Home Office guidance relating to requests for a removal decision
The Home Office has recently issued guidance to its caseworkers relating to requests for a removal decision to be made.
This guidance comes following a number of judgments of the Court of Appeal, including Mirza and Others v Secretary of State for the Home Department  EWCA Civ 159, Sapkota v Secretary of State for the Home Department  EWCA Civ 1320 and Lamichhane v Secretary of State for the Home Department  EWCA Civ 260. Following these judgments it is, for the time being at least, established that the Home Office is under no legal obligation to make a removal decision at the same time, or shortly after, a decision to refuse to vary leave to remain is made.
This means that, for those who make applications to the Home Office when they do not have valid leave to remain, unless a decision to remove is also made, the refusal to grant leave to remain will not attract a right of appeal to the First-tier Tribunal. This is because this is not an 'immigration decision' within the meaning of section 82(2) of the Nationality, Immigration and Asylum Act 2002. It is the Home Office's removal decision which generates the right of appeal; section 82(2)(g) and (h).
Since the Court of Appeal has held that the Home Office is under no legal duty to make a combined refusal of leave and removal decision at the same time, or shortly thereafter, an unsuccessful applicant will need to wait until a separate removal decision is made before a right of appeal to the Tribunal is generated. This process could take a number of weeks, months or even years. During this time, the individual will be left in a precarious position, with no right to remain, no right to work and will be committing a criminal offence by remaining in the UK without leave.
It is possible for an individual in this situation to send a formal letter before claim (or Pre-action Protocol letter) inviting the Home Office to make a removal decision against them. Should they fail to do so, then an application for permission to apply for judicial review may, in some circumstances, be made challenging their failure to do so.
The Home Office has issued guidance to its caseworkers regarding requests for removal decisions and how they should be processed. It is stated that this guidance will only be applied in the following circumstances:
•An 'out of time' application for leave to remain has been refused (i.e. where the application is made at a time when the applicant has no existing leave to remain); and
•A removal decision was not made when the application for leave to remain was refused;
•The applicant has not left the UK voluntarily; and
•The applicant has requested in a formal letter before claim that a removal decision should be made.
Criteria for making a removal decision
The Home Office guidance states that a removal decision will only be made in the following cases:
•The refused application included a dependent child aged under 18 who has resided in the UK for at least three years;
•The applicant has a dependent child aged under 18 who is a British citizen;
•The applicant is being supported by the Home Office, e.g. NASS supported, or is able to provide evidence of being supported by their local authority under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989;
•There are other exceptional and compelling reasons to make a removal decision at that time.
The guidance does not expand upon 'exceptional and compelling reasons' within the guidance but this could well encompass, for example, cases which involve medical treatment raising issues under Article 3 or 8 of the European Convention on Human Rights, the age of the applicant, the applicant's particular vulnerability or other similar reasons. However, the guidance does confirm that full consideration must be given to the need to promote the welfare of children in the UK, giving effect to the Home Office's obligations under section 55 of the Borders, Citizenship and Immigration Act 2009.
The Home Office Response
Following receipt of the letter before claim a Home Office caseworker will review the refused application for leave to remain, together with any further information or evidence and consider whether the refusal decision should be maintained.
It is therefore essential that the letter before claim provides as much information as possible and any additional supporting evidence is provided at this stage. In the event that the caseworker decides that the previous decision was incorrect, then a new decision will be made. This could result in the grant of leave to remain, or a new refusal decision but on different grounds.
If the refusal decision is maintained then the caseworker will need to consider whether the criteria to make a removal decision are met.
If the criteria are satisfied then the Home Office will write to the individual to confirm this and a removal decision will be made within three months. If not, then the Home Office will write to confirm this, but the individual will have to either wait for the Home Office to make a removal decision of their own volition or to leave the UK voluntarily.
If a removal decision is made
Once the Home Office serve their removal decision then this will generate, in most cases, an in-country right of appeal. Strict time limits are imposed for submitting an appeal to the Tribunal and the relevant date should be carefully noted. In most circumstances, the applicant has 10 working days from the date he or she is deemed to have received the removal decision to lodge an appeal with the Tribunal.
It is therefore of the utmost importance that having received a removal decision the appeal is lodged in time. Unless the Tribunal agrees to accept the appeal out of time, and in the absence of very good reasons they are unlikely to do so, the failure to submit an appeal in good time will have significant consequences.
Should you wish to discuss the possibility of requesting a removal decision from the Home Office or if you would like assistance with drafting a letter before claim to request a removal decision to be made in order to generate a right of appeal then please contact our immigration barristers in Covent Garden on 0203 617 9173 or email firstname.lastname@example.org