Abraham & Ors v Secretary of State for Home Department

A removal decision is unlawful where the decision-maker fails to undertake the structured assessment required by the applicable Immigration Rules and by the duty to safeguard and promote children’s welfare. Such a decision is invalid in its entirety and cannot be retrospectively cured by a later supplemental decision. An unlawful removal cannot be retrospectively validated by a later removal decision. The court cannot direct the executive to grant entry clearance or leave where those decisions involve statutory discretion, but may grant declarations requiring the unlawful history to be taken into account in future decision-making.

The claimants, a Nigerian family, challenged the Secretary of State’s failure to give effect to a First-tier Tribunal decision allowing their appeal to the extent that removal decisions were unlawful. The family had been removed to Nigeria after the Secretary of State failed to consider paragraph 395C of the Immigration Rules and section 55 of the Borders, Citizenship and Immigration Act 2009.

The First-tier Tribunal decision was unclear in some respects, and the Secretary of State later issued a purported supplemental decision and re-served removal documents. The central issues were the effect of the Tribunal’s decision, whether the later measures had cured the original unlawfulness, and whether the family was entitled to immediate entry clearance.

1. The removal decisions served on 11 March 2011 were unlawful. The Secretary of State had failed to conduct the structured assessment required by paragraph 395C of the Immigration Rules and section 55 of the Borders, Citizenship and Immigration Act 2009. In the case of the children, their best interests had to be considered separately and collectively, given primary consideration, and weighed against other relevant considerations.
2. The First-tier Tribunal had jurisdiction under section 85(1) of the Nationality, Immigration and Asylum Act 2002 to address the removal decisions. Its decision allowed the appeals because those decisions were not in accordance with the law and amounted to a direction under section 87(1) requiring the Secretary of State to treat them as unlawful. The Tribunal had not determined the first claimant’s appeal against the separate refusal decision.
3. The Tribunal’s finding that the removal decisions were unlawful set those decisions aside in their entirety. The decisions had no operative validity and could not be relied upon in any subsequent immigration decision. The Secretary of State’s December 2011 letter was therefore nugatory. It could not retrospectively supply considerations which should have formed part of the original decision-making process.
4. A removal decision must be made before removal and must concern a person who is still in the United Kingdom. The documents served in February 2012 did not constitute a valid immigration decision and could not retrospectively authorise the family’s earlier removal. Paragraph 395C could not be applied after its deletion from the Immigration Rules.
5. The family remained subject to lawful temporary admission. Their return would not be futile, because any fresh removal decision would have to be made lawfully after their return and would generate the appropriate appeal rights. However, the court could not direct the Secretary of State to grant entry clearance, leave to enter or leave to remain. It granted declarations concerning the legal position and permission to apply regarding compliance with them.

• First-tier Tribunal (Immigration and Asylum Chamber): on 19 July 2011, allowed the appeals to the extent that the removal decisions were wrong in law because paragraph 395C of the Immigration Rules and section 55 of the Borders, Citizenship and Immigration Act 2009 had not been considered.
• High Court (Administrative Court): declared the removal decisions unlawful, clarified the effect of the First-tier Tribunal decision, rejected the purported later decisions, and granted consequential declarations and permission to apply.