IT (Sierra Leone) v Secretary of State for the Home Department

A tribunal’s power under section 87(1) of the Nationality, Immigration and Asylum Act 2002 extends only to directions needed to give effect to its decision. Where an Article 8 appeal concerns removal, a decision allowing the appeal prevents removal but does not determine whether leave to remain should be granted, or its duration.

The Secretary of State retains the discretionary power to grant leave. A tribunal therefore cannot direct a grant of indefinite leave to remain merely because removal would breach Article 8. A time-limited grant is not irrational simply because the claimant’s present circumstances appear unlikely to change.

The appellant, a Sierra Leone national resident in the United Kingdom since 1993, successfully appealed the Secretary of State’s removal decision on Article 8 grounds. The Secretary of State subsequently granted three years’ discretionary leave rather than indefinite leave to remain.

Immigration Judge Gibb later purported to direct the grant of indefinite leave to remain. On reconsideration, the Asylum and Immigration Tribunal held that the judge had lacked power to make that direction and substituted a decision allowing the Article 8 appeal without a direction.

The appeal to the Court of Appeal concerned whether section 87 of the Nationality, Immigration and Asylum Act 2002 empowered the Tribunal to require indefinite leave, and whether three years’ discretionary leave was the only irrational response to the original Article 8 findings.

1. Appeal dismissed unanimously. Pill LJ gave the leading judgment. Sedley LJ agreed with both judgments, and Lloyd LJ agreed that the appeal should be dismissed.

2. The Tribunal had no jurisdiction to direct the Secretary of State to grant indefinite leave. Under section 87(1) of the Nationality, Immigration and Asylum Act 2002, a direction must be for the purpose of giving effect to the Tribunal’s decision. This was an Article 8 removal appeal. Its effect was that the appellant could not lawfully be removed; it was not an appeal against a refusal of leave to remain.

   The Court followed Farinloye v Secretary of State for the Home Department [2010] EWCA Civ 203. The discretion whether to grant leave, and for what period, remained with the Secretary of State under section 4(1) of the Immigration Act 1971. Ex parte Boafo [2002] 1 WLR 1919 was different because it concerned an appeal against refusal of indefinite leave under the Immigration Rules.

3. Immigration Judge Gibb’s view that leave should be aligned with that of the appellant’s family did not compel indefinite leave. The Secretary of State’s three-year grant was rational. Events during that period could materially affect the Article 8 assessment. The Court applied the reasoning in R (Islam Shahid) v Secretary of State For The Home Department [2004] EWHC 2550 (Admin).

4. The Court did not decide whether a section 87 direction must be made when the substantive decision is notified. Pill LJ stated that it should normally be sought at the Tribunal hearing and be clearly expressed. Lloyd LJ added, obiter, that a later direction might be possible where the need became apparent only after a written decision, although an application three and a half months later was very late.

• Court of Appeal (Civil Division) — in [2010] EWCA Civ 787, dismissed the appellant’s appeal and upheld the conclusion that no direction for indefinite leave could be made.
• Asylum and Immigration Tribunal (Senior Immigration Judge Gill) — on reconsideration, held that Immigration Judge Gibb had materially erred in issuing the direction. It substituted a decision allowing the Article 8 appeal without a direction.
• Asylum and Immigration Tribunal (Immigration Judge Gibb) — allowed the appeal against removal on Article 8 grounds and later purported to add a direction requiring indefinite leave to remain.