Immigration Solicitors

By Alexander Cooray

On 23 February 2011 the Court of Appeal handed down a brace of judgments in Daley Murdock v SSHD[2011] EWCA Civ 161 and Mirza and Others v SSHD[2011] EWCA Civ 159. These were both cases concerning whether the Secretary of State was obliged to make an appealable immigration decision at the same time as she refused an application for leave to remain. The two cases had been heard in succession, and Sedley LJ gave the lead judgment in both cases.

The law

Section 82(2) of the Nationality, Immigration and Asylum Act 2002 sets out the types of decisions which will normally attract a right of appeal, including as section 82(2)(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’.

This is of particular relevance where:

• The applicant is an overstayer or an illegal entrant; and
• They make an application for leave to remain; and
• Their application is refused.

The applicant will then end up with no leave to remain, but that is not the result of the refusal: they had no leave to remain to start with.

The Secretary of State could, if she so wished, decide to make the decision in a way that does attract a right of appeal. Most obviously, she could make a decision that the applicant is to be removed from the United Kingdom.

The arguments

In Daley Murdock and in Mirza it was argued that it was unreasonable for the Secretary of State not to make an appealable decision at the same time as the refusal, as the result was that the appellants – who wished to appeal against the decisions – were stranded without leave in the United Kingdom, their presence being unlawful, and without any idea of when they would be given a decision against which they could appeal.

In response, the Secretary of State explained why she did not always refuse applications in a way that gave rise to a right of appeal. In essence she said that ‘a significant proportion’ of people refused leave then chose to leave the United Kingdom voluntarily – by her reckoning, 40,000 in 2009. Therefore, a removal decision was unnecessary. The Secretary of State was entitled to wait, to give them an opportunity to leave voluntarily. If they did not, she would go on to consider enforcement action (which would attract a right of appeal) at some point in the future.

(We have seen very few of these voluntary returnees. Our clients are generally keen to remain in the United Kingdom, which is why they made their applications in the first place. They are also reluctant to accept that the Secretary of State was right to refuse them, and generally wish to challenge an adverse decision if they can. Perhaps there is a higher proportion of voluntary returns amongst unrepresented applicants.)

The judgment

The Court of Appeal accepted the Secretary of State’s reasoning, but reached slightly different conclusions in the two cases:

• In Daley Murdock, where the appellant was an overstayer, the Court considered that the Secretary of State was entitled to wait to see whether the appellants left the United Kingdom voluntarily.

• However, in Mirza, where the appellants had had leave at the time of their applications, the Court held that although there was no absolute obligation on the Secretary of State, nevertheless ‘there is no legal justification for routinely putting removal on prolonged or indefinite hold.’

Now what?

Despite these disappointing decisions, there is still scope for argument on the issue. In particular:

1. The Court of Appeal left open the issue of how long the Secretary of State could reasonably delay in making an appealable immigration decision. At some point, if the applicant had not left the United Kingdom, it must be the case that a failure to make an enforcement decision is unreasonable. (The Daily Mail would certainly think so.)

2. There was very little discussion of this point in the judgments, but the Court did seem to favour a view that where there are children in the case, the Secretary of State should try to resolve the issue more quickly.

3. It is also open to us to argue that if an applicant formally notifies the Secretary of State that they do not intend to leave voluntarily and that they wish to challenge the decision, then the justification for delay falls away and an enforcement decision should be made immediately.

There are still a number of cases before the Administrative Court, in which these points might be resolved.