Ali, R (on the Application of) v The Secretary of State for the Home Department

A section 10 removal decision under the Immigration and Asylum Act 1999 invalidates existing leave, including leave continued by section 3C of the Immigration Act 1971. A subsequent purported refusal to vary that leave is a nullity because there is no leave left to vary.

The statutory out-of-country appeal route must ordinarily be respected. Judicial review remains available in truly special or exceptional cases, particularly where there is an arguable abuse of power in choosing the removal route to stifle an in-country appeal. A disputed allegation of deception, without more, is generally for the statutory appeal tribunal.

The claimant, a Pakistani national with section 3C leave while awaiting determination of a variation application, challenged removal under section 10(1)(b) of the Immigration and Asylum Act 1999, a purported refusal to vary his leave, and detention.

The Secretary of State had concluded that the claimant obtained leave using deception in connection with an ETS English-language test. The removal decision was served first, followed two minutes later by the refusal decision. The central issues were the legal effect of that sequence, the existence of an in-country right of appeal, whether the refusal decision was legally operative, and whether the Administrative Court should determine the merits despite the out-of-country statutory appeal route.

1. The claim was dismissed. The removal decision was made when notified and therefore preceded the refusal decision, despite the refusal letter having been drafted earlier. The court relied on SSHD v Ahmadi [2013] EWCA Civ 512.
2. Section 3C leave is a statutory extension of the original leave, not a new species of leave. The court followed QI (Pakistan) v SSHD [2011] EWCA Civ 614. Accordingly, section 10(8) invalidated the claimant’s existing leave when the removal decision was notified.
3. After that invalidation, the only statutory appeal was the out-of-country appeal against the section 10 removal decision. The in-country appeal route relating to refusal to vary leave did not survive. The ostensible refusal to vary was a nullity because there was no leave remaining to vary. The court applied the reasoning in R (Lim) v SSHD [2007] EWCA Civ 773 and agreed with the closely analogous analysis in R (Shah) v SSHD [2014] EWHC 3301 (Admin).
4. The High Court’s supervisory jurisdiction is not removed by an alternative statutory appeal. However, consistent with Khawaja [1984] AC 74, R (Lim) v SSHD [2007] EWCA Civ 773 and R (RK (Nepal)) v SSHD [2009] EWCA Civ 359, it should be exercised only in special or exceptional circumstances. A compelling case of abuse of power in selecting section 10 enforcement to prevent an in-country appeal could qualify, as indicated in R (Anwar & Adjo) v SSHD [2010] EWCA Civ 1275.
5. This was not such a case. The Secretary of State had not used section 10 merely to stifle an appeal. The evidence was accepted as sufficient, under the Enforcement Instructions and Guidance, to justify the removal decision. The factual dispute about whether a proxy test-taker had been used was suitable for the First-tier Tribunal, not judicial review. The court therefore declined to determine the merits of the deception allegation or the detention issue.

The judgment was a first-instance decision. The court refused permission to appeal, directing any application to the Court of Appeal.