IN THE COURT OF APPEAL (CIVIL DIVISION)
Date of Hearing: 20/07/2011
Date of Ruling: 15/11/2011
LADY JUSTICE ARDENLORD JUSTICE JACKSONLORD JUSTICE AIKENS
(1) RAMESH SAPKOTA (2) KA (PAKISTAN)
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Zane Malik (instructed by Messrs Malik Law) for the Appellants
Miss Deok-Joo Rhee (instructed by Treasury Solicitors) for the Respondent
Hearing date: 20 July 2011
Lord Justice AIKENS :
1. These two cases raise common issues concerning the jurisdiction of tribunals and this court and the principles they should apply in cases where the Secretary of State ("SSHD") has refused an application of a foreign national to vary leave to remain in the UK but the SSHD has not, at the same time or promptly thereafter, given a direction for the removal of that person from the UK. In the case of Ramash Prasad Sapkota ("RS") Stanley Burnton LJ gave permission to appeal so that "the jurisdictional and procedural issues raised by Mirza, TE (Eritrea),  SA (Pakistan)  nbsp;…and AS (Afghanistan) 4] can be comprehensively considered by the Court". In the case of KA, Hallett LJ ordered that the application for permission to appeal should be heard by the full court at the same time as the appeal in RS, for similar reasons.
2. In both cases the question is: does a failure by the SSHD to make a prompt decision on removal after rejecting the application to vary leave to remain render that first decision "not in accordance with the law" within section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").
3. I am satisfied that permission to appeal in the case of KA should be granted. The two appeals can therefore be dealt with on the same footing.
A. The Facts and the proceedings so far: RS
4. RS is a citizen of Nepal. He was born on 22 November 1972. He arrived in the UK on 19 November 2000 as a student. He had leave to remain as a student from 1 November 2000 until 31 October 2001. He was subsequently granted successive extensions to remain, on the same basis, until 30 September 2008. During this time RS studied at the Boston College of London ("BCL"). That institution is accredited by the British Accreditation Council for Further and Higher Education. RS successfully completed various modules in Computer Literacy and Information Technology and Integrated Business Technology. He has undertaken other courses. None led to a degree. RS began his latest course during the period of his last extension of leave to remain. If successfully completed RS would obtain a BSc degree in Financial and Computer Management, which would be awarded by The Cyprus Institute of Marketing. RS has undertaken the second year of this three year degree course but he has not yet passed examinations towards the degree. RS has asserted that there are extenuating medical and family circumstances which account for this failure.
5. RS is married to Bijaya Laxmi Subedi, who works full time as a carer in a nursing home. RS contends that he has established a family and private life in the UK with his wife. Bijaya Laxmi Subedi has also applied to extend her leave to remain. It is agreed that her position depends on the outcome of RS's appeal.
6. On 26 September 2008 RS made a further application to extend his stay in the UK as a student. That was refused by the SSHD in a Notice of Immigration Decision dated 23 August 2009. The reason given was:
"In view of the fact that you have been studying in the United Kingdom for nine years below degree level (UK recognised degree), the Secretary of State is not satisfied that you intend to leave the United Kingdom at the end of your studies".
7. The Decision gave the usual information about "Rights of Appeal". It also contained the usual "One Stop Warning – Statement of Additional Grounds" pursuant to section 120 of the 2002 Act. Finally, the Decision stated, in the usual way, that RS no longer had the right to stay in the UK and that, unless, within the time limits set out, he informed the UK Border Agency of any reasons why he should be allowed to stay in the UK, he must leave as soon as possible. The Decision added that if RS did appeal, he had the right to stay in the UK until the appeal process was completed or he abandoned any appeal. The Decision Notice was not accompanied by any Removal Directions, nor was one issued subsequently. RS had not asked the SSHD to make removal directions in the event that she rejected his application to extend the leave to remain; nor did RS invite the SSHD to take account of all or any of the factors referred to in paragraph 395C of the Immigration Rules (set out in the appendix to this judgment). RS did not advance any further grounds pursuant to the "One Stop Warning" notice.
8. RS appealed this "immigration decision" to the First-Tier Tribunal (Immigration and Asylum Chamber) – the "FTT". Immigration Judge Digney dismissed the appeal in a decision promulgated on 26 October 2009. IJ Digney accepted that RS had been properly studying in accordance with the Immigration Rules. He held that the only issue was whether RS could prove, on a balance of probabilities, that he intended to leave the UK at the end of his studies, pursuant to paragraph 57(vi) of Part 3 of the Immigration Rules ("paragraph 57(vi)").  The judge found, at  of his decision, that RS "has comfortably settled here and I can see no reason to suppose that he has any intention of leaving this country".
9. RS appealed to the Upper Tribunal (Asylum and Immigration Chamber) – the "UT", after Mr Timothy Corner QC, sitting as a Deputy High Court Judge, had said, on a renewed application, that there should be reconsideration. The Deputy High Court Judge considered that there was no force in the first ground, viz. the paragraph 57(vi) point. However, counsel for RS, Mr Zane Malik, had introduced a new ground before Mr Corner. This concerned the fact that the SSHD had made a decision not to renew leave to stay but she had not, at the same time or promptly thereafter, given a Removal Direction; she had "segregated" the two decisions. The new ground was summarised at  of the subsequent determination of Senior Immigration Judge Moulden dated 24 August 2010 as whether:
"…the [SSHD's] segregation of the immigration decision under challenge from the decision as to the removal renders the immigration decision "not in accordance with the law" and therefore the appeal should have been allowed".
10. Senior Immigration Judge Moulden dismissed the appeal on the first ground, viz. whether RS intended to leave at the end of his studies, holding that the FTT had not erred in law:  of his determination and reasons. On the second ground, the judge concluded, at , that the UT did not have jurisdiction to entertain the issue, whilst accepting that RS had the possibility of making an application to the Administrative Court for judicial review of the matter. In doing so he said he was following the decision of the Court of Appeal in SA (Pakistan) v SSHD and rejecting an argument based on section 25 of the Tribunals, Courts and Enforcement Act 2007.
11. The judge did, however, set out his conclusions on the merits of the point. Mr Malik had argued that the SSHD's decision not to grant further leave to remain was "not in accordance with the law" within section 84(1)(e) of the 2002 Act, because (a) it was made in isolation from the decision to remove; (b) the SSHD had not invitedsubmissions from RS prior to the decision not to renew on why removal should not follow refusal to renew; (c) there was no good reason for not doing (a) and (b), so that "segregation" of the decision not to renew from a decision on removal was unfair to RS and so "not in accordance with the law".
12. Senior Immigration Judge Moulden considered this court's decision in TE (Eritrea) v SSHD  and the decision of Moses LJ (sitting at first instance) in Mirza v SSHD.  He rejected Mr Malik's arguments. He decided that he should follow Moses LJ's decision in Mirza. He therefore held, at , that the SSHD was entitled to make the immigration decision in isolation from any decision to remove RS and that there was no duty to invite submissions from RS prior to refusing the immigration application. Moreover, he held that this was not unfair to RS. The judge pointed out, at , that "the decision against which [RS] appealed was made only on the basis that he had not established an intention to depart at the end of his studies. What is now being argued as creating unfairness is his wish to remain indefinitely". He concluded that the SSHD's decision was "in accordance with the law" and that the FTT had made no error of law.