Qongwane & Ors v Secretary of State for the Home Department

Paragraph 353B of the Immigration Rules is a narrow safety valve concerning removal. It does not confer the underlying discretion not to remove, create a duty to review cases, or govern decisions to grant or refuse leave.

The discretion is outside the Rules. Its exercise cannot therefore be challenged on a statutory appeal as a discretion conferred by the Rules. Any duty to consider exceptional circumstances must arise from applicable published guidance and is ordinarily enforceable through judicial review.

Good character and compliance with immigration conditions create no presumption against removal. Migrants must identify the exceptional circumstances relied upon with specificity.

Four migrants challenged decisions that their removal from the United Kingdom remained appropriate after the Secretary of State had considered the factors in paragraph 353B of the Immigration Rules.

The Upper Tribunal dismissed the appeals of Ms Qongwane, Mr Patel and Mrs Khanum in [2013] UKUT 311 (IAC). Mr Singh separately sought judicial review after the Upper Tribunal refused his late application for permission to appeal. The Administrative Court refused permission because his application was late and without merit.

The central issues were whether paragraph 353B imposed a duty or conferred a discretion under the Rules; whether a tribunal could substitute its view of that discretion; and whether non-compliance rendered a removal decision unlawful under the statutory appeal provisions or article 8 of the Convention.

1. The appeals were dismissed. Paragraph 353B had been adequately considered in every case. No question therefore arose of the removal decisions being unlawful under article 8(2) or sections 84(1)(e) and 86(3)(a) of the Nationality, Immigration and Asylum Act 2002.

2. Paragraph 353B must be construed in its current wording and setting. It is not a successor to former paragraph 395C and cannot be interpreted by reference to that deleted provision. It operates only for migrants who have no right to remain, whose claims have been finally determined and whose removal may exceptionally be considered inappropriate. It is a narrow safety valve whose use will necessarily be rare.

3. The reference to establishing whether further submissions amount to a fresh claim means establishing that they do not. If a fresh claim is accepted, it must be considered and may attract statutory appeal rights. Paragraph 353B concerns removal alone. It does not concern the grant or refusal of leave. Applying Patel [2013] UKSC 72, failure to consider paragraph 353B does not invalidate a simultaneous refusal of leave.

4. Paragraph 353B neither confers the Secretary of State's discretion not to remove nor itself imposes a duty to conduct a review. The discretion exists outside the Rules. Mirza [2011] EWCA Civ 159, which concerned materially different paragraph 395C, did not support the contrary conclusion. Consequently, sections 84(1)(f) and 86(3)(b) did not permit the First-tier Tribunal to allow an appeal because it considered that discretion should have been exercised differently.

5. A duty may instead arise from the Secretary of State's Enforcement Instructions and Guidance. Failure to follow such a policy may make a resulting decision unlawful on judicial review. Any reasons required when applying paragraph 353B may be concise where the migrant has no right to remain and faces no real risk on return.

6. Underhill LJ added, with the agreement of the court, that the listed factors principally identify matters weighing against non-removal or qualifying matters said to favour it. Good character, absence of offending and compliance with conditions create no presumption against removal. A migrant seeking exceptional treatment must identify the relied-upon circumstances specifically.

7. Mr Singh's appeal also failed because his applications to the Upper Tribunal and Administrative Court were late without sufficient justification. His new contention that paragraph 353B was unlawfully vague was rejected: the paragraph was sufficiently clear and necessarily general.

• Court of Appeal (Civil Division): Dismissed all four appeals in [2014] EWCA Civ 957.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeals of Ms Qongwane, Mr Patel and Mrs Khanum in [2013] UKUT 311 (IAC). It separately refused to extend time for Mr Singh's application for permission to appeal and rejected his proposed grounds on their merits.
• Administrative Court: Refused Mr Singh permission to seek judicial review because his application was late and without merit.
• First-tier Tribunal: Dismissed each migrant's appeal against the relevant immigration decision.