RJ (India) v Secretary of State for the Home Department

Section 10 of the Immigration & Asylum Act 1999 distinguishes between a decision to remove a person and the removal directions implementing that decision. The Secretary of State may decide simultaneously to remove an overstayer and family members under section 10(1)(c). The principal subject’s removal decision need not precede the dependants’ decisions. Removal directions may also be issued at the same time, provided that the dependant’s actual removal takes place after directions have been given for the principal. The statutory appeal under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 lies against the decision to remove, not against hypothetical removal or the removal directions themselves.

The appellant, his wife and two daughters, all Indian citizens, appealed against decisions to remove them after an application for leave to remain outside the Immigration Rules on Article 8 grounds had been refused. The First-tier Tribunal dismissed the appeals, but its determination was accepted to contain errors requiring it to be set aside. The Upper Tribunal dismissed the appeals after permitting a new argument on the construction of section 10 of the Immigration & Asylum Act 1999.

The appellant argued that section 10(1)(c) required the removal decision concerning the principal overstayers to precede any decision concerning their children as family members. The central issues were the distinction between removal decisions and removal directions, the timing permitted by section 10(1)(c), and the scope of the appeal right under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002.

1. Appeal dismissed. The appellant’s construction of section 10(1)(c) of the Immigration & Asylum Act 1999 was misconceived.
2. Section 10 distinguishes between the decision that a person is to be removed and the removal directions given to agencies responsible for carrying out removal. Section 10(1)(c) does not prevent decisions to remove the principal subject and dependants from being made at the same time.
3. Section 10(1)(c) requires only that the dependant’s actual removal take place after directions have been given for the removal of the principal. It does not require removal directions for the principal and dependants to be issued sequentially. Directions may be given for all of them at the same time. Section 10(3) does not alter that conclusion.
4. The appeal right under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 is an appeal against the decision to remove. It does not extend to a hypothetical removal or operate as an alternative appeal against removal directions.
5. The language of section 3 and schedule 2 of the Immigration Act 1971 did not affect that construction. The court relied on the conceptual distinction recognised in MS (Palestinian Territories) [2010] 1 WLR 1639. It was unnecessary to determine the alternative argument that the appellant’s construction produced an absurdity.
6. Lord Justice Tomlinson and Sir David Keene agreed with Lord Justice Laws. Order: application refused.

• Court of Appeal (Civil Division): Appeal dismissed. [2012] EWCA Civ 1865
• Upper Tribunal (Immigration and Asylum Chamber): Appeals dismissed after the appellant was permitted to advance a new argument on the construction of section 10 of the Immigration & Asylum Act 1999.
• First-tier Tribunal: Appeals dismissed in a determination promulgated on 8 July 2011. The determination was accepted to be so affected by error that it required setting aside.