Sandeepkumar Manharbhai Patel v The Secretary of State for the Home Department

A failure formally to make a removal decision under section 47 does not invariably render a refusal to vary leave unlawful. The question is one of public law fairness. There is no unfair segregation where the application and decision have substantively addressed the compassionate and removal considerations, including paragraph 395C factors, and the applicant has had a fair opportunity to advance them.

In assessing a child’s position, the decision-maker must treat welfare as a primary consideration under Borders, Citizenship and Immigration Act 2009, section 55. An express reference to that duty is unnecessary if its substance has been considered. A short residence founded on a false representation of an intention to take only a working holiday cannot rationally carry weight as a compassionate reason to remain.

The appellants, an Indian couple and their UK-born child, appealed against the First-tier Tribunal’s dismissal of their appeals from the refusal of leave to remain outside the Immigration Rules and on human-rights grounds.

The Secretary of State’s refusal letter considered the family’s asserted private and family life, paragraph 395C factors, the child’s welfare, and stated that removal to India would follow if they did not leave voluntarily. It did not formally make a removal decision under section 47.

The appellants contended that the decision was unlawful because it failed properly to address section 55 and because, following Sapkota and KA (Pakistan) [2011] EWCA Civ 1320, the refusal and removal questions had been impermissibly segregated. They also challenged the Article 8 conclusion.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. The Secretary of State’s decision was lawful and the family had no claim to remain outside the Rules or under Article 8.

2. Sapkota and KA (Pakistan) [2011] EWCA Civ 1320 and Mirza [2011] EWCA Civ 159 concern the fair exercise of public-law powers. They do not create an inflexible requirement that section 47 powers must always be exercised with, or immediately after, a refusal to vary leave. Unfairness arises where the Secretary of State refuses to consider the wider case against intended removal and thereby requires a person to overstay before obtaining consideration of it.

3. There was no such segregation here. The appellants had advanced their case outside the Rules, expressly relying on paragraph 395C. The decision-maker addressed those factors, the intended removal, and the consequences for the whole family. The absence of a formally expressed section 47 decision did not affect either the reasoning or the appellants’ opportunity to present their case.

4. The Secretary of State had substantively considered the child’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009. The child’s interests were a primary, rather than paramount, consideration. Removal with both parents created no identified welfare risk. Nor did the Immigration Judge need expressly to cite section 55 where the substance of that consideration had been addressed.

5. The appellants’ two-year residence was short and was obtained after the first appellant falsely represented that he intended only a working holiday and would return to India. The claimed wish to remain and work in the United Kingdom could not rationally be treated as a compassionate factor. No compelling private or family-life consideration outweighed immigration control. Any failure expressly to mention paragraph 395C was therefore immaterial.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellants’ appeal and upheld the First-tier Tribunal’s dismissal of their appeals from the refusal to vary leave.
• First-tier Tribunal: on 13 July 2011, dismissed the appellants’ appeals against the refusal of leave to remain outside the Immigration Rules and on human-rights grounds.