Aysha Khanum v The Secretary of State for the Home Department

Paragraph 353B of the Immigration Rules HC 395 does not replace former paragraph 395C. It concerns exceptional circumstances after further submissions have been considered, or in a case with exhausted appeal rights which the Secretary of State chooses to review.

Where there are no outstanding further submissions and appeal rights are exhausted, there is no duty to undertake a paragraph 353B review. Whether to conduct such a review is an internal and wholly discretionary matter for the Secretary of State. A refusal to exercise that discretion is not an immigration decision and is outside the statutory appeal system. It cannot found either a complaint that a removal decision is otherwise not in accordance with the law or a contention that a discretion under the Rules should have been exercised differently.

Four principal appellants, all overstayers, appealed against removal decisions made by the Secretary of State. Their appeals to the First-tier Tribunal were dismissed. The Upper Tribunal granted permission on common issues concerning paragraph 353B of the Immigration Rules HC 395.

The appellants contended that paragraph 353B required consideration before removal, that the First-tier Tribunal could substitute its own exercise of the purported discretion, and that common-law unlawfulness necessarily rendered an interference incompatible with Article 8. The central issue was the scope and appellate consequences of paragraph 353B.

1. All appeals were dismissed. Paragraph 353B was not the successor to, or replacement for, former paragraph 395C. The two provisions had different purposes. Paragraph 395C required consideration of a broad range of factors before a removal decision. Paragraph 353B instead concerns a narrower assessment of exceptional circumstances which might mean that removal is no longer appropriate.
2. Paragraph 353B operates in two situations: following consideration of further submissions under paragraph 353; or where there are no outstanding further submissions, appeal rights have been exhausted, and the case is subject to a review. In the latter situation, “appeal rights have been exhausted” means that the person has no further right of appeal to the Tribunal.
3. In the exhausted-appeal-rights situation, a review is neither a formal process nor an entitlement. The Secretary of State has an entirely discretionary choice whether to undertake it. If a review is undertaken and produces a refusal to find exceptional circumstances, it is an internal decision. It is not an immigration decision under section 82(2) of the Nationality, Immigration and Asylum Act 2002 and does not enter the statutory appeals system.
4. Accordingly, the Secretary of State was under no obligation to consider paragraph 353B before deciding to remove these overstayers. Consideration of its factors in some decision letters did not create an appealable discretion under the Rules. The appellants could not contend under section 84(1)(e) that the removal decisions were otherwise not in accordance with the law, or under section 84(1)(f) that the discretion should have been exercised differently.
5. The proposed Article 8 issue was academic in light of those conclusions and was not determined. No material error of law was shown in any First-tier Tribunal decision.

• Upper Tribunal (Immigration and Asylum Chamber): Appeals against the First-tier Tribunal decisions were dismissed.
• First-tier Tribunal: Each appellant's appeal against a removal decision as an overstayer was dismissed.