Rahman v Secretary of State for the Home Department

An unlawful removal decision made under section 47 of the Immigration, Asylum and Nationality Act 2006 does not invalidate a lawful decision, notified at the same time, refusing to vary leave to remain. The two decisions are separate and carry independent rights of appeal. Sections 85 and 86 of the Nationality, Immigration and Asylum Act 2002 permit one appeal to produce different outcomes for each decision.

Under the points-based system, procedural fairness does not ordinarily require the Secretary of State to invite an applicant to correct a deficient Confirmation of Acceptance for Studies. Where the decision-maker relies only on the application and applies the Immigration Rules, responsibility for supplying a compliant confirmation rests with the applicant.

The appellant, a Bangladeshi national with leave as a Tier 4 student, applied to extend his leave. The Secretary of State simultaneously refused that application and decided to remove him under section 47 of the Immigration, Asylum and Nationality Act 2006.

The First-tier Tribunal held the removal decision unlawful and allowed the appeal without separately determining the refusal to vary leave. The Upper Tribunal set that decision aside, held the variation decision lawful and dismissed the appeal. The appellant appealed to the Court of Appeal.

The principal issues were whether the unlawful removal decision invalidated the concurrently notified variation decision, and whether fairness required the Secretary of State to permit correction of a Confirmation of Acceptance for Studies which lacked the confirmation of academic progress required by the Immigration Rules.

1. Appeal dismissed. The unlawful section 47 removal decision did not invalidate the refusal to vary leave. Under section 82 of the Nationality, Immigration and Asylum Act 2002, refusal to vary leave and removal under section 47 of the Immigration, Asylum and Nationality Act 2006 were separate immigration decisions carrying independent rights of appeal.

2. Section 85(1) promoted a one-stop appeal by treating an appeal against one appealable immigration decision as including an appeal against another. It did not make the decisions interdependent. The words “in so far as” in section 86(3) and (5) required a differential determination where appropriate. A tribunal could allow the appeal against an unlawful removal decision while dismissing the appeal against a lawful refusal to vary leave.

3. Concurrency did not supply a principle by which the unlawful consequential removal decision could vitiate the otherwise lawful variation decision. The reasons for refusing variation were independent of the proposed removal. The court applied the reasoning in Patel and endorsed the Upper Tribunal's reasoning in Adamally and Jaferi.

4. The appellant was not entitled to points under paragraph 245ZX(c) and Appendix A of the Immigration Rules. His Confirmation of Acceptance for Studies lacked the sponsor's confirmation that the proposed course represented academic progress from previous study, as paragraph 120A(a) required.

5. Fairness did not require the Secretary of State to invite the appellant to remedy that deficiency before deciding the application. Unlike Naved, the Secretary of State had neither obtained nor relied upon undisclosed additional information. She simply applied the Immigration Rules to the material supplied. The applicant bore responsibility for ensuring that the application included a compliant confirmation. Any error by the sponsor was a matter between sponsor and applicant.

6. The Upper Tribunal ought strictly to have allowed the appeal against the unlawful section 47 removal decision while dismissing the appeal against the variation decision. Subject to regularising that technical point in the order, the Court of Appeal dismissed the appeal unanimously.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously, subject to considering an order which allowed the appeal against the unlawful section 47 removal decision while dismissing the appeal against the variation decision: [2014] EWCA Civ 11.
2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal's decision for error of law, remade the decision, found the refusal to vary leave lawful and dismissed the appeal in its entirety.
3. First-tier Tribunal: Held the section 47 removal decision unlawful and allowed the appeal without separately determining the challenge to the refusal to vary leave.