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

A removal decision under section 10(1) of the Immigration and Asylum Act 1999 falls within the statutory appeal route for removal decisions. It does not also constitute a variation or curtailment of leave attracting an in-country appeal under the separate provisions of the Nationality, Immigration and Asylum Act 2002. The removal and curtailment routes are distinct and must not be conflated. Accordingly, a claimant whose removal decision was made under section 10(1)(b) had no in-country right of appeal on the basis that the decision varied his leave.

The claimant, a Pakistani national, sought judicial review of a decision to remove him under section 10(1)(b) of the Immigration and Asylum Act 1999, following an allegation that he had obtained leave to remain by deception. Permission was granted on the single ground that the claimant had an in-country right of appeal, relying on CD (s.10 curtailment: right of appeal) India [2008] UKAIT 00055.

The central issue was whether a section 10(1)(b) removal decision also amounted to a variation of leave, engaging the in-country appeal provisions in sections 82(2)(e) and 92(2) of the Nationality, Immigration and Asylum Act 2002, rather than only the removal appeal route in sections 82(2)(g) and 92.

1. The claim for judicial review was dismissed. The sole ground on which permission had been granted depended on the existence of an in-country right of appeal.
2. Section 10(1)(b) of the Immigration and Asylum Act 1999 provides the statutory basis for the removal decision. Such a decision attracts a right of appeal under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, but section 92 prevents that appeal from being brought while the person remains in the United Kingdom.
3. The earlier decision in CD (s.10 curtailment: right of appeal) India [2008] UKAIT 00055, which treated a section 10(1)(b) decision as also varying leave so as to create an in-country appeal under sections 82(2)(e) and 92(2), could not stand in view of the Court of Appeal’s decision in R (on the application of RK (Nepal)) v Secretary of State for the Home Department [2009] EWCA Civ 359.
4. The Court of Appeal had held that a decision under section 10(1) could not fall within section 82(2)(e) when Parliament had specified that it fell within section 82(2)(g). The Secretary of State could use either the section 10 removal route or the curtailment provisions of the Immigration Rules, but the two routes were distinct and must not be blurred.
5. The claimant was ordered to pay the defendant’s costs. No order was made against the claimant’s solicitors because the judge was not satisfied that they had received sufficiently clear notice that a wasted-costs application would be made at the hearing.

First-instance judicial review decision. The judgment records that permission was initially refused by Wyn Williams J and was granted on renewal by King J on 13 October 2008, limited to the in-country right of appeal ground.