Gurbachan Singh, R (on the application of) v The Secretary of State for the Home Department

A refusal of leave to remain does not carry a right of appeal under section 82 where the applicant had no valid leave when applying. A request under the respondent’s removal-decision policy must be assessed by reference to the grounds and evidence actually supplied. The policy does not require an in-country appeal.

Certification under section 94 is not inconsistent merely because an earlier refusal, carrying no right of appeal, was not certified. Certification is lawful where the human-rights claim is in substance bound to fail. A deficiency in fuller reasoning is not material in that situation.

The applicant sought judicial review of the respondent’s refusal, dated 9 April 2014, to grant leave to remain. He contended that the respondent should then have made an appealable removal decision because he received support under section 21 of the National Assistance Act 1948.

Following a pre-action request, the respondent later refused and certified his asylum and human-rights claims on 16 October 2014. The resulting removal decision was appealable only from outside the United Kingdom. Permission was limited to the absence of an appealable decision in April 2014 and certification of the Article 8 claim.

The central issues were whether the removal-decision policy obliged the respondent to make an appealable decision, and whether certification of the Article 8 claim was lawful.

1. The application for judicial review was refused. The applicant had never held valid leave to remain. The refusal of his application therefore did not attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

2. The respondent’s policy on requests for removal decisions required a request in a pre-action letter to be assessed by reference to the stated ground and the evidence provided. The applicant’s letter sought a removal decision solely on the basis of exceptional and compelling circumstances. It did not rely on local-authority support under section 21 of the National Assistance Act 1948, and no evidence of such support was provided.

3. It was open to the respondent to conclude that the applicant’s age, ill health and length of residence did not amount to exceptional and compelling reasons for making a removal decision. The available evidence also entitled the respondent to conclude that section 21 support had ceased or was about to cease. The policy did not impose a duty to provide an in-country appeal, and there was no basis for supposing that an earlier removal decision would have produced one.

4. There was no inconsistency in not certifying the April 2014 refusal. That refusal carried no right of appeal, so the respondent did not need to consider whether the claim was clearly unfounded. The applicable certification guidance indicated that a claim should not be certified in that situation under section 94.

5. The October 2014 certification of the Article 8 claim was properly open to the respondent. The medical evidence did not arguably establish an Article 8 breach on return, particularly when the Article 3 certification was not challenged. In any event, where a claim is in substance bound to fail, an absence of fuller reasoning does not create an unlawful defect.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application against the respondent’s refusal of leave to remain and later certification decisions. The application was refused.
• Respondent’s decisions: Leave to remain was refused on 9 April 2014. The asylum and human-rights claims were refused and certified on 16 October 2014, with an out-of-country right of appeal.