This is a problem that has been addressed previously on the blog: what can be done when a person makes an immigration application but for technical legal reasons is not granted a right of appeal to the tribunal? See this previous post.
The problem has now been addressed in two linked cases in the Court of Appeal, R (on the application of Mirza & Ors) v Secretary of State for the Home Department  EWCA Civ 159 and R (on the application of Daley-Murdock) v Secretary of State for the Home Department  EWCA Civ 161.
In Mirza, the claimants had all made immigration applications while they still had current leave. They had not overstayed. UKBA had refused the applications but set no removal directions. The claimants were able to appeal but because of the absence of the decision to remove they were not able to rely on paragraph 395C of the Immigration Rules. In all these cases that was their best hope of success.
The Court holds that the failure to make a removal decision is unlawful in this context:
40. It is evident that each of these appellants is being denied a removal decision, following a legitimate refusal of leave to remain, as part of a generalised practice, either manifested in or deriving from the internal organisation of the Border Agency, of separating the two decisions by a frequently substantial period of time.
41. Such a practice is in my judgment contrary to the policy and objects of the legislation, which are, as nearly as can be done, to deal compendiously with all issues concerning the lawfulness of a person’s continued residence in the United Kingdom. A practice of deferral for a short period may meet a legitimate rationale of allowing or encouraging foreign nationals who no longer have leave to remain to depart voluntarily, but this cannot extend to a contravention of statutory policy or to the application of unfair pressure on individuals to forfeit what may be their legal rights.
43. There is no reason in the present appeals to depart from the proposition which was accepted in TE (Eritrea) that there may be cases in which segregation of the two decisions is nevertheless justified. But no such justification has been advanced in any of the present cases: they appear to fall into a gap which in law ought not, at least in such cases as these, to be there.
The Court declines to grant a general relief and declare that the practice is generally unlawful, so individual challenges based on the particular facts of each case may be necessary. This is perhaps good news for lawyers, but it is less good news for UKBA and the public.
Mirza is useful to those affected, but it does not solve the limbo problem. The claimants in that case already had a right of appeal, but not on the right grounds. In Daley-Murdock the Court considered the more common, pressing problem of failure to make a removal decision after an out of time application by an overstayer. This issue has been covered before on the blog.
To cut a long story short, the Court distinguishes between the position of a person who makes an in-time application (as in Mirza) and a person who makes an out-of-time application. The latter is held not to have an right to immediate removal decision that might generate a right of appeal. Instead, the Home Office is entitled to wait and see if the person makes a voluntary departure.
There are some shreds of silver lining, though. The Court is quite clear that there is no general obligation to make the two types of decision simultaneously, even in cases involving children. It is equally clear that individual assessment is necessary, though:
10. Mr de Mello submitted that in those cases, such as the present case, where the overstayer’s family includes children, the duty to have regard to the need to safeguard and protect the welfare of those children imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) when coupled with the Secretary of State’s Guidance issued for the purpose of subsection 55(4) meant that there was a need for the two decisions – refusal of leave and removal – to be taken at the same time. He referred us to paragraph 2.20 of the Guidance which advises that:
“2.20. There should also be recognition that children cannot put on hold their growth or personal development until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them.”
11. Mr Blundell accepted that the need to achieve timely decisions where children were involved would be a relevant factor when deciding whether, in any particular case, it would be unfair or irrational not to make a removal decision at the same time as the refusal of leave. However he submitted, correctly in my view, that each case would be fact sensitive. There might well be cases where it would not be in the child’s best interests to make a removal decision rather than, eg, waiting to see if the family left voluntarily after the end of the school term or year, or after the child had fully recovered from hospital treatment. In my judgment it is not possible to spell out of either section 55 or the Guidance issued thereunder a general obligation to make a simultaneous removal decision in every case where children are refused leave to remain.
Where does this leave overstayer applicants? It is a very difficult question to answer. As I understand it:
1. There is no general obligation to make an appealable immigration decision at the same time as a decision to refuse a human rights application.
2. There may be cases where the facts suggest that it would be unfair not to do so, however. Cases involving children might be one such category of case, where delay would be harmful, but even then it must be a fact-sensitive individual assessment of each case.
3. One should think very carefully indeed before embarking on an immediate application for judicial review of a failure to make an appealable immigration decision. There would have to be very good reasons as to why delay would prejudice the individuals affected.
4. However, once it becomes clear that the applicant is not going to make a voluntary departure, an application for judicial review might be more realistic. It is impossible to put forward a time period for this. Maybe 4-6 months? That is very much a guess, though, there is no authority on this yet. Writing to the Home Office to tell them that the applicant will not be making a voluntary departure is probably also a good idea.
5. It may also still be possible to secure a pragmatic agreement that a decision will be made within three months, in the way described earlier in this post. This is probably a better outcome than can be achieved through an application for judicial review anyway, and is potentially a lot easier and cheaper if it can somehow be achieved during pre-proceedings correspondence.
Zane Malik, Counsel in Mirza, appears to be doing sterling work and is one to watch out for.