Farinloye & Ors, R (on the application of) v Secretary of State for the Home Department

An appeal against a removal decision on human-rights grounds is not an appeal against a refusal of leave to remain. A tribunal determination that removal would breach article 8 ECHR prevents removal, but does not itself require the Secretary of State to grant indefinite leave to remain.

The Secretary of State retains the statutory discretion to decide whether leave should be granted and, if so, its duration. A case concerning an unappealed adjudicator’s decision on an entitlement to indefinite leave under the Immigration Rules does not govern a removal appeal. New judicial-review grounds should not ordinarily be introduced for the first time on appeal where the decision-maker has not had a proper opportunity to consider and answer them.

The claimants, Nigerian nationals, applied for indefinite leave to remain. The Secretary of State refused the application and made decisions to remove them. An immigration judge allowed their appeals because removal would breach article 8 ECHR, principally in light of the effect on the daughters’ education and the Home Office delay.

The Secretary of State thereafter granted three years’ discretionary leave. Collins J allowed judicial review and held that the immigration judge’s unchallenged determination required grants of indefinite leave: [2008] EWHC 2938 (Admin). The Secretary of State appealed. The central issue was whether the tribunal’s determination on the lawfulness of removal compelled a grant of indefinite leave to remain.

1. Appeal allowed unanimously. Richards LJ, with whom Jackson and Dyson LJJ agreed, held that Collins J’s reasoning rested on a mistaken characterisation of the tribunal appeals. They were appeals against decisions to remove the claimants, not appeals against refusals of indefinite leave to remain.

2. Under Nationality, Immigration and Asylum Act 2002, section 82, the relevant appealable immigration decision was the decision to remove by directions under section 10(1)(a) of the Immigration and Asylum Act 1999. The applicable ground was that removal would be unlawful under section 6 of the Human Rights Act 1998 because it was incompatible with Convention rights. A simple refusal of leave to remain was not itself appealable.

3. The immigration judge’s determination therefore established only that removal would be unlawful on article 8 grounds. It did not determine an entitlement to indefinite leave. R v Secretary of State for the Home Department, ex parte Boafo [2002] EWCA Civ 44 was distinguishable because it concerned an appeal against refusal of indefinite leave where the applicant claimed an entitlement to it under the Immigration Rules.

4. The power to grant leave remained a discretion entrusted to the Secretary of State by section 4(1) of the Immigration Act 1971. Since removal could not lawfully proceed, the Secretary of State had to decide whether to grant leave and for how long. There was no legal requirement to grant indefinite leave, and he could have regard to the discretionary-leave policy.

5. The court refused permission to advance new challenges to the policy, reasons and alleged discrimination. They were raised too late and the Secretary of State had not had a proper opportunity as decision-maker to consider the representations and provide a reasoned response. The order below was quashed and the judicial-review claim dismissed.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal, quashed the order below and dismissed the judicial-review claim: [2010] EWCA Civ 203.
• Administrative Court: Collins J allowed judicial review and held that effect should be given to the immigration judge’s determination by granting indefinite leave to remain: [2008] EWHC 2938 (Admin).
• Asylum and Immigration Tribunal: Immigration Judge Herbert allowed the claimants’ appeals against the removal decisions on article 8 ECHR grounds.