Personal Immigration

Secretary of State for the Home Department v Ahmadi [2013] EWCA Civ 512 - case summary

The Court of Appeal heard the Secretary of State’s appeal against the determination of the Upper Tribunal in Ahmadi (s47 decision: validity; Sapkota) [2012] UKUT 147 (IAC).

The facts of Ahmadi were not contentious and may be briefly summarised. On 27 July 2009 the Secretary of State issued a Notice of Immigration Decision refusing Mr Ahmadi’s application to vary his leave to remain and at the same time a decision was taken to remove him from the UK by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (the ‘2006 Act’).

It was contended that the Secretary of State could not lawfully refuse an application for a variation of leave and at the same time make a decision to remove under section 47(1) of the 2006 Act. This is because section 47(1) states that ‘where a person’s leave to enter or remain in the United Kingdom is extended by section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971 (extension pending appeal), the Secretary of State may decide that the person is to be removed from the United Kingdom…’.

The Upper Tribunal accepted that submission ‘without any enthusiasm’. Whilst the Secretary of State’s policy of giving a combined decision as to leave and removal was understandable, they cannot lawfully be made at the same time within the current statutory regime.  

The Secretary of State appealed to the Court of Appeal on three grounds;

  1. The Upper Tribunal erred in its construction of section 47 of the 2006 Act in the light of the Immigration (Continuation of Leave) (Notices) Regulations 2006 (the ‘2006 Regulations’),
  2. If the 2006 Regulations were relevant, then the Upper Tribunal erred in adopting an interpretation which meant that Parliament, in enacting section 47, had legislated in vain, a result which could have been avoided by adopting the Secretary of State’s construction of section 47; and
  3. That the Upper Tribunal erred in adopting an interpretation of s47 which that the Upper Tribunal’s construction was erroneous as it defeated the statutory purpose of that provision and that, following Pepper (Inspector of Taxes) v Hart [1993] AC 593, recourse to Hansard was justified in order to establish Parliament’s intention.

The Court of Appeal dismissed the Secretary of State’s appeal on all grounds.

The Court explained that section 3 of the Immigration Act 1971 confers a power to the Secretary of State to grant or vary leave to remain. Section 4(1) of the same Act provides that the power shall be exercised by giving notice in writing to the person concerned of the decision. The Court found that this provision is consistent with Regulation 2 of the Immigration (Continuance of Leave) (Notices) Regulations 2006 (made under section 3C(6) of the 1971 Act) which states ‘for the purpose of section 3C…an application for variation of leave is decided…(b)when notice of the decision has been given in accordance with section 4(1) of the Immigration Act 1971’. 

The Court accepted that the 2006 Regulations make it clear that there is no decision on the application for variation for the purpose of section 3C(2)(b) until notice of the decision has been given in writing. Therefore it would only be possible for the Secretary of State to make a decision to remove under section 47(1) after the notice of decision had been given in writing.

In relation to the second ground of appeal, the Court of Appeal acknowledged that, if the Secretary of State’s interpretation of section 47 is not accepted then the exercise of those powers would be ‘administratively inconvenient’. This is because a removal decision can only be taken whilst a person’s leave to remain is extended by section 3C(2)(b) of the 1971 Act, which is the 10 day period when an appeal against the refusal decision may be brought which provides the Secretary of State with a very small window within which to make a removal decision. The Court explained at paragraph 27:

The decision to remove under section 47(1) may not be made until leave to enter or remain has been extended by section 3C(2)(b), but may not be made once an appeal has been brought and is pending: see section 3C(2)(c). Although notice of a variation decision will be deemed to have been served on the second working day after posting (see paragraph 12 above), the recipient may be able to prove either that he received the notice the day after posting, and promptly appealed, thereby preventing service of a removal notice under section 47(1), or that he did not receive the notice until, say, three days after it was posted, in which case a removal decision made by the Secretary of State on the second day would be premature. On any basis, the 10 day window of opportunity under section 3C(1)(b) is a very narrow one, and the Secretary of State cannot be sure either when it commences – because service on the second day is deemed only if the contrary is not proved – or when it ends – because the appellant's notice of appeal is filed with the First-tier Tribunal, which serves a copy on the Secretary of State as soon as reasonably practicable thereafter 

The Court held that ultimately the remedy lies in the hands of Parliament. In this regard, section 51 of the Crime and Courts Act 2013 substitutes a new version of s47 which received Royal Assent on 25 April 2013.

The Court of Appeal rejected the Secretary of State’s final ground of appeal. The Court agreed that the intention behind the enactment of section 47 is clear. However, the difficulty was not upon the wording of section 47 itself, but when leave to remain is extended by section 3C(2)(b) or 3D(2)(a). Whilst Hansard may in limited circumstances be an aid to interpretation if there is an ambiguity in an enactment, there could be no ambiguity in this case since the legislative provisions are clear; an appeal can only be brought under section 82(1) when notice of decision has been given in writing in accordance with the 2006 Regulations.

In those circumstances, the Secretary of State’s appeal was dismissed.

The Court of Appeal’s judgment continues to call into doubt the lawfulness of the Secretary of State making a combined variation and removal decision at the same time under the present wording of section 47. Until section 47 is amended, removal decisions taken in this manner will continue to be unlawful.

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