SA (Pakistan) & Anor v Secretary of State for the Home Department

An appeal on a point of law following reconsideration by the Asylum and Immigration Tribunal must generally arise from that tribunal’s decision and remain within the legal merits of the original immigration decision. The ground that a decision is otherwise not in accordance with the law does not permit a challenge to a legally secure refusal of leave merely because the Secretary of State did not also make a removal decision.

A complaint about the sequential handling of refusal of leave and removal is therefore outside such a statutory appeal. Its validity may instead be tested by judicial review. The court may defer the effective date of dismissing an appeal to preserve leave extended under section 3C while properly constituted judicial review proceedings are pursued.

Five linked appeals were brought from decisions of the Asylum and Immigration Tribunal following reconsideration. Four appellants had applied in time to extend limited leave to remain. Their applications were refused under paragraph 322(1A) of the Immigration Rules, without simultaneous removal directions. The tribunal dismissed their appeals without considering compassionate or human-rights objections to removal.

The fifth appellant, NB, had been refused entry after his employment ended. Removal directions had been made and the tribunal had held that the discretion not to remove him could not reasonably have been exercised in his favour.

The central issue was whether the statutory appeals could determine the contention, associated with TE (Eritrea) [2009] EWCA Civ 174, that it was unfair or irrational to refuse variation of leave without deciding removal at the same time.

Appeals dismissed. Laws LJ gave the judgment of the court, with which Sedley and Patten LJJ agreed.

1. NB’s appeal was dismissed outright. His case concerned refusal of entry and removal under Schedule 2 to the Immigration Act 1971, rather than refusal to vary leave without removal directions. Removal directions had been given, and there was no permission to challenge the tribunal’s conclusion on the discretion not to remove him.

2. For the other appellants, the court had no jurisdiction within these statutory appeals to decide the TE (Eritrea) point. The appeal to the tribunal had been against the refusal to vary leave alone. The tribunal had neither been asked to decide, nor decided, whether the Secretary of State should also have made a removal decision.

3. The ground in section 84(1)(e) of the Nationality Immigration and Asylum Act 2002, that a decision is otherwise not in accordance with the law, did not extend to a complaint that a separate decision ought also to have been made. The refusals themselves were legally secure under paragraph 322(1A) of the Immigration Rules, which allowed no discretion.

4. Section 103B(1) of the 2002 Act did not permit a further appeal on any point of law whatever. The point must generally arise out of the tribunal’s reconsideration and could not travel beyond the legal merits of the original immigration decision. The qualification noted in Bulale v SSHD [2008] EWCA Civ 806 did not justify a wider construction.

5. The court did not determine the substantive legality of the alleged sequential practice. It dismissed the four appeals, but deferred the effect of dismissal for four weeks, or until any judicial review proceedings were disposed of, so that leave extended by section 3C of the Immigration Act 1971 could be preserved while judicial review was sought.

• Court of Appeal (Civil Division) — dismissed the linked appeals: SA (Pakistan) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 210. The dismissal of four appeals was deferred pending any judicial review proceedings.
• Asylum and Immigration Tribunal — following reconsideration, dismissed the appellants’ appeals (AIT No. IA/01819/2009).