Javad Ahmadi v The Secretary of State for the Home Department

A removal decision under Immigration, Asylum and Nationality Act 2006, s 47, may be made only after written notice of the refusal to vary leave has been given. An application has not been decided for the purposes of statutory continuation of leave until such notice is given. A purported combined variation and removal notice is therefore incompatible with the legislation.

An invalid or absent s 47 removal decision does not, however, invariably make the refusal to vary leave unlawful. The material question is whether the decision-maker, and the tribunal on appeal, addressed the removal factors in paragraph 395C of the Immigration Rules.

The appellant, an Afghan national, appealed against the refusal to vary his discretionary leave. The Immigration Judge dismissed the appeal, rejecting the asylum, humanitarian protection, Article 3 and Article 8 claims. Those findings were not challenged.

The remaining issue concerned paragraph 395C of the Immigration Rules and a document purporting both to refuse variation of leave and to make a removal decision under s 47. An earlier Upper Tribunal determination had been set aside after the respondent disclosed the combined decision letter. The central questions were whether that s 47 decision was valid and, if not, whether the variation decision was nevertheless in accordance with the law.

1. Appeal dismissed. The Immigration Judge made no material error of law.
2. Section 47(1) of the Immigration, Asylum and Nationality Act 2006 applies only where leave has been extended by section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971. Under regulation 2 of the Immigration (Continuation of Leave) (Notices) Regulations 2006, an application for variation is not decided until written notice has been given. Accordingly, statutory extension under section 3C(2)(b) cannot arise before that notice.
3. The respondent could not validly make the s 47 removal decision in the same notice as the refusal to vary leave. The purported removal decision was made too soon and remained unmade. Once an appeal against the variation decision had been initiated, section 3C(2)(c), rather than section 3C(2)(b), applied; a s 47 decision could then not be made.
4. The invalidity of the purported removal decision did not invalidate the variation decision. Following Patel (consideration of Sapkota – unfairness) [2011] UKUT 484 (IAC), the decisive issue was whether the paragraph 395C removal factors had actually been addressed. They had been considered both by the respondent and by the Immigration Judge, who re-exercised the discretion. The appellant identified no flaw in that assessment.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the Immigration Judge’s determination.
• Asylum and Immigration Tribunal: the Immigration Judge dismissed the appeal against refusal to vary leave.