Daley- Murdock, R (on the application of) v Secretary of State for the Home Department

The statutory immigration scheme does not require the Secretary of State, when refusing an overstayer leave to remain, simultaneously to make an appealable removal decision. Parliament deliberately distinguished overstayers from applicants who still have leave.

The presence of children and the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 make timely decision-making relevant, but create no general requirement for simultaneous decisions. Each case is fact-sensitive. Article 8 does not require a different conclusion because judicial review remains available and any subsequent removal decision may be challenged on Convention grounds.

The appellant and her family entered the United Kingdom as visitors. Their leave expired in July 2002, but they remained and worked without leave. In 2008 she applied for leave to remain for herself and her dependants. The Secretary of State refused the application without making a removal decision.

Wyn Williams J, in [2010] EWHC 1488 (Admin), held that the Secretary of State's Article 8 assessment was irrational and ordered reconsideration. He otherwise dismissed the judicial review claim, including challenges to the absence of a simultaneous removal decision and the treatment of policy DP 5/96.

The appeal concerned whether the statutory scheme, fairness, rationality, section 55 duties or Article 8 required a simultaneous appealable removal decision, and whether deception connected with prolonged unlawful employment lawfully justified withholding the benefit of DP 5/96.

1. Appeal dismissed. Parliament did not intend an overstayer to have a right of appeal against a refusal of leave to remain. It would therefore contradict the policy and objects of the Nationality, Immigration and Asylum Act 2002 to require the Secretary of State to make a simultaneous removal decision merely to create such a right. This differed from Mirza and the conjoined appeals, where the applicants already possessed statutory rights of appeal against refusals to vary existing leave.

2. The statutory scheme distinguishes lawful residents from overstayers. It was rational for the Secretary of State to anticipate that a significant proportion of overstayers would leave voluntarily after refusal, making removal decisions unnecessary. Both principle and practice therefore supported the distinction.

3. Section 55 of the Borders, Citizenship and Immigration Act 2009 and the associated guidance made timely decision-making for children relevant. They did not impose a general duty to make refusal and removal decisions simultaneously. The inquiry was fact-sensitive, and delay might sometimes better serve a child's interests, for example by permitting completion of a school term or recovery from treatment.

4. Article 8 did not require simultaneous decisions. The appellant had successfully challenged the refusal's Article 8 reasoning by judicial review. If a removal decision were later made, she could appeal on the ground that removal would violate the family's Article 8 rights. The statutory process, viewed as a whole, therefore provided adequate protection.

5. The Secretary of State was entitled to find exceptional circumstances justifying denial of the benefit of policy DP 5/96. The appellant and her husband had practised deception connected with obtaining national insurance numbers and employment over several years. The court decided only the lawfulness of that conclusion, not its merits.

6. Without reaching a concluded view, Sullivan LJ considered it arguable that the decision letters had failed to treat the children's best interests as a primary consideration, as required by ZH (Tanzania). Any future removal decision would have to apply that requirement.

• Court of Appeal (Civil Division): The court unanimously dismissed the appeal and upheld the dismissal of the remaining judicial review grounds: [2011] EWCA Civ 161.
• High Court, Administrative Court: Wyn Williams J held the Article 8 assessment irrational, quashed the first decision letter to that extent and ordered reconsideration. He otherwise dismissed the judicial review claim: [2010] EWHC 1488 (Admin).