Refusal but with no removal or appeal
There are many illegal immigrants who have come forward to the Home Office, made themselves known, made an application to remain in the UK and then been refused and politely asked to leave the country.
Nothing wrong with that, you might think.
There are in fact two very serious problems, though. The first is that the quality of initial decision making at the Home Office is so poor that even people with very strong cases are refused. I dealt with one case recently where the gentleman entered as a child, had been resident for 19 years, had done a difficult degree at a prestigious university, was employed in a very good job and had a child with whom he did not live but had regular contact and for whom he paid significant maintenance. I can all but guarantee that he will eventually be allowed to remain, but of course he was refused by the Home Office when he did the right thing and came forward to make an application.
Where there is a right of appeal, the success rate in 2009 for this category of appeal was 48%. The Home Office might as well save time and resources by sacking all the caseworkers and randomly sorting applications into two piles, one of which is then refused and the other allowed.
The second problem, though, is that there is often no right of appeal in order to put things right. Where an illegal immigrant comes forward, applies and is refused, for technical legal reasons many will not receive an ‘immigration decision’ as defined by section 82 of the Nationality, Immigration and Asylum Act 2002 and will therefore not be able to appeal the decision to the immigration tribunal. Instead, they are merely asked to leave, and no enforcement action is pursued against them. To put it another way, the Home Office refuses them but then does not remove them. They are left in limbo.
This odd behaviour by the Home Office has been going on for some time now and has been the subject of considerable litigation. The immigrant wants to get a final result and find out whether he or she can stay or has to leave. In cases such as Daley-Murdock and Mirza lawyers have attempted to argue that there is an obligation not to leave the applicant in legal limbo and to make joined up decisions. After all, it makes no sense to refuse someone and then not even try to remove them. What would The Daily Mail say if they found out? This is the test senior UKBA officials and Ministers seem to apply in their day-to-day decision making. Sense and the law are somewhat distant relatives, though (extended family members, perhaps? –ed.) and while the litigation continues up to the Court of Appeal in both those cases there is no guarantee it will succeed.
As an aside, I have to say that it is a funny old world where immigration lawyers are arguing in court on behalf of their clients against the Home Office for the Home Office to remove them. But there we go.
The impasse was sort-of broken in a case in which I acted last year, along with five other barristers: R (on the application of Bharadva) v Secretary of State for the Home Department  EWHC 3030 (Admin) (27 October 2010). The outcome was not due to fancy legal arguments, alas, but rather due to common sense on the part of the judge, Treasury Counsel, the Treasury Solicitor (an old colleague, I was astonished to see) and whoever at UKBA was giving instructions. UKBA agreed to make a decision to remove within three months and on that basis we were adjourned for three months. This now seems to be happening in other cases, at least under threat of litigation. I have had one other case where a similar agreement has been reached and have heard of other such cases.
However, it is unclear whether an application for judicial review actually has to be lodged before the Home Office will see sense in a particular case. One would hope that strongly worded pre action letters and threats of costs would be sufficient, but past experience suggests perhaps not.
If you have had experience of such cases, do share them through comments.