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

Where administrative removal is pursued for breach of a condition of limited leave, the resulting immigration decision falls under Nationality, Immigration and Asylum Act 2002, section 82(2)(g), rather than section 82(2)(e). The two provisions are mutually exclusive and do not give the individual an election between in-country and out-of-country appeals. The statutory framework prevails over administrative guidance or the language of the Immigration Rules. A bare, unparticularised reference to human rights does not amount to a human rights claim under section 92(4) and does not create an in-country right of appeal.

The claimant entered the United Kingdom as a student subject to a condition restricting term-time work. He was arrested after allegedly working in excess of that restriction and was served with removal documentation under section 10 of the Immigration and Asylum Act 1999.

He sought judicial review, arguing that the decision simultaneously fell within sections 82(2)(e) and 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, thereby giving him an in-country right of appeal. He also relied on a reference to Article 8 in his grounds. The central issues were whether the two appeal routes could coexist and whether that reference engaged section 92(4).

1. The claim was dismissed. Judgment was entered for the defendant, with no order as to costs.
2. Where section 10 of the Immigration and Asylum Act 1999 is invoked because a person has breached a condition of limited leave, the resulting decision attracts the out-of-country appeal route under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002. Sections 82(2)(e) and 82(2)(g) are mutually exclusive. The legislation provides no right of election between the two routes.
3. Section 92(2) deliberately differentiates between decisions carrying in-country appeals and decisions carrying out-of-country appeals. Treating one decision as falling within both provisions would undermine that statutory distinction. The immigration officer’s choice between administrative removal and action to curtail leave may consequently affect the forum and timing of any appeal.
4. The court must begin with the statutory language. Immigration Rules and administrative guidance are subsidiary and cannot displace the statutory framework. The approach in Lim v Secretary of State for the Home Department [2007] EWCA Civ 773 supported treating the out-of-country appeal as adequate in this context, notwithstanding individual hardship.
5. The claimant’s reference to Article 8 in his grounds was a bald and wholly unparticularised assertion. It did not amount to a human rights claim for section 92(4) purposes and therefore did not confer an in-country right of appeal.
6. Permission to appeal was refused because the judge considered the statutory construction clear and found no realistic prospect of success or sufficient public importance requiring further consideration.

First-instance judicial review proceedings. The judgment records that permission to apply for judicial review had previously been granted only on the issue concerning the interaction between sections 82(2)(e) and 82(2)(g) of the Nationality, Immigration and Asylum Act 2002. Permission to appeal was refused.