Thapar v Secretary of State for the Home Department

At the permission stage, a proposed immigration ground is arguable where the Secretary of State may have applied the wrong version of published policy guidance. A request for an in-country right of appeal may arguably imply a request for the removal decision needed to create an appealable decision. Where a supplementary decision resulted from a factual misunderstanding, permission may be granted on the related ground without finally determining its merits.

The applicant challenged refusals of applications for leave to remain and sought judicial review. The Upper Tribunal refused permission on the papers and, after an oral renewal, refused permission to appeal. It treated Patel v Secretary of State for the Home Department [2013] UKSC 72 as establishing that a removal decision was not ordinarily required, and rejected the challenge concerning a supplementary decision.

On renewal before the Court of Appeal, the applicant relied principally on published policy guidance concerning exceptional cases in which a removal decision should be made if requested. The court also considered whether a supplementary decision had been generated under a misunderstanding. The central issue was whether either ground was sufficiently arguable to justify permission.

1. Ground 1. Permission to appeal was granted on the removal-decision ground. The Secretary of State had relied on a version of the Requests for Removal policy guidance promulgated in October 2014, although the relevant immigration decisions were dated 19 June 2014. The Secretary of State accepted that the earlier version did not contain the relied-on exclusion concerning persons already notified that they were liable to removal under section 10 of the Immigration Act 1999.
2. The applicant’s pre-action letter sought an in-country right of appeal. Although it did not expressly request a removal decision, it was arguable that the request necessarily implied such a request, because without a removal decision there would be no appealable decision. No other reason was advanced for excluding her from the relevant exception in the guidance.
3. Ground 2. Permission was also granted on the supplementary-decision ground. The Secretary of State accepted that the witness statements had accompanied the original applications and that the later decision treating them as further representations under paragraph 353 of the Immigration Rules was unnecessary. The court did not finally determine whether that error undermined the Upper Tribunal’s reasoning, but considered it appropriate to allow the ground to proceed.
4. Ground 3 and directions. The complaint concerning the opportunity to make submissions fell away because permission had now been granted. The appeal was directed to be listed before two Lord or Lady Justices, at least one with immigration or asylum expertise. The court invited consideration of an early appealable removal decision or an agreed compromise allowing the appeal, granting permission for judicial review and remitting the substantive application to the Upper Tribunal.

• Court of Appeal (Civil Division): Following refusal of permission on the papers, permission to appeal was granted on grounds concerning the need for a removal decision and an unnecessary supplementary decision. The matter was directed to be listed before two Lord or Lady Justices.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Clive Lane refused permission to apply for judicial review on the papers on 27 May 2015. Upper Tribunal Judge Goldstein refused permission after an oral renewal on 28 July 2015 and refused permission to appeal.