Patel and others v Secretary of State for the Home Department

A refusal to vary leave to remain is not unlawful merely because the Secretary of State does not simultaneously make a removal decision. The removal provisions confer powers rather than duties, and their incidental contribution to a one-stop appeal system cannot alter their statutory character.

In a Points Based System appeal, evidence excluded from consideration under the Immigration Rules may still be considered so far as it bears on a human rights ground. Article 8 contains no formal near-miss or sliding-scale principle. The rules remain relevant but are not determinative. Proximity to compliance cannot by itself strengthen an otherwise insubstantial private or family life claim, and article 8 is not a general power to dispense with the rules.

The conjoined appeals arose from refusals to vary limited leave to remain. The Patel family argued that the refusal was unlawful because it was not accompanied or promptly followed by a removal decision. Mr Alam and Mr Anwar had failed to supply documents required by the Points Based System when applying, although they produced the material before the tribunal. Section 85A of the Nationality, Immigration and Asylum Act 2002 prevented reliance on that material to establish compliance with the rules.

The Court of Appeal dismissed the Patel appeal in [2012] EWCA Civ 741 and dismissed the Alam and Anwar appeals together in [2012] EWCA Civ 960. The Supreme Court considered whether removal and refusal decisions had to be combined, the scope of a tribunal’s duty following a section 120 statement, and whether closeness to compliance with the rules could strengthen an article 8 proportionality claim.

1. All three appeals were dismissed unanimously. Lord Carnwath gave the principal judgment, with which Lord Kerr, Lord Reed and Lord Hughes agreed. Lord Mance also dismissed the appeals for Lord Carnwath’s reasons.

2. The powers to direct removal under section 10 of the Immigration and Asylum Act 1999 and section 47 of the Immigration, Asylum and Nationality Act 2006 were discretionary powers. They imposed no duty to issue removal directions with, or immediately after, a refusal to vary leave. Failure to exercise them did not invalidate the refusal. The one-stop objectives of the statutory scheme and any incidental enlargement of appeal rights could not convert discretionary language into a duty. The principle in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 did not justify rewriting the legislation. R (Mirza) v Secretary of State for the Home Department [2011] EWCA Civ 159 and Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320 were wrongly decided so far as they indicated otherwise.

3. On section 85(2) of the Nationality, Immigration and Asylum Act 2002, Lord Carnwath preferred the majority approach in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076. A tribunal may consider an additional ground raised in a section 120 statement even though the Secretary of State did not decide that ground, provided it challenges the same generic immigration decision. Lord Mance agreed, while clarifying that the appellant cannot substitute a different category of immigration decision under section 82(2). The Court’s treatment of this issue was expressly obiter because it could not affect either appeal.

4. Section 85A barred Mr Alam and Mr Anwar from using their later evidence to establish compliance with the Points Based System. It did not prevent consideration of that evidence so far as it related to a permitted human rights ground. Article 8 nevertheless contains no formal near-miss or sliding-scale principle. Failure under the rules begins rather than ends the proportionality inquiry, and the rules’ underlying values may be relevant. Mere proximity to compliance cannot supply substance to an otherwise weak human rights claim.

   Article 8 is not a general dispensing power. Education alone is not a protected right, and the merits of refusing leave outside the rules are not reviewable on appeal by reason of section 86(6). Mr Anwar had pursued no separate human rights ground. Mr Alam’s student residence provided little weight on his side of the proportionality balance, and the Upper Tribunal had made no legal error.

1. United Kingdom Supreme Court: All three appeals were dismissed unanimously. The Court upheld the decisions below.
2. Court of Appeal: The Patel appeal was dismissed in [2012] EWCA Civ 741. The Alam and Anwar appeals were heard together and dismissed in [2012] EWCA Civ 960.
3. Upper Tribunal: The Patel family’s challenge to the absence of a removal decision was rejected. Mr Anwar’s favourable First-tier Tribunal decision was set aside. Mr Alam’s article 8 appeal was dismissed after the Upper Tribunal held that his limited student private life did not outweigh immigration control.
4. First-tier Tribunal: The Patel family’s appeal was dismissed. Mr Anwar’s appeal and Mr Alam’s article 8 appeal were initially allowed.