TE (Eritrea) v Secretary of State for the Home Department

Paragraph 395C of the Immigration Rules provides a discretionary safeguard which extends beyond protection under the Refugee Convention and the European Convention on Human Rights. There is no general obligation to decide an application to vary leave and prospective removal together. However, where joint consideration is legally possible, the choice to separate the decisions must be fair and rational. It cannot be random or dictated merely by administrative convenience.

A compendious process will ordinarily serve the public interest by avoiding duplicated proceedings and preventing an applicant from having to become an overstayer before obtaining consideration of the factors against removal.

The appellant, an Eritrean national, received discretionary leave while a minor. Before that leave expired, she applied for an extension. The Secretary of State refused the application without considering paragraph 395C of the Immigration Rules. An immigration judge dismissed her appeal, and a senior immigration judge found no material error of law on reconsideration.

The appellant appealed with permission. She argued that the Secretary of State should have considered the paragraph 395C factors while deciding whether to vary her leave. Deferring that consideration until removal was contemplated would require her to become an overstayer, with associated criminal, employment, benefits and future entry-clearance consequences.

The central issue was whether variation of leave and prospective removal should have been considered together or in immediate sequence.

1. Final disposal was deferred. Sedley LJ, with whom Jacob LJ agreed, held that the Secretary of State should have an opportunity to address paragraph 395C on the proper basis. The court invited proposals for an order that would enable that consideration. Lloyd LJ agreed that the paragraph 395C exercise should now be undertaken while the appeal remained pending.

2. Paragraph 395C has an operation independent of paragraph 395D. Its factors overlap with, but extend beyond, matters capable of establishing a breach of the Refugee Convention or the European Convention on Human Rights. It can therefore operate in an applicant's favour even though removal would not violate Convention obligations.

3. There was no general rule that the Secretary of State must always determine variation of leave and prospective removal together. There could be cases in which separating them was practical and fair. Nevertheless, where nothing prevented joint consideration, a compendious process ordinarily promoted sound administration and avoided unnecessary proceedings. The possibility that new grounds might later arise did not justify routine segregation.

4. The decision whether to separate the stages had to be fair and rational. It could not properly be random or dictated solely by administrative convenience. Requiring a person to become an overstayer before obtaining consideration of removal objections could expose that person to criminal liability and loss of employment and benefits. The appellant's wish to avoid those consequences was reasonable and required proper consideration.

5. The reasoning in JM v Secretary of State for the Home Department [2006] EWCA Civ 1402, although concerned with different statutory provisions and human-rights grounds, supported dealing compendiously with overlapping variation and removal issues. EO (Turkey) [2007] UKIAT 00062 also recognised the distinct role of paragraph 395C in appeals against removal decisions.

6. Lloyd LJ additionally considered that a ground under section 84(1)(f) presupposed that the relevant material had been placed before the original decision-maker. The appellant had not initially identified paragraph 395C or distinct compassionate factors. He nevertheless agreed that, once the point had been raised on reconsideration, it was appropriate for the Secretary of State to undertake the exercise before final disposal.

1. Court of Appeal (Civil Division): Held that there was no universal duty to combine variation and removal decisions, but the Secretary of State should now address paragraph 395C. Final disposal was deferred pending proposals as to the form of order.

2. Asylum and Immigration Tribunal, reconsideration: Senior Immigration Judge Taylor held that the original determination contained no material error of law because paragraph 395C applied in the context of a decision to remove under section 10, not the variation appeal.

3. Asylum and Immigration Tribunal: Immigration Judge Thornton dismissed the appellant's appeal against refusal to vary her leave.