Immigration

Exceptional leave to remain - adjudicator's refusal to make recommendation for exceptional leave - not susceptible to judicial review and no right of appeal R v Immigration Appeal Tribunal and Another, Ex parte Khatib-Shahidi: CA (Kennedy, Ward and Mantell LJJ): 20 July 2000

The applicant, an Iranian, came to the United Kingdom in 1986 with leave to enter for one month to visit her mother and sisters.

Subsequently her leave was extended for study.

She graduated in 1994.

She developed myalgic encephalitis (ME) and applied for indefinite leave to remain, needing the support of her mother and sisters.

She could not meet the requirement for admission for settlement in r.6 of the Immigration Appeals (Procedure) Rules 1984, so sought exceptional leave to remain outside the immigration rules.

The Secretary of State for the Home Department concluded that there were no sufficient compassionate grounds to permit her to remain.

An adjudicator refused to make a recommendation that she be granted exceptional leave.

The Immigration Appeal Tribunal refused her leave to appeal from that decision.

The applicant appealed.

Frances Webber (instructed by Pullig & Co) for the applicant.

Pushpinder Saini (instructed by the Treasury Solicitor) for the Secretary of State.

Held, dismissing the appeal, that since s.19 of the Immigration Act 1971 contained no express power to make a recommendation to grant exceptional leave where an appeal from the Secretary of State was dismissed, an adjudicator could refuse to consider making a recommendation; that an adjudicator's consideration of whether to make a recommendation could not expand a right of appeal constrained by s.20 of the 1971 Act and therefore there was no right of appeal against a refusal to make a recommendation; and that, because the decision not to make a recommendation was not a final determination, it was not susceptible to judicial review.