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

A removal decision expressly made under section 10(1)(a) of the Immigration and Asylum Act 1999 falls within section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002. It cannot also be treated as a variation of leave under section 82(2)(e). The person therefore has only an out-of-country appeal unless another statutory exception applies.

Administrative removal and curtailment of leave are distinct routes. The possibility that the Secretary of State could have curtailed leave does not change the legal character or appeal consequences of a removal decision actually made under section 10.

Judicial review remains available in principle, but challenges suited to the statutory appeal process should ordinarily be pursued from abroad. The High Court should intervene only where precedent facts, suitable questions of law, or special or exceptional factors justify review.

Two Nepalese students were served with removal decisions under section 10(1)(a) of the Immigration and Asylum Act 1999 after they were found working for more hours than their conditions of leave permitted. Their removal directions stated that they had no right of appeal while in the United Kingdom.

Collins J refused permission to seek judicial review on paper. HHJ McKenna QC, sitting as a deputy High Court judge, refused the renewed application. The applicants then sought permission to appeal.

The Court of Appeal had to resolve conflicting first-instance decisions in R on the application of CD (India) v Secretary of State for the Home Department [2008] UKAIT 00055 and R on the application of Malik Meharali Saleh v Secretary of State for the Home Department [2008] EWHC 3196 (Admin). The issue was whether a section 10 removal decision affecting a person who still had limited leave could be treated as a variation of leave carrying an in-country right of appeal.

1. The applications for permission to appeal were refused. The decisions were expressly made under section 10(1)(a) of the Immigration and Asylum Act 1999. They therefore fell within section 82(2)(g), rather than section 82(2)(e), of the Nationality, Immigration and Asylum Act 2002. Section 92(2) did not permit an appeal against such a decision while the applicants remained in the United Kingdom.

2. The statutory appeal framework must be respected. A decision made under section 10(1) cannot simultaneously be categorised as a variation of leave merely because its practical effect is to invalidate existing leave. The possibility that the Secretary of State could instead have curtailed leave under the Immigration Rules was irrelevant because that route had not been chosen and the choice of the section 10 power had not itself been challenged.

3. Administrative removal under section 10 and curtailment under the Immigration Rules are distinct routes with different appeal consequences. A person removed through the section 10 route is confined to an out-of-country appeal unless an applicable statutory exception or a proper basis for judicial review exists.

4. Following R on the application of Lim v Secretary of State for the Home Department [2007] EWCA Civ 773, the High Court retains jurisdiction to determine precedent facts and suitable questions of law. Its discretion must nevertheless be calibrated to Parliament’s appeal scheme. Challenges more appropriately determined by the statutory appeal process should ordinarily be pursued from abroad, and judicial review should be entertained only where special or exceptional factors justify it. No such challenge had been advanced here.

5. R on the application of CD (India) v Secretary of State for the Home Department [2008] UKAIT 00055 was wrongly decided. R on the application of Malik Meharali Saleh v Secretary of State for the Home Department [2008] EWHC 3196 (Admin) was correct. The court also approved the materially identical conclusion in R on the application of Ms Qin Yu v Secretary of State for the Home Department [2008] EWHC 3072 (Admin). Moses and Waller LJJ agreed with Aikens LJ.

1. Court of Appeal (Civil Division): Refused the applications for permission to appeal and held that the applicants had no in-country right of appeal against the section 10(1)(a) removal decisions: [2009] EWCA Civ 359.
2. High Court, Queen’s Bench Division: HHJ McKenna QC, sitting as a deputy High Court judge, refused the renewed applications for permission to seek judicial review.
3. High Court, Queen’s Bench Division: Collins J refused permission to seek judicial review on paper, holding that the decisions fell under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 and carried no in-country right of appeal.