Gungor, R (on the application of) v Secretary of State for the Home Department

A refusal of leave to remain and a decision that a person is to be removed are distinct immigration decisions. A refusal cannot be treated as a removal decision merely because removal directions already exist. Where a person has no current leave, the refusal does not fall within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. Nor does it fall within section 82(2)(g) unless it is itself a decision that the person is to be removed. A tribunal’s direction that removal must await consideration of an outstanding application does not leave the appeal unresolved on its merits or convert the later refusal into an appealable decision.

The claimant, a Turkish national, challenged the Secretary of State’s refusal of an application for leave to remain under the Ankara Agreement. An earlier immigration judge decision had been appealed to the Asylum and Immigration Tribunal. Senior Immigration Judge Jarvis allowed the appeal under article 8 only to the extent that removal would be unlawful before the Secretary of State had considered the Ankara Agreement application.

The Secretary of State subsequently considered and refused that application, stating that there was no right of appeal. The claimant sought judicial review, arguing that the refusal was an appealable immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002.

1. Application dismissed. The Secretary of State’s refusal of the application was not an appealable decision under section 82 of the Nationality, Immigration and Asylum Act 2002.

2. Section 82(2)(d) concerns a refusal to vary a person’s leave to enter or remain where the result is that the person has no leave. The claimant accepted that this provision did not apply because he had no current leave when the application was refused.

3. Section 82(2)(g) concerns a decision that a person is to be removed by directions under the specified statutory provisions. A decision refusing leave to remain is legally distinct from a decision directing removal. Existing removal directions, given years earlier, did not make the later refusal a removal decision. It was artificial to characterise the refusal as such.

4. The Senior Immigration Judge’s decision was final on the issues determined. It did not leave an incomplete appeal. It established only that removal would breach article 8 if carried out before the Secretary of State had considered the outstanding Ankara Agreement application.

5. The Secretary of State complied with that decision by considering the application and reaching a refusal. Any substantive challenge to that refusal could, in principle, be brought by judicial review, but the refusal was not subject to the statutory appeal process.

The judicial review claim was dismissed. Costs were assessed at £6,000 inclusive of VAT and disbursements.

Permission to apply for judicial review was granted by Saunders J on 1 May 2008. The present court determined the judicial review claim at first instance.