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

An overstayer who applies for leave to remain after existing leave has expired has no statutory right of appeal against refusal of that application. The Secretary of State has power to make removal directions, but no general duty to do so merely to generate an appealable immigration decision. The statutory scheme instead expects an overstayer to leave voluntarily. The position differs where a person applied while lawfully present and has an existing appeal against refusal of leave: in such a case, simultaneous consideration of removal may be appropriate, particularly where separating the decisions would be unfair or inefficient. Any exceptional duty to consider removal concurrently depends on special circumstances. Generalised assertions of fairness, delay in processing an invalid application, or the desirability of obtaining an appeal do not themselves create such a duty.

The claimant, who had entered the United Kingdom as a minor, was granted leave until her eighteenth birthday. Her first attempt to obtain further leave was invalid. By the time she made a valid application relying on article 8, her existing leave had expired. The Secretary of State refused the application and stated that there was no right of appeal because the claimant had had no leave when she applied.

The claimant sought judicial review and a mandatory order requiring the Secretary of State to make a removal decision under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, thereby creating an in-country right of appeal. The central issue was whether the Secretary of State was legally required to make removal directions when refusing an application made by an overstayer.

1. Claim refused. The Secretary of State had power to make a removal decision at the same time as refusing the application, but no duty to do so merely to confer a right of appeal.
2. The statutory scheme distinguishes between refusal of an application made while the applicant has leave and refusal of an application made after leave has expired. In the latter case, refusal does not constitute an appealable immigration decision under section 82(2)(d), because the applicant already had no leave when the decision was made. A removal decision may be appealable, but the possibility of an appeal does not require the Secretary of State to commence enforcement.
3. TE (Eritrea) v Secretary of State for the Home Department [2009] EWCA Civ 174 concerned a person who was lawfully present and already had an appeal against refusal of leave. Its observations supported concurrent consideration of variation and removal in that context, but did not establish a general legal obligation to decide both matters in tandem. The claimant’s position was materially different because she was already an overstayer and had no appeal against refusal of leave.
4. The reasoning in R (Daley-Murdock) v Secretary of State for the Home Department [2010] EWHC 1488 (Admin) and Mirza & Ors v Secretary of State for the Home Department [2010] EWHC 2002 (Admin) supported that distinction. The Secretary of State could encourage voluntary departure and was not required to make removal directions simply to avoid the claimant remaining unlawfully in order to obtain an appeal.
5. It was unnecessary to determine the full scope of any special circumstances which might make concurrent consideration unfair. Nothing advanced by the claimant amounted to such circumstances. The delay in identifying the defects in her first application did not alter the statutory consequence that the valid application was made after her leave had expired.

Permission for judicial review was refused on the papers by Blair J and granted at a renewal hearing by Stadlen J. The Administrative Court then refused the substantive claim.