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

Section 3(2) of the Immigration Act 1971 requires parliamentary laying only for rules which set criteria that are or may be determinative of leave to enter or remain, including its duration and conditions. Guidance governing only the timing of a removal decision, after refusal of leave has been maintained, does not fall within that requirement. The inclusion of some removal-related provisions in the Immigration Rules does not alter the statutory question.

Executive guidance must be sufficiently clear and transparent. Guidance which identifies relevant factors and permits a removal decision for other exceptional and compelling reasons provides an adequate basis for the discretionary timing decision. It is not inconsistent with separate guidance governing the substantive appropriateness of removal.

Five linked appeals concerned former Home Office guidance, "Requests for removal decisions". It applied where an overstayer or illegal entrant had been refused leave without a right of appeal and asked the Secretary of State to make a removal decision, which at the material time would generate an appeal right.

Miss Oboh's judicial review claim was dismissed by Burnett J in the Administrative Court: [2014] EWHC 967 (Admin). The other appellants had been refused permission to apply for judicial review by the Upper Tribunal. The Court of Appeal granted permission on the common issues and determined the substantive claims.

The issues were whether the guidance had to be laid before Parliament under section 3(2) of the Immigration Act 1971, and whether it lacked certainty or transparency.

Disposition

1. The court dismissed Miss Oboh's appeal. It granted the other appellants permission to apply for judicial review, but dismissed their substantive claims under section 16(8) of the Tribunals, Courts and Enforcement Act 2007. Richards LJ gave the judgment; Lewison and McCombe LJJ agreed.

2. Section 3(2) of the Immigration Act 1971 concerns rules regulating entry into and stay in the United Kingdom. The statutory scheme distinguishes those matters from departure and removal. The guidance operated only after an application for leave had been refused and that refusal was maintained. Its material function was to govern the timing of a removal decision, not the substantive conditions for leave or a relaxation of them.

3. Applying R (Alvi), the requirement to lay rules applies to criteria which are or may determine an application for leave to enter or remain. The guidance contained no criterion which an applicant had to satisfy to obtain leave. It was therefore procedural guidance outside section 3(2). The presence of some deportation and removal provisions in the Immigration Rules was not determinative; those provisions could be linked to the grant, loss or status of leave, whereas the timing of a requested removal decision was not.

4. R (Munir) did not assist the appellants. Its discussion of the flexibility of concessionary policies concerned when requirements for leave may be relaxed. It did not qualify the Alvi test or apply to guidance with no bearing on leave.

5. The transparency challenge also failed. The removal-decision guidance and the Enforcement Instructions and Guidance addressed different questions: respectively, when to make a removal decision and whether removal was substantively appropriate. The stated factors, including other exceptional and compelling reasons, gave a sufficiently clear and transparent basis for the discretionary timing decision.

• Court of Appeal (Civil Division): The court dismissed Miss Oboh's appeal. It granted the other appellants permission to apply for judicial review but dismissed their substantive claims: [2015] EWCA Civ 514 .
• High Court, Administrative Court: Burnett J dismissed Miss Oboh's judicial review claim: [2014] EWHC 967 (Admin) .
• Upper Tribunal (Immigration and Asylum Chamber): In the other appellants' cases, permission to apply for judicial review was refused on the papers and the applications were marked totally without merit.