Patel v Secretary of State for the Home Department

The Supreme Court considered the duties of the Secretary of State and of the First-tier Tribunal on appeals under the Nationality, Immigration and Asylum Act 2002, focusing on the so-called one-stop procedures (section 120 and related provisions) and the effect of separating a refusal of variation of leave from any decision to direct removal.

The court held that the statutory powers to give removal directions (notably section 10 of the Immigration and Asylum Act 1999 and section 47 of the Immigration, Asylum and Nationality Act 2006) are discretionary and do not impose an obligation to issue a removal direction at the same time as, or immediately after, refusing an application to vary leave to remain; failure to issue such a direction does not invalidate the refusal of leave.

The court also addressed whether evidence demonstrating that an appellant could have complied with the Immigration Rules (a 'near-miss') must carry decisive weight in an article 8 proportionality assessment. It rejected any formalised 'near-miss' principle which would weaken immigration rules as a matter of law, while recognising that rule-context and family-value considerations remain relevant to the article 8 balance (citing Huang).

The appellants challenged refusals by the Secretary of State to vary leave to remain and related tribunal determinations. The consolidated appeals raised whether (i) the Secretary of State is obliged to issue removal directions or a one-stop notice contemporaneously with a refusal to vary leave; (ii) the First-tier Tribunal must consider additional grounds raised in response to a section 120 one-stop notice even where they were not the subject of the original decision; and (iii) whether evidence showing a claimant could have complied with the Immigration Rules (a 'near-miss') materially alters the proportionality assessment under article 8 of the European Convention on Human Rights.

Background and procedural history: The appeals arose from three separate appellant histories: the Patels (refusal of renewed leave; appeal dismissed below), Mr Alam (student immigration application refused for documentary non-compliance; new evidence produced to the tribunal but excluded by section 85A exception 2 so far as the Rules were concerned; human rights grounds considered and rejected by Upper Tribunal) and Mr Anwar (student application refused for lack of supporting document; fact-finding as to whether the document had been supplied was against him; no separate human rights ground pursued before tribunals). The matters had passed through the First-tier Tribunal, the Upper Tribunal and the Court of Appeal ([2012] EWCA Civ 741; [2012] EWCA Civ 960) before reaching this court.

Nature of claim / relief sought: The appellants sought declarations or orders that the Secretary of State’s procedures were unlawful: in Patel the primary contention was that refusal to vary leave without issuing a contemporaneous removal direction (or one-stop notice) rendered the refusal unlawful; in Alam and Anwar the contention concerned the scope of the tribunal’s duty under section 85(2) and whether new evidence excluded by section 85A could be relied upon indirectly via article 8.

Issues framed by the court:

• Whether an obligation exists on the Secretary of State to issue a removal decision or a section 120 notice contemporaneously with a refusal to vary leave;
• The proper construction of section 85(2) and section 85A(3)-(4) (the one-stop/exception 2 regime) and the scope of the tribunal’s duty to consider matters raised in a section 120 statement;
• The legal status of a ‘near-miss’ to the Immigration Rules in the article 8 proportionality balance.

Court’s reasoning and decision: On the Patel appeals the court emphasised that the statutory provisions conferring powers to give removal directions and to serve section 120 notices are discretionary in language and purpose; they form part of the Secretary of State’s enforcement armoury and cannot be read to impose a duty to make a removal direction in every case or to link failure to make such a direction to invalidity of a refusal to vary leave. The court declined to follow contrary Court of Appeal authorities (Mirza, Sapkota), concluding those were wrongly decided on this point.

On the Alam and Anwar appeals the court preferred the majority approach in AS (Afghanistan) that section 85(2) requires the tribunal to consider matters raised in response to a section 120 notice so long as they constitute a ground of appeal of a kind listed in section 84(1), even where not previously decided by the Secretary of State. However, the court rejected any formal legal ‘near-miss’ principle that would reduce the weight of immigration rules as a matter of law in article 8 proportionality: compliance shortfalls may be relevant contextually, but cannot substitute for an otherwise unsupported human rights claim; Miah and Huang provide the guiding approach.

The court dismissed all three appeals for the reasons above, endorsing that the tribunal’s proper role and the Secretary of State’s discretion should be read from the statutory text and scheme.

Appeals dismissed. The Supreme Court held that (1) the Secretary of State is not under a legal obligation to issue removal directions contemporaneously with a refusal to vary leave to remain and the failure to do so does not invalidate the refusal; (2) section 85(2) should be read broadly in line with the majority in AS (Afghanistan) so that matters raised under a section 120 one-stop notice which constitute grounds of appeal in section 84(1) must be considered by the tribunal; and (3) there is no general legal 'near-miss' principle converting marginal non-compliance with the Rules into a determinative article 8 right, although the Rules and their underlying family/private life considerations remain relevant in the proportionality assessment.

First-tier Tribunal: appeals dismissed. Upper Tribunal: issues reheard and determinations given (discussed in the judgment). Court of Appeal decisions considered: 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; consolidated appeals to the Court of Appeal recorded at [2012] EWCA Civ 741 and [2012] EWCA Civ 960. Final appeal to the Supreme Court, judgment given [2013] UKSC 72 on 20 November 2013.