Sinia Castro v The Secretary of State for the Home Department

Under section 47 of the Nationality, Immigration and Asylum Act 2006, as amended, the requirements in section 47(1A)(a)(i) and (ii) qualify the application for variation of leave. They do not require the Secretary of State's decision to be made before the person's existing leave expires.

The amended power applies both where an in-time application is decided before the original leave expires and where leave continues under section 3C of the Immigration Act 1971. A notice stating that the Secretary of State has decided that a person should be removed is, in context, a valid future-facing removal decision. Where a full application for variation has been refused, the refusal reasons may also adequately explain the consequential removal decision.

The appellants, husband and wife and nationals of the Philippines, applied in time to vary their leave to remain. They relied on article 8 and Appendix FM. The Secretary of State refused the applications on 21 May 2013 and served notices refusing variation and stating that the appellants should be removed under section 47 of the Nationality, Immigration and Asylum Act 2006.

The First-tier Tribunal dismissed the appeals against refusal on their merits and also dismissed the section 47 appeals. No challenge was maintained to the merits of the refusal decisions. The appellants appealed to the Upper Tribunal, contending that the removal decisions did not comply with amended section 47 or the Immigration (Notices) Regulations 2003.

The central issues were the temporal scope of section 47(1A)(a), the effect of the notice wording, and whether separate removal reasons were required.

1. Appeals dismissed. The removal decisions were lawful and the First-tier Tribunal's dismissal of the section 47 appeals stood.

2. Section 47(1A)(a)(i) and (ii) identifies a decision on an application for variation of limited leave, where that application was made before leave expired. The grammatical structure, the comparison with paragraphs (b) and (c), and the legislative history showed that the timing condition did not qualify the Secretary of State's decision. To read it otherwise would leave outside the amended provision the very situation which the amendment was intended to address.

3. Consequently, section 47 applies where an in-time variation application is decided while leave is extended under section 3C of the Immigration Act 1971. It also applies where the decision is made before the original leave expires, although section 3C does not then operate. The amended provision is not drafted by reference to section 3C.

4. The words that the Secretary of State had decided that the appellants should be removed expressed an injunction for the future. In form and substance, they were a decision that the appellants were to be removed if and when their leave expired. The notice therefore met section 47(1).

5. Regulation 5(1)(a) of the Immigration (Notices) Regulations 2003 did not require additional, separate reasons in this case. The appellants had made their case fully in seeking variation. Once that application was refused, the refusal reasons, the application and the consequence of remaining without leave adequately explained removal. The notice also complied with regulation 5(1)(b), because it identified the Philippines as the destination.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellants' challenges to the lawfulness of the section 47 removal decisions.
• First-tier Tribunal: dismissed the appeals against refusal to vary leave on article 8 grounds and dismissed the associated section 47 appeals. The merits dismissal was not further challenged.