Melanie Salinas Vidales v The Secretary of State for the Home Department

An overstayer has no general entitlement to an appealable removal decision when an application for leave to remain is refused. Immigration and Asylum Act 1999 section 10 confers a discretionary removal power; it does not impose a duty to exercise it in a particular case.

Where a request is made under the Secretary of State’s removal-decision guidance, the welfare and best interests of a child must be considered. A decision not to make removal directions is lawful where those matters and the asserted exceptional circumstances have been rationally assessed. A child’s unwillingness to leave voluntarily does not, without more, make the case exceptional or compelling.

The applicant, a Chilean child, entered the United Kingdom as a visitor and subsequently overstayed. Her applications for leave to remain on private and family life grounds were refused. The Secretary of State reconsidered the applications, including the applicant’s best interests, but maintained the refusals and declined to make removal directions.

Permission for judicial review was granted solely on whether the Secretary of State was obliged to issue a removal decision under Immigration and Asylum Act 1999 section 10. The applicant contended that a removal decision was required to provide certainty and an in-country right of appeal. She also relied on her welfare, the asserted absence of suitable care abroad, and delay.

1. The judicial-review application was dismissed. The applicant was an overstayer when she applied for leave to remain. There was no obligation upon the Secretary of State to make an appealable removal decision in relation to her. That proposition was established by Daley-Murdock v SSHD [2011] EWCA Civ 161 and approved in Patel and Others [2013] UKSC 72.

2. The statutory removal power under Immigration and Asylum Act 1999 section 10 is discretionary. The fact that refusal of leave does not itself generate a right of appeal for an overstayer did not require the Secretary of State to create one by issuing removal directions.

3. The Secretary of State’s guidance required consideration of the need to promote the welfare of children when deciding whether to accept a request for a removal decision. The decision letter of 14 August 2014 showed that the applicant’s best interests, her statement, and her aunt’s statement had been considered. The Secretary of State was entitled to find that the allegations, even if accepted, did not establish exceptional or compelling reasons for removal directions.

4. The applicant was not left in legal limbo merely because no removal decision was made. The Secretary of State had rationally concluded that voluntary departure was in her best interests and that the evidence did not justify exceptional treatment. That conclusion was within the range of reasonable responses.

5. An asserted refusal to leave voluntarily did not itself make the applicant exceptional. Oboh and Patel [2014] EWHC 967 (Admin) rejected that construction of the guidance. The delay argument based on Khan [2012] EWHC 707 (Admin) also failed: the circumstances and concession in that case concerned long-standing overstayers and were materially different.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to apply for judicial review was granted on the sole issue whether the Secretary of State was obliged to make a removal decision under Immigration and Asylum Act 1999 section 10. The application was dismissed.