Sapkota & Anor v Secretary of State for the Home Department

By a majority, an immigration decision refusing to vary leave may be challenged under section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002 where the Secretary of State unjustifiably separates that decision from prompt consideration of removal.

The Secretary of State should ordinarily invite representations through a one-stop notice and consider leave, removal and relevant paragraph 395C factors compendiously. A modest response period or a lawful reason for separate treatment may be justified. The failure to issue removal directions does not itself breach Article 8. Immigration Rules are construed objectively by their words; a student rule requiring an intention to leave could not be expanded by later policy statements.

These conjoined appeals concerned refusals by the Secretary of State to vary the appellants’ leave to remain. Ramesh Sapkota had applied to remain as a student. KA had applied as a Tier 1 (Post-Study Work) Migrant, but the Secretary of State found that he had submitted false documents.

The First-tier Tribunal dismissed both appeals. The Upper Tribunal dismissed both appeals. In Sapkota’s case it held that it had no jurisdiction to consider the Secretary of State’s failure to make a removal decision. KA had not raised that issue below.

The appeals raised the jurisdiction of the tribunals and the Court of Appeal, the effect of separating refusal of leave from removal, the relevance of Article 8, and whether paragraph 57(vi) of the Immigration Rules required a student to intend to leave the United Kingdom at the end of studies.

1. Disposition. Aikens LJ, with Jackson LJ agreeing, allowed RS’s appeal. Permission to appeal was granted to KA, whose appeal was adjourned on broadly similar terms in light of the Secretary of State’s offer. Arden LJ dissented on the jurisdiction issue and would have dismissed the appeals.
2. Jurisdiction. The essential decision in SA (Pakistan) v SSHD [2010] EWCA Civ 210 concerned the requirement that a point of law arise from the Upper Tribunal’s decision and not travel beyond the legal merits of the immigration decision under appeal. That principle applied to KA because the segregation issue had not been argued below. In RS’s case, however, the issue had been raised in the Upper Tribunal and the Court of Appeal had jurisdiction under section 13(1) of the Tribunals, Courts and Enforcement Act 2007.
3. Merits. Following Mirza v SSHD [2011] EWCA Civ 159, the Secretary of State ordinarily had to initiate a compendious process. She should invite representations as to why removal should not follow refusal of leave, allow a reasonable response period, and then consider refusal of leave, possible removal under section 47 of the Immigration, Asylum and Nationality Act 2006, and paragraph 395C factors. A modest delay or separate treatment could be justified, but no such countervailing reason existed in RS’s case. The refusal decision was therefore not in accordance with the law. RS’s case was remitted for reconsideration.
4. Article 8. The absence of removal directions did not itself constitute an unlawful interference with private or family life. It might lead to such an interference, but removal could not be presumed and the segregation issue itself supplied the necessary remedy.
5. Paragraph 57(vi). The Immigration Rules are policy statements, but must be construed objectively and sensibly according to their natural and ordinary meaning. Later policy material could not justify inserting an alternative route into paragraph 57(vi). The rule required an intention to leave the United Kingdom at the end of studies, and RS’s challenge on that issue failed.
6. Section 25. Aikens LJ added that section 25 of the 2007 Act concerned supplementary and mainly procedural powers of the Upper Tribunal, not substantive jurisdiction. That observation was unnecessary to the disposal because the section 13 jurisdiction issue resolved the point.

• Court of Appeal (Civil Division): RS’s appeal allowed and his case remitted to the Secretary of State. Permission to appeal granted to KA and his appeal adjourned on broadly similar terms. Arden LJ would have dismissed the appeals.
• Upper Tribunal (Immigration and Asylum Chamber): RS’s appeal dismissed, including on the basis that the tribunal lacked jurisdiction to consider the segregation issue. KA’s appeal dismissed; he had not raised the segregation issue below.
• First-tier Tribunal (Immigration and Asylum Chamber): Both appeals dismissed. RS failed to establish the required intention to leave after his studies. KA failed to establish that he had completed the claimed postgraduate course and had knowingly submitted false documents.