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

Where an overstayer or unlawful entrant applies from within the United Kingdom to regularise their position and the application is refused without removal directions, the statutory scheme generally provides no in-country right of appeal. The Secretary of State is not ordinarily required to combine the refusal with a removal decision merely because a human rights claim has been made. Judicial review may be arguable only in special circumstances, such as substantial procedural unfairness or overlapping claims which make separate decisions irrational. The exceptional decision in TE (Eritrea) v Secretary of State, [2009] EWCA Civ 174, did not establish a general rule requiring refusal and removal decisions to be made together.

The claimant, a Thai national who had overstayed since entering the United Kingdom as a visitor, applied for leave to remain outside the Immigration Rules and relied on Article 8. The Secretary of State refused the application but made no removal decision. The claimant sought permission for judicial review, arguing that fairness required a removal decision so that an in-country appeal would arise under sections 82 and 92 of the Nationality and Immigration Act 2002. The central issue was whether the Secretary of State was required to combine the refusal of leave with a removal decision.

1. Permission refused. The refusal of the claimant’s application was not an immigration decision within section 82(2) of the Nationality and Immigration Act 2002. Section 92 therefore did not confer an in-country right of appeal. Section 92(4)(a) did not assist because it applied only where there was an immigration decision, and no such decision had been made.
2. The Secretary of State was entitled, as a matter of law and policy, to deal separately with an application by a person unlawfully present who sought to regularise their position. The making of an Article 8 or other human rights claim did not itself require the refusal of leave and removal decision to be joined.
3. Claims challenging that approach would not ordinarily be arguable unless special circumstances existed. TE (Eritrea) v Secretary of State, [2009] EWCA Civ 174, was exceptional. It concerned a person who had been lawfully present, had applied in time, and had suffered procedural unfairness because relevant matters had not been considered on an existing appeal. It did not establish a general obligation to determine variation and removal in tandem.
4. Exceptional circumstances might arise where separate decisions produced irrationality or unfairness, for example where closely overlapping claims by spouses were treated differently. No such circumstances arose here. The claimant was ordered to pay £480 in costs for the acknowledgement of service.