Mirza & Ors, R (on the application of) v Secretary of State for the Home Department

After refusing an application to extend leave to remain, the Secretary of State must address removal within a reasonable period. A short pause may be justified to allow the person to explain or excuse an unexpected breach of the Immigration Rules, but routine prolonged or indefinite deferral is unlawful.

The statutory scheme seeks, so far as practicable, a compendious determination of continued residence. The Secretary of State should ordinarily invite representations on removal and decide the issue promptly, while retaining flexibility for cases in which separating the decisions is justified. Relief may be limited to individual cases.

The five appellants had been lawfully present in the United Kingdom but were refused further leave to remain. None challenged the grounds of refusal. Removal directions had not been made, so they could not obtain an appealable removal decision or advance arguments under rule 395C of the Immigration Rules.

The first four appellants sought judicial review after the Administrative Court dismissed their claims: [2010] EWHC 2002 (Admin). The fifth appellant’s appeal arose from an Asylum and Immigration Tribunal decision. The conjoined appeals concerned whether the Secretary of State could defer removal decisions for a substantial period, and whether fairness and the statutory one-stop scheme required prompt or sequential decision-making.

1. Appeals allowed. Lord Justice Sedley, with Lord Justices Rimer and Sullivan agreeing, held that the Border Agency’s general practice of separating refusal-of-leave decisions from removal decisions by a frequently substantial period was contrary to the policy and objects of the legislation and unfair in the circumstances.
2. Rule 395C of the Immigration Rules requires relevant factors to be considered before a decision to remove under section 10. A favourable decision under the rule is not meaningfully outside the Immigration Rules merely because any consequential grant of leave may involve prerogative power. Arguments arising from the refusal of leave may be relevant to non-removal, and factors raised on an appeal against removal become known to the Secretary of State and may be relied upon.
3. The statutory scheme seeks, so far as practicable, to deal compendiously with issues concerning continued residence. Sections 3C of the Immigration Act 1971 and 47(1) of the Immigration Act 2006, together with the one-stop provisions of the Nationality, Immigration and Asylum Act 2002, show that refusal of leave should ordinarily be accompanied or promptly followed by consideration of removal.
4. The court declined to impose a universal rule requiring tandem decisions. A reasonable pause may be necessary where the refusal of leave creates an unexpected matter requiring explanation or excuse. That pause is distinct from unjustified delay: there is no legal justification for routinely placing removal on prolonged or indefinite hold. A modest and reasonable time limit for further representations may be included in a section 120 notice.
5. No justification for the substantial separation was advanced in these cases. Relief was therefore appropriate in the individual cases. The court emphasised that it should be cautious about orders requiring executive reorganisation or expenditure. Article 8 did not need separate determination once unlawfulness was established; Ms Motee’s Article 8 claim remained part of her unresolved case for non-removal.

1. Court of Appeal (Civil Division) — The conjoined appeals were allowed. Relief was limited to the individual cases, without imposing a universal requirement for tandem decisions or prescribing organisational changes.
2. Administrative Court — The first four appellants’ judicial review applications were dismissed: [2010] EWHC 2002 (Admin).
3. Asylum and Immigration Tribunal — The fifth appellant’s appeal had been dismissed; the judgment does not state a citation for that decision.