Two sides of the same coin

Sanaz Saifolahi — 

Following on from the case of Ahmadi ( s. 47 decision: validity; Sapkota) [2012] UKUT 00147 (IAC)  the Upper Tribunal has (for now) resolved the perplexing issue of what to do when the Secretary of State combines a refusal to vary leave with a Section 47 removal.  This issue is thrashed out in the case of Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC).

The official head note in Adamally and Jaferi states:

When a removal decision purportedly under s 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave:

(i)             the s 47 decision is unlawful, but

(ii)           the decision refusing leave is a separate decision, that

(iii)          requires determination;

(iv)          s 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions into one appeal, but

(v)           s 86 of that Act allows and requires the determination to reflect differences in outcome.

In short, the case reiterates the approach taken in the case of Ahmadi, but finds that because the notice of decision combined both a refusal to vary leave to remain and a Section 47 removal, it is not enough for a Judge to simply allow the appeal and ‘remit’ the case back to the Secretary of State to make a fresh/proper decision.

The Upper Tribunal says:

18   “For the foregoing reasons this Tribunal will follow Ahmadi, and will take the view that a s 47 decision is unlawful if combined with a decision to refuse further leave.  Thus, it appears that, in a case where the refusal to extend leave and the decision purportedly under s 47 are served together, the latter is unlawful but the former is not rendered unlawful by having to stand alone if the latter drops.  Both decisions are appealable, and the question is what is to happen if they are appealed.   “

And:

11.”We accordingly must proceed on the basis that a decision refusing further leave may stand on its own: it is not rendered unlawful by being unaccompanied by a removal decision.  Nor, of course, can there be any suggestion that if there is a removal decision, the decisions that have been made are somehow combined into one decision.  They remain separate decisions, made under separate statutory powers to make decisions, and carrying separate rights of appeal under s 82(2). “

What does this mean in practice? If there is a notice of decision which combines both the refusal to vary leave to remain and the Section 47 removal, the Section 47 removal decision is unlawful but the substantive matters (refusal to vary leave) can and should be determined because both decisions are appealable.

Postscript by Colin:

What happens next? I acted in a case this week in one of those pesky urgent removal injunction applications (obtained on the papers, thankfully) and noticed that the First-tier Tribunal Judge had earlier found the s.47 removal decision to be invalid, more or less pre-emptively in line with this new case of Adamally and Jaferi. What, then, was the legal basis on which the Home Office was detaining and seeking to remove my client in this urgent case? No new removal decision complying with the Notices Regulations had been served, and if one had been then it would normally generate an in-country right of appeal, albeit on probably the same facts as had already been rejected by an earlier judge. As a test we attempted to lodge an appeal with the tribunal but the tribunal’s view was that the bare removal directions did not constitute a valid removal decision as such. Unless the UK Border Agency gets its act together, which is inherently improbable, then subsequent attempts to remove clients whose s.47 removal decisions have been struck out will be unlawful.

Sanaz Saifolahi

Sanaz Saifolahi

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2 responses to Two sides of the same coin

  1. Darren Stevenson

    yet more expensive litigation because of poorly drafted, unnecessarily complex law. I can only imagine the public cost that is involved in this constant check and balance process. fully expect a whole raft of decisions filtering through on appendix fm soon and in particular appendix fm-se

  2. Just wondered this applies to people given section 47. Can this also be used for people given section 10.?