Tanveer Ahmed Virk, R (on the application of) v The Secretary of State for the Home Department

A delay in considering further human-rights representations is not unlawful or irrational merely because it is regrettable. Its lawfulness depends on the period involved, the circumstances and any detriment to the applicant.

The Secretary of State is not required to make a removal decision simply because an overstayer requests one in order to obtain an in-country right of appeal. Where the material plainly does not bring the person within the published criteria for making such a decision, there is no duty to make a separate decision whether to issue it.

The applicant had overstayed following the expiry of his visit visa in 2007. His application for leave to remain was refused in September 2011. He requested a review and asked the Secretary of State to make a removal decision that would carry an in-country right of appeal.

In July 2013 he made further representations based principally on a diagnosis of thyroid cancer. He then brought judicial review proceedings, alleging unlawful delay and a failure to make an appealable removal decision. During the proceedings, the Secretary of State refused the further human-rights representations but did not make a removal decision.

The central issues were whether the delay was unlawful and whether the Secretary of State had to determine the request for an appealable removal decision.

1. The claim was dismissed. The applicant had not challenged the lawfulness of the September 2011 refusal itself. His later request for a review raised no new issue, and did not provide a meritorious basis on which to remain while awaiting a response.

2. The delay after the July 2013 further representations was not unreasonable, unlawful or irrational. The 14-week period before the judicial review claim could not reasonably be so characterised. Although the Secretary of State later failed to decide within the period indicated in her acknowledgement of service, the applicant showed no detriment from that delay.

3. The medical material did not establish a need for specialist, frequent or continuing treatment, apart from usual medication. The Tribunal also found that adequate treatment facilities were available in Pakistan and that the asserted psychological difficulties lacked medical support. The applicant could leave the United Kingdom and rejoin his wife and children.

4. The Secretary of State was under no duty to issue, or separately decide whether to issue, an appealable removal decision. Nothing in the material showed that the applicant fell within the published policy governing when such a decision should be made. A request for a removal decision does not require engagement where, on its face, the applicant plainly does not meet the policy criteria.

5. Permission to appeal to the Court of Appeal was refused because no arguable point of law capable of affecting the result arose.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review claim dismissed. Permission to appeal to the Court of Appeal was refused.
• Administrative decisions: The Secretary of State refused leave to remain in September 2011 and refused the applicant’s further human-rights representations in November 2014, without making a removal decision.