59.... 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.”
[15]In Mirza the claimants had unsuccessfully appealed to the Tribunal against the SSHD’s decisions to refuse their applications for further leave to remain as students. As in TE, their contention was that they should not after exhausting their appeal rights have to remain in the country illegally in order to be able to invoke the paragraph 395C of the Immigration Rules. Moses LJ said:
“3.The claimants contend that the Secretary of State has adopted a policy or practice not to issue removal directions at the same time or immediately after refusal to vary leave and that that policy or practice is unlawful. They contend that, as a matter of law, the Secretary of State is required to make a decision as to removal at the same time as refusal to vary leave and thereby permit the claimants to appeal to the first-tier Tribunal (Asylum and Immigration Chamber) (formerly the AIT)), whilst they lawfully remain in the United Kingdom. ”
[16]As none of the claimants had at application for extension asked the SSHD to consider removal, each was “compelled to rely upon the proposition that it is unlawful for the Secretary of State to reach a decision as to variation without, at the same time, considering whether to issue removal directions”. For this argument to succeed they had to show that the SSHD had not merely a power but a duty not to “segregate” those two decisions.[17]Moses LJ went on to say:
“32. This court is bound by the decision in TE. But it is important to identify what TE decides. It decides that there was no legal inhibition against the Home Secretary or the Tribunal acceding to the appellant's wish expressed at the reconsideration stage that a decision as to removal directions should be made while the claimant remained lawfully in this country. In such circumstances the Home Secretary was required to concur with the appellant's desire not to break the law. 33. All the members of the Court however expressly rejected the proposition that the Secretary of State was always required to make decisions as to variation and removal "in tandem”
. Sedley LJ remarked that a comprehensive decision would be the right course to take if "by inviting submissions as to why removal should not follow refusal" such a decision "can be arrived at". That allows of circumstances where no such decision can be reached. Sedley LJ goes no further than saying that:- "It is cogently arguable that there was no good reason for not doing so in her case and that segregating them is unfair to her.” That does not suggest any legal obligation on the part of the Home Secretary. 34. In circumstances where the notification under s.120 has not elicited reliance on any relevant factors under paragraph 395C and where no decision as to removal directions is requested at any stage, it is difficult to see how such a comprehensive decision could be arrived at.”[18]The reference to “no decision as to removal directions is requested at any stage” taken contextually I infer to mean “while the claimant has been lawfully here”.[19]Moses LJ went on to observe that:
“36. ... The discretionary factors under paragraph 395C will only normally arise once a person, without leave to remain, fails to leave voluntarily. ... … 42. A substantial number of those refused leave to remain leave voluntarily. In their cases no question arises under paragraph 395C; the law imposes no requirement to consider paragraph 395C in their case. It is difficult to see how such an obligation could be legally imposed at a stage when no-one knows whether the claimant seeking variation intends to leave voluntarily or not.”
[20]In R (Suphachaikosol) v SSHD [2010] [2010] EWHC 1817 (Admin), Collins J said:
“12. .... I emphasise the point that in [TE] the initial application was by one who was lawfully here and was made at a time when she remained lawfully here. This case is one of many similar cases, some of which are sought to be brought before this court, where an overstayer or one who has entered unlawfully makes an application to try to regularise his or her position and that application is refused but the Secretary of State does not at the same time make a decision to remove. In those circumstances there clearly is no statutory in-country right of appeal. ... 15. There have been a number of cases in which attempts have been made to seek judicial review in situations such as this. The message must go out that those claims are not going to succeed and are not arguable unless there are special circumstances: an example is TE (Eritrea). 16. I had an example to which I referred in argument of a case where a husband and wife were seeking to regularise their individual positions. The husband had worked here openly, albeit he had been here unlawfully. He had paid his taxes and was running a successful business. In his case his application was refused — that is his application to remain here and to regularise his position — without a right of appeal. No removal directions were set. His wife had an independent Article 8 claim in respect of which there was a right of appeal. In those circumstances it clearly would be absurd, on the face of it, not to combine the two because clearly the issues for husband and wife overlapped to a very considerable extent. That is an example of a case where it might well be argued that it was irrational for the Secretary of State not to deal with both in tandem. That is simply an example of the sort of exceptional circumstances that in my view will create a possible right of appeal. 17. TE (Eritrea) is a case in which there were exceptional circumstances because of the error of the original hearing and the fact that the claimant in that case was not an overstayer, had not acted in any way unlawfully and was thus effectively made unlawful and told that she was now to be prosecuted as a result of erroneous action by both the Secretary of State and the tribunal. In those circumstances I would have thought it was manifestly unfair for the Secretary of State not to have given an in-country right of appeal so that the whole matter could be sorted out. 18. I think it is important that it is known that the court will adopt this approach to any claims such as this, however much one sympathises, as I do, with the position of the claimant in the circumstances of this particular case. 19. In those circumstances I must refuse permission. I also direct that this judgment albeit a judgment on a refusal can be published because I think it raises an important point that perhaps needs to be more widely known.”

Conclusion

[21]It will be readily apparent that there exist significant differences between TE and the present case. TE had a right of appeal against the decision, given in the course of appellate proceedings, to refuse to grant leave. There was thus no sensible reason not at the same time to consider the paragraph 395C criteria, and it was more efficient so to do. TE was in the United Kingdom lawfully, her appeal rights not exhausted. Had paragraph 395C not been considered during her appeal, they could only have been considered (in the event her appeal was unsuccessful) by her becoming an overstayer and awaiting enforcement. In contrast the Respondent, as Daley-Murdock, was already an overstayer upon her application, has no right of appeal against the decision to refuse to extend her leave, and is expected to leave the United Kingdom without awaiting enforcement action. To require the SSHD to take a removal decision for the sole purpose of generating a right of appeal would not be to avoid duplication of appellate proceedings, but to give rise to appellate proceedings in circumstances where in the normal course there should be none. Moses LJ in Mirza encapsulated the position in TE when he said “Sedley LJ goes no further than saying that:- "It is cogently arguable that there was no good reason for not doing so in her case and that segregating them is unfair to her.” That does not suggest any legal obligation on the part of the Home Secretary.”[22]It is unnecessary in the present case to consider whether and in what situations there may be “special circumstances” in the sense used by Collins J in Suphachaikosol rendering it unfair for the SSHD not to consider removal at the same time as an application for extension of leave, since nothing has been advanced capable of amounting to such.[23]The Claimant relies on the eight or nine month delay in informing her of the errors in her first application as demonstrating that the SSHD is “unconcerned” at her overstayer status. Mr Hawkin complains that in this JR there has been no evidence to explain the delay, simply possible justifications advanced by Dr Staker for the SSHD, including the queue of applications awaiting decision.[24]Though the time the Claimant waited was to say the least unfortunate, even a reply by return of post would have reached the Claimant after her leave had expired and it follows that her valid application would have been out of time. It would be a surprising construction of the legal framework were the SSHD required to make a removal decision in order to generate a right of appeal on the ground of an attempted application two days before expiry of existing leave and a post-deadline indication that it was invalid. Such would go against the clear intention of the legislation which is that in such circumstances there should be no right of appeal.[25]The arguments advanced by the Claimant include broad generalised assertion as to fairness. Whilst it is difficult to resist sympathy for a young woman whose life as lived to date has been fragmented through no fault of her own, the position is clear: The SSHD has a power to make a removal decision simultaneously with a refusal of leave, but there is no duty upon her so to do. That said, this application must be refused.