Mirza & Ors v Secretary of State for the Home Department

The Secretary of State is not generally obliged to decide whether to issue removal directions at the same time as refusing an application to vary leave to remain. Paragraph 395C of the Immigration Rules concerns a separate discretionary removal decision and requires consideration of relevant factors known to the Secretary of State when that discretion is exercised. The decision in TE (Eritrea) establishes that variation and removal may be considered together, and that there may be no legal inhibition against an in-country appeal, but it does not impose a universal duty to decide both matters in tandem. Where an applicant has advanced no relevant removal factors and has not requested a removal decision, no such duty arises. The claims for judicial review were therefore rejected.

The claimants’ applications to vary leave to remain as students or Tier 1 migrants were refused. Their appeals against those refusals were dismissed on reconsideration, and the Court of Appeal later held that it had no jurisdiction to entertain their appeals, while allowing them time to seek judicial review.

The claimants challenged the Secretary of State’s failure to decide whether to issue removal directions at the same time as refusing variation. They argued that paragraph 395C of the Immigration Rules, the one-stop appeal policy and the statutory scheme required simultaneous consideration, enabling them to rely on removal factors while they remained lawfully in the United Kingdom.

1. Claims rejected. The claimants established no legal obligation requiring the Secretary of State to consider removal directions at the same time as refusing variation of leave.
2. Section 47 of the Immigration, Asylum and Nationality Act 2006 conferred a power to decide that a person was to be removed while leave remained extended under section 3C of the Immigration Act 1971. It did not impose a duty to make that decision.
3. Paragraph 395C is directed to the discretionary decision whether to remove a person who has no right to remain. Its obligation is to consider relevant factors known to the Secretary of State, including the listed factors. It is distinct from the decision whether the applicant has a right to remain or whether leave should be varied.
4. The statutory scheme distinguishes refusal of variation under section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 from a decision to remove under section 82(2)(g). Appeals against those decisions have different statutory features, including the restriction in section 92 on in-country appeals against removal decisions.
5. TE (Eritrea) was binding, but its decision was limited. It held that there was no legal inhibition against considering variation and removal together and that, where an applicant requested such consideration, there might be no good reason to separate the decisions. It did not decide that the Secretary of State must always make both decisions in tandem.
6. Here, the claimants had made no request for removal directions and had advanced no factors relevant to paragraph 395C in response to a section 120 notice or on reconsideration. The court could not impose a legal duty to consider unknown factors. The one-stop appeal policy did not alter that conclusion.
7. The Article 8 argument failed. Any disadvantage associated with becoming an overstayer resulted from the statutory scheme, and the Convention did not require the United Kingdom to refrain from enforcing removal against a person without a right to remain where removal would not breach Convention rights.
8. Permission to move for judicial review was granted, but the applications were rejected. Delay was not relied on as a reason for refusal.

• Court of Appeal: The claimants’ appeals against refusal of variation were held to be outside the court’s jurisdiction on 3 February 2010. The court postponed dismissal to permit judicial review proceedings.
• High Court (Administrative Court): Permission to move for judicial review was granted, but the claims were rejected.