Patel & Ors v Secretary of State for the Home Department

The statutory powers to serve a one-stop notice and to make a removal decision are discretionary. The word “may” in section 120 of the Nationality, Immigration and Asylum Act 2002 and section 47 of the Immigration, Asylum and Nationality Act 2006 does not ordinarily mean “must”.

A lawful refusal to vary leave does not become unlawful because the Secretary of State neither makes nor promptly contemplates a separate removal decision. The powers arise under separate provisions and generate separate rights of appeal. Public law and human rights standards nevertheless govern the exercise of each discretion and may, on particular facts, call for related decisions to be taken together or in close succession.

The appellants, Indian nationals comprising a husband, wife and their UK-born child, applied for further leave to remain after entering with time-limited leave. The Secretary of State refused the application without deciding whether to direct their removal. The First-tier Tribunal dismissed their appeal, and the Upper Tribunal dismissed a further appeal in [2011] UKUT 484 (IAC).

The appellants abandoned their substantive immigration and human rights grounds. Their sole contention was that the refusal of further leave was unlawful because it was not accompanied or promptly followed by a removal decision. The appeal therefore concerned whether section 47 of the Immigration, Asylum and Nationality Act 2006 or section 120 of the Nationality, Immigration and Asylum Act 2002 imposed such a duty and, if so, whether its breach invalidated the refusal of leave.

1. Appeal dismissed. The Court of Appeal unanimously held that the Secretary of State's otherwise lawful refusal to vary leave was not invalidated by her failure to make, or promptly contemplate, a removal decision. The Master of the Rolls gave the leading judgment. Stanley Burnton LJ gave concurring reasons, and Hallett LJ agreed with both judgments.

2. Section 120 of the Nationality, Immigration and Asylum Act 2002 and section 47 of the Immigration, Asylum and Nationality Act 2006 use the language of discretion. They permit the Secretary of State respectively to serve a one-stop notice and to decide upon removal. They do not ordinarily compel either step. The courts cannot convert “may” into “must” merely because coordinated decision-making could further fairness, efficiency or the policy favouring one-stop appeals.

3. The powers concerning leave and removal arise under separate statutory provisions. Section 82 of the 2002 Act also creates separate rights of appeal against decisions about leave and removal. Parliament had not made the validity of one decision dependent upon the exercise of the other power. A subsequent failure to decide upon removal therefore could not retrospectively invalidate a lawful refusal of leave. Such retrospective invalidation was unsupported by the legislation and would create uncertainty over what counted as a prompt decision or the decision-maker's contemporaneous contemplation.

4. Public law and human rights requirements still govern the exercise of both discretions. Those requirements may make it appropriate in many cases to decide upon removal at the same time as, or soon after, refusing further leave. Deferral may nevertheless be justified to encourage voluntary departure or to permit representations addressing an unanticipated reason for refusal.

5. The decisions in Mirza [2011] EWCA Civ 159 and Sapkota [2011] EWCA Civ 1320 were irreconcilable with the later decision in Lamichhane [2012] EWCA Civ 260. Applying the exception for conflicting Court of Appeal authorities, the court followed Lamichhane and declined to follow Mirza and Sapkota. The separate issue concerning whether the appellants could raise the point before the First-tier Tribunal did not require determination.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the Upper Tribunal's dismissal but adopted its own reasoning.
2. Upper Tribunal (Immigration and Asylum Chamber): Blake J and Upper Tribunal Judge Perkins dismissed the appeal in [2011] UKUT 484 (IAC) and granted permission to appeal.
3. First-tier Tribunal: Immigration Judge Brown dismissed the appeal against the Secretary of State's refusal of further leave to remain.