Siddique, R (on the application of) v Secretary of State for the Home Department

Under the pre-6 April 2015 appeal scheme, an overstayer was not entitled to demand a removal decision merely because removal had become unlikely or because a removal decision would create an appeal right. Removal powers were discretionary enforcement powers, not statutory duties. The Secretary of State could apply a lawful policy, consider operational requirements and refuse a request where there were no exceptional and compelling reasons. Unwillingness to leave voluntarily was not exceptional and compelling by itself. Age, health, family circumstances and a desire for certainty were relevant matters, but did not require a removal decision where the Secretary of State had rationally assessed them and provided sufficient reasons.

The appellant, a Pakistani citizen, had entered the United Kingdom as a visitor and remained after successive applications for leave to remain were refused. He challenged the Secretary of State’s refusal to make a removal decision, arguing that this would have enabled an in-country appeal against the refusal of further leave. His case relied on his age, health, family circumstances, immigration history and unwillingness to leave voluntarily.

Permission to apply for judicial review was refused by a deputy High Court judge and subsequently by Upper Tribunal Judge Allen. The central issues were whether the Secretary of State was required by the relevant guidance or the pre-amendment Nationality, Immigration and Asylum Act 2002 scheme to make a removal decision, and whether refusal was irrational or inadequately reasoned.

1. Appeal dismissed. Lady Justice Black found no basis to interfere with Upper Tribunal Judge Allen’s refusal of permission to apply for judicial review. Lady Justice King agreed.
2. Statutory scheme. The inclusion of a removal decision among appealable immigration decisions under the pre-amendment Nationality, Immigration and Asylum Act 2002 did not confer a right on an overstayer to require such a decision. It meant that a person who had been made subject to a removal decision could appeal. It did not show that Parliament intended a removal decision to be made whenever voluntary departure became unlikely.
3. Nature of the power. The reasoning in Patel and others v Secretary of State for the Home Department [2013] UKSC 72 ([2014] AC 651) established that the powers under section 10 of the Immigration and Asylum Act 1999, section 47(1) of the Immigration, Asylum and Nationality Act 2006 and section 120 of the 2002 Act were enforcement powers, not duties to act in every case. Any additional protection to an appellant was incidental. The discretion had to be exercised lawfully, including with regard to relevant policy.
4. Guidance and rationality. The policy required a removal decision where one of its criteria was met, including other exceptional and compelling reasons. Unwillingness to depart voluntarily was not exceptional by itself. Operational considerations, including the orderly handling of large numbers of overstayers, could justify refusing to move an individual ahead of others. The appellant’s age, health, family circumstances and need for certainty did not compel a different conclusion.
5. Reasons. Although no contemporaneous reply had been sent to the appellant’s solicitors, the Summary Grounds of Defence, read with the earlier decision letters and immigration findings, sufficiently explained why the circumstances were not considered exceptional or compelling. The appeal was dismissed.

1. Court of Appeal (Civil Division). The appeal against the Upper Tribunal’s refusal of permission to apply for judicial review was dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber). On 7 May 2014, Upper Tribunal Judge Allen refused permission to apply for judicial review, finding no arguable irrationality in the refusal to make a removal decision.
3. High Court. On 23 October 2013, Mr Steven Kovats QC, sitting as a deputy High Court judge, refused permission on paper.