In Patel v Secretary of State  EWCA Civ 741 the Court of Appeal (Lord Neuberger MR, Hallett LJ and Stanley Burnton LJ) has declined to follow the earlier decisions of the Court of Appeal in Mirza v Secretary of State  EWCA Civ 159 and Sapkota v Secretary of State  EWCA Civ 1320.
Mirza, a decision of Sedley LJ, had held that the Home Secretary owes a public law duty to use her powers of compulsory removal against foreign nationals who make unsuccessful applications for further leave to remain in the United Kingdom, the rationale being that the use of such powers generates a right of appeal to Immigration and Asylum Chamber, which the foreign national would not otherwise enjoy, at which all factors in support of remaining in the country can be raised. Sapkota had held that a failure by a decision-maker to contemplate using such powers when refusing an application for further leave to remain rendered the refusal of further leave itself unlawful and so capable of being reversed on appeal.
Lord Neuberger MR and Stanley Burnton LJ (Hallett LJ agreeing) both held that the power to remove someone from the United Kingdom was purely discretionary and that even if there was some public law reason why it was unlawful not to use the power in a particular case this fact could not retrospectively invalidate an otherwise sound decision not to grant a person further leave to remain in the United Kingdom. Mirza and Sapkota were held to be irreconcilable wit other Court of Appeal authority and the Court declined to follow them.
The appellants are expected to seek permission to go to the Supreme Court.
Thomas Roe appeared for the Home Secretary.