Oboh & Ors, R (on the application of) v Secretary of State for the Home Department

Guidance about when to make a removal decision is not a rule regulating entry into or lawful stay for the purposes of section 3(2) of the Immigration Act 1971. It therefore need not be laid before Parliament. The statutory duty concerns requirements which a migrant must satisfy as a condition of being granted leave, and provisions governing the period or conditions of that leave. It does not extend to the mechanics or timing of removal. A policy may lawfully prioritise removal decisions requested by persons who satisfy defined criteria, including child-welfare, public-funding, or exceptional and compelling circumstances.

Two linked judicial review claims challenged Home Office guidance entitled “Requests for removal decisions”. The guidance applied where an out-of-time application for leave to remain had been refused without a right of appeal, no removal decision had been served, the person had not left voluntarily, and a removal decision had been requested by pre-action correspondence.

The claimants argued that the guidance had to be laid before Parliament under section 3(2) of the Immigration Act 1971, was insufficiently certain and transparent, and was inconsistent with the policy and objects of section 10 of the Immigration and Asylum Act 1999. The central issues were whether the guidance regulated entry or stay, whether its criteria were legally objectionable, and whether its prioritisation scheme was irrational.

The claims were dismissed. The guidance was concerned with the timing of a removal decision, not the merits of the refused application or the substance of any later removal decision.

1. Parliamentary scrutiny. Section 3(2) of the Immigration Act 1971 requires rules of practice concerning the grant of leave, including requirements which must be satisfied as a condition of leave and provisions concerning its period or conditions. “Stay” in that context means lawful stay pursuant to those rules. Sections 1(4) and 3(2) do not refer to departure or removal. Guidance governing the mechanics or timing of removal therefore falls outside the laying requirement.
2. The approach in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208, applied in R (New London College Ltd) v Secretary of State for the Home Department [2013] 1 WLR 2358, was not qualified by R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192. The flexibility discussed in Munir concerned an exceptional policy about granting leave. The present guidance did not concern leave.
3. Certainty and transparency. The phrase “exceptional and compelling reasons” was not unlawfully vague in this context. The guidance dealt with when a removal decision should be made, whereas enforcement instructions concerned the substance of the removal decision. Those were distinct matters.
4. Rationality. Section 10 of the Immigration and Asylum Act 1999 confers a broad discretionary removal power. It was rational to prioritise requests from persons falling within specified categories. The additional arguments that every person refusing to leave voluntarily was necessarily exceptional, and that the responses to the pre-action letters were insufficiently prompt, were also rejected or left without a basis for relief.

There was no substance in the pleaded or ancillary grounds.