1st Jun 2012
The appellants (P) appealed against a decision upholding the refusal of the respondent secretary of state to grant them further leave to remain.
P argued that the secretary of state's decision to refuse their application for further leave to remain was unlawful because it had been taken in isolation from any decision to issue a direction to remove them from the United Kingdom.
It was difficult to reconcile the conclusions in Lamichhane v Secretary of State for the Home Department  EWCA Civ 260, Times, May 30, 2012 and the observations in AS (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1076,  1 W.L.R. 385, which indicated that there was no obligation to issue a removal notice if variation of leave was refused, with R. (on the application of Mirza) v Secretary of State for the Home Department  EWCA Civ 159,  Imm. A.R. 484 and Sapkota v Secretary of State for the Home Department  EWCA Civ 1320,  Imm. A.R. 254, which indicated that removal decisions should follow promptly after variation of leave to remain was refused. Although the Nationality, Immigration and Asylum Act 2002 leant in favour of one-stop appeals, the issue of how far the Act leant in favour of such appeals turned on the structure and language of the legislation. The language of s.120(2), particularly the word "may", appeared to confer an unfettered discretion on the secretary of state whether to serve a one-stop notice, and the Immigration, Asylum and Nationality Act 2006 s.47(1) appeared to permit, but not require, a decision to be made about a removal direction while an appeal could be brought. The secretary of state had to observe public law and human rights norms in the exercise of her s.120 and s.47 powers; that could mean that, in many cases, she should refuse the extension application and decide whether to make the removal direction at the same time or make the latter decision soon after refusing the extension application. Although the former course had the advantage of a single compendious decision, there was much to be said for the latter course; that undermined P's contention that s.47 was effectively mandatory. Further, if the secretary of state failed to decide whether to make a removal direction at the same time or shortly after refusing an extension application, that could not invalidate an otherwise unexceptionable decision to refuse the extension application. It was intellectually unattractive and administratively inconvenient for an executive decision to be potentially retrospectively invalidated. The court in Mirza had been over-impressed with the argument that the secretary of state should deal promptly with the question of removal directions on the basis that a person whose leave to remain had expired would commit a criminal offence by remaining in the UK; where a person made an extension application after leave to remain had expired, such a person committed a criminal offence notwithstanding the application. Accordingly, the appeal would be refused on the ground that even if the secretary of state should have issued a removal direction promptly, her failure to do so would not have invalidated her decision to refuse P's extension application. The court was not bound by precedent to find otherwise. Lamichhane was irreconcilable with Mirza and Sapkota. On the basis of Young v Bristol Aeroplane Co Ltd  K.B. 718, the court followed Lamichhane rather than Mirza, Young followed. There was also a strong argument for following Lamichhane as the later decision, Minister of Pensions v Higham  2 K.B. 153 applied. Further, Mirza seemed to be inconsistent with clear views unequivocally expressed in the earlier decision of AS (Afghanistan). Moreover, the secretary of state was inconvenienced by the procedure imposed on her by Mirza, no upheaval would be caused to the UK Border Agency if Mirza was not followed, and there would be no significant prejudice to unsuccessful applicants for extension if the decision to remove them was delayed, Lamichhane applied, Mirza and Sapkota not followed and AS (Afghanistan) considered (see paras 42-61 of judgment).
Faced with the irreconcilable Court of Appeal authorities of Lamichhane v Secretary of State for the Home Department  EWCA Civ 260, Times, May 30, 2012 on one hand and R. (on the application of Mirza) v Secretary of State for the Home Department  EWCA Civ 159,  Imm. A.R. 484 and Sapkota v Secretary of State for the Home Department  EWCA Civ 1320,  Imm. A.R. 254 on the other, the Court of Appeal preferred the conclusion in Lamichhane that the secretary of state was not obliged to issue a removal notice at the same time or shortly after refusing variation of leave to remain.