The Secretary of State for the Home Department v Munira Quraish Sajad Hussain Adamally & Anor

A removal decision purportedly made under Immigration, Asylum and Nationality Act 2006, section 47, at the same time as a refusal to vary leave is unlawful. The refusal of leave remains a separate and potentially lawful immigration decision.

Under section 85(1) of the Nationality, Immigration and Asylum Act 2002, the two decisions may be comprised in one appeal. Section 86 nevertheless requires the Tribunal to determine the appeal in so far as it concerns each decision. It may therefore allow the appeal against the unlawful removal decision while determining, and allowing or dismissing, the appeal against refusal of leave on its merits.

The Secretary of State had, in each respondent's case, refused an in-time application for further leave and purported simultaneously to make a removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006.

The First-tier Tribunal held the section 47 decisions unlawful following Ahmadi v SSHD [2012] UKUT 147. It did not determine the merits of either refusal of leave. Instead, it purported to remit each matter to the Secretary of State to rectify the notices.

The Secretary of State appealed. The central issue was whether a single appeal encompassing the two decisions had to be allowed as a whole, or whether the Tribunal had to determine each included decision separately.

1. The Secretary of State's appeals were allowed. The First-tier Tribunal decisions and fee awards were set aside. Each case was remitted to the First-tier Tribunal for determination in accordance with the Upper Tribunal's directions.

2. A section 47 removal decision made concurrently with a refusal of further leave is unlawful. Section 3C of the Immigration Act 1971 extends leave up to the decision on the variation application, then through the period for bringing an appeal and any pending appeal. Section 47(1) permits the removal decision only during the post-decision appeal period. A decision contained in the same notice as the refusal is therefore made too early. The Tribunal followed Ahmadi v SSHD [2012] UKUT 147.

3. The unlawful removal decision does not invalidate the refusal of leave. They are separate decisions under separate statutory powers and carry separate appeal rights. Consistently with Patel and others v SSHD [2012] EWCA Civ 741, a refusal of further leave may stand alone and is not retrospectively unlawful because no lawful removal decision accompanied it.

4. Section 85(1) of the Nationality, Immigration and Asylum Act 2002 produces one appeal which includes appeals against both decisions. It does not merge the decisions. Sections 86(2), 86(3) and 86(5) require the Tribunal to determine the grounds relating to each included decision. The words “in so far as” permit, and in these circumstances require, an appeal to be allowed against the section 47 decision while being allowed or dismissed separately against the refusal of leave.

5. The Tribunal should determine the merits of the lawful refusal and declare the section 47 decision unlawful. It should not remit merely to enable the Secretary of State to cure the removal notice, nor express a view that a fresh removal decision ought to be made. Judge Wellesley-Cole and Judge Buckwell were directed to allow the appeals so far as they concerned section 47 and to determine the respective challenges to refusal of leave.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State's appeals were allowed. The First-tier Tribunal decisions were set aside and both cases were remitted.
• First-tier Tribunal: Each judge held the contemporaneous section 47 removal decision unlawful, but did not determine the appeal against refusal of leave and purported to remit the matter to the Secretary of State.