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Segregation of immigration decisions

Segregation of immigration decisions

In a dense judgment that more than once has caused me to question my will to live the Court of Appeal has held that it is unlawful for the Secretary of State to separate a decision to refuse to extend leave from a decision to remove. The case is Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320. This ‘segregation’ of decisions, as it is referred to in the judgment, is unlawful because it effectively deprives a person of the right to rely on paragraph 395C of the rules. Such segregation is contrary to the one-stop philosophy of appeals.

At this point I pause to wonder why on earth the Home Office thought it was a good idea to separate the two decisions, which would lead to two separate appeals or legal challenges and make final resolution and perhaps removal a lot more difficult. As with JM (Liberia), Daley-Murdock, Mirza and many other earlier cases, this rather looks like another example of the Home Office needing saving from itself.

The Court also holds that the immigration tribunal has jurisdiction to decide this issue under the ‘otherwise not in accordance with the law’ ground of appeal. This is welcome news for appellants, who would otherwise have to engage in lengthy and costly judicial review proceedings. Immigration judges tend to be very nervous about public law arguments and reluctant to exercise their jurisdictional muscles, so this is perhaps less welcome news to them.

The outcome for one of the appellants was that their appeal was allowed to the extent that it was remitted to the Home Office for a decision to remove to be made in order to enable reliance on paragraph 395C: back to square one, basically. The other appellant lost on a narrow jurisdictional point.

Hats off to Zane Malik for managing to persuade the Court it was not bound by SA (Pakistan) v Secretary of State for the Home Department [2010] INLR 523 (yet another of Zane’s cases) and for successfully arguing a somewhat complex issue.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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