Secretary of State for the Home Department v Ahmadi

A power to vary leave to remain which must be exercised by written notice is exercised through that notice, not by an earlier uncommunicated decision. Under Immigration Act 1971 section 3C, an application for variation is not decided until the required notice has been given.

Accordingly, statutory leave has not yet been extended under section 3C(2)(b) when a combined notice purports both to refuse variation and to make a removal decision under section 47. The removal decision is invalid. Administrative inconvenience, apparent legislative purpose and parliamentary material cannot justify a different construction where the statutory language is unambiguous.

The Secretary of State served a notice dated 27 July 2009 which both refused Mr Ahmadi’s application to vary his leave to remain and purported to decide that he should be removed under section 47 of the Immigration, Asylum and Nationality Act 2006. The notice was not disclosed until after the First-tier Tribunal had dismissed his appeal.

The Upper Tribunal held that the removal decision was invalid, but dismissed the appeal as a whole: [2012] UKUT 00147 (IAC). The Secretary of State appealed that conclusion. Mr Ahmadi cross-appealed only as to the form of the order, accepting that the variation decision was lawful.

The central issue was whether section 47 permitted a removal decision to be made in the same notice as a decision refusing to vary leave.

1. The Secretary of State’s appeal was dismissed. Mr Ahmadi’s appeal was allowed to the limited extent of substituting an order which dismissed his appeal against the variation decision but allowed his appeal against the removal decision.

2. Under sections 3(3)(a) and 4(1) of the Immigration Act 1971, the Secretary of State’s power to vary leave is exercised by giving written notice to the affected person. Notice is not a later step following an already completed decision. It is the statutory means by which the power is exercised.

3. Regulation 2 of the Immigration (Continuance of Leave) (Notices) Regulations 2006 determines when an application for variation is decided for section 3C as a whole. There is therefore no decision on the application, and no appeal capable of being brought under section 82(1), until the required notice has been given. Leave is not extended under section 3C(2)(b) before that point.

4. Section 47(1) required leave already to have been extended under section 3C(2)(b) or section 3D(2)(a) before a removal decision could be made. A combined variation and removal notice was consequently invalid as to removal. The construction made section 47(1) of limited practical utility, but the clear statutory language admitted of no alternative construction.

5. Rafiq v Secretary of State for the Home Department [1998] Imm IR 193 supported the conclusion that communication was integral to the statutory decision-making process. R (Hashmi) v Secretary of State for the Home Department [2002] EWCA Civ 728 turned on its facts and established no relevant principle. Parliamentary material could not assist because there was no ambiguity in the governing provisions.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and varied the disposition so that the appeal against the variation decision was dismissed, while the appeal against the removal decision was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): held the section 47 removal decision invalid but otherwise dismissed the appeal: [2012] UKUT 00147 (IAC).

• First-tier Tribunal: dismissed the appeal against the variation decision and the purported removal decision.