Leave to remain - Appeal - Claimants appealing
Patel and others v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lord Neuberger, Lady Justice Hallett and Lord Justice Stanley Burnton): 1 June 2012
The first claimant was granted leave to enter the UK, from India, on the basis that he was a working holidaymaker. The second claimant, his dependent wife, accompanied him. The third claimant, their child, was born in the UK. The claimants' application for further leave to remain was refused by the defendant secretary of state. They exhausted their appeal rights until being granted permission to appeal to the instant court.
They issue for determination was whether the secretary of state was obliged to consider whether or not to make a removal direction at the same time as, or very shortly after, a decision to refuse an application for further leave to remain (an extension application). Consideration was given to the Immigration Act 1971 (the 1971 act), the Immigration and Asylum Act 1999 (the 1999 act), the Nationality, Immigration and Asylum Act 2002 (the 2002 act) and the Immigration, Asylum and Nationality Act 2006 (the 2006 act). The appeal would be dismissed.
Nothing in the text of any of sections 3 and 8-11 of the 1971 act, section 10 of the 1999 act or section 47 of the 2006 act expressly, or impliedly, required decisions as to leave to be made together with the decision to give removal directions, or the decision on removal to be given within a short time of the decision as to leave. Where the secretary of state failed to decide whether to make a removal direction either at the same time as, or within a short time of, refusing an extension application, in a case where she ought to have done so (for public law or human rights reasons), that would not invalidate an otherwise unexceptionable decision to refuse the extension application (see , , , ,  of the judgment).
In the instant case, even if the secretary of state should have intended to issue, or should have issued, a removal direction in relation to the claimants promptly, and had not done so, that would not have invalidated her decision to refuse the extension application made by the claimants (see , , ,  of the judgment). R (on the application of Mirza) v Secretary of State for the Home Department  All ER (D) 245 (Feb) criticised; Sapkota v Secretary of State for the Home Department  All ER (D) 141 (Nov) criticised; Lamichhane v Secretary of State for the Home Department  All ER (D) 88 (Mar) followed. Decision of Upper Tribunal (Immigration and Asylum Chamber)  UKUT 00484 affirmed.
Zane Malik (instructed by Malik Law Chambers) for the claimants. Thomas Roe (instructed by the Treasury Solicitor) for the secretary of state.