Appeal rights - refusal to vary leave to enter or remain
In a short ruling (SA (Section 82(2)(d): interpretation and effect) Pakistan [2007] UKAIT 00083), the Asylum and Immigration Tribunal (‘AIT’) has stated that a person whose application to vary their existing leave to enter or remain in the UK is refused has no right of appeal against that refusal if their existing leave continues beyond the date of decision.
Section 82 of the Nationality, Immigration and Asylum Act 2002 contains a list of the immigration decisions against which a person may appeal. Section 82(2)(d) of the Act includes the following type of decision:
“Refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain”
The AIT considered that this provision was “not happily worded”. In particular, its effect appeared to be negated by section 3C of the Immigration Act 1971, which automatically extends a person’s leave to enter or remain if their leave has expired whilst waiting for a decision. Leave is then further extended if an adverse decision is appealed against. The AIT was prepared to ignore the effect of section 3C for the purpose of interpreting section 82(2)(d) as the latter provision would otherwise make no sense. Therefore, it decided that a person whose application to vary their leave is refused after their leave has expired does have a right of appeal under section 82(2)(d).
However, the AIT concluded that if a person’s application to vary their leave is refused before their existing leave to enter or remain expires (as was the case with SA), then the only possible interpretation of section 82(2)(d) is that there is no right of appeal against the decision.
It should be noted that although section 82(1)(g) of the 2002 Act gives a person in this position would have a right of appeal against any subsequent decision to remove him or her from the UK under section 10 of the Immigration and Asylum Act 1999 - this appeal right could only be obtained by overstaying their existing leave, a criminal offence under section 24 of the 1971 Act, as removal directions could only be set after expiry of their leave. In any event, an appeal under section 82(1)(g) cannot be made while a person is in the United Kingdom (see section 92 of the 2002 Act) and would have to be pursued outside from another country. Moreover, as the appeal would be against the decision to remove, it may be difficult to raise issues relating to the earlier decision to refuse to vary leave.
This leaves open a number of questions. Firstly, if the AIT in SA (Pakistan) is right, does a person who is refused a variation during their existing leave have any remedy in the UK at all? In the absence of any right of appeal, they should be able to seek judicial review of the decision in the Administrative Court. However, as judicial review is a remedy of last resort, they would have to show that the out of country right of appeal against any future removal does not constitute an alternative remedy to judicial review. It is difficult to see how it could provide an alternative remedy when it could only be obtained by committing a criminal offence through overstaying. Judicial review would therefore be available.
Secondly, what happens if an applicant has also made an asylum or human rights claim (for instance, if they have family or private life rights which would be breached by their removal from the UK)? Does the applicant have to wait until a decision is made to set removal directions before they can appeal on these grounds? In JM [2006] EWCA Civ 1402, a case also concerning section 82(2)(d), the AIT had declined jurisdiction to deal with the appellant’s concurrent human rights claim on the basis that he was in no danger of imminent removal as no removal directions had been set. The Court of Appeal found that the case turned on the interpretation of section 84(1) of the 2002 Act, which sets out the permitted grounds of appeal against an immigration decision, including the following grounds:
“(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights…
“(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.”
The Court found that Parliament had intended to give a wide meaning to the words “in consequence of” in section 84(1)(g), and included removal as an indirect consequence of the refusal to vary leave.
In JM the appellant had received his adverse decision from the Home Office after his existing leave had expired, so there was no issue regarding whether there was an immigration decision against which the AIT could hear his appeal. The difficulty which arises from SA (Pakistan) is that the AIT has said that where a decision is made to refuse to vary leave before existing leave has expired, then that does not constitute an immigration decision within the meaning of section 82. On that basis, a distinction can be drawn between the circumstances in JM.
The Court of Appeal in JM gave powerful reasons why it was necessary to find that an appellant should be able to have his human rights addressed at the time of a refusal to vary his leave, not least of which was that it was “wrong in principle that the price of getting before an independent tribunal, for a judicial decision on a human rights claim should be the commission of a criminal offence and other associated legal prohibitions.” This objection would apply equally to an appeal against a refusal to vary leave made during the life of existing leave.
In the light of JM the AIT decision in SA (Pakistan) must, with respect, surely be wrong. It is respectfully suggested that the AIT should have interpreted the words “if the result of the refusal is that the person has no leave to enter or remain” widely, in the same way that the Court of Appeal interpreted the words “in consequence of” widely in JM. An indirect result of the refusal to vary leave is that the person has no leave to enter or remain once their leave expires. An additional consequence of this interpretation is that there would be no conflict with section 3C of the 1971 Act, a preferable result than simply ignoring the existence of the provision.
