The Court of Appeal (Lord Neuberger MR, Lady Hallett Vice President QBD and Stanley Burnton LJJ) has decided that the SSHD was not obliged to issue a removal notice at the same time or shortly after refusing variation of leave to remain. In doing so the court has expressed its preference for Lamichhane  EWCA Civ 260 over Mirza  EWCA Civ 159 and Sapkota  EWCA Civ 1320. The main question before the court was whether the SSHD’s refusal of an extension of leave to remain was unlawful because no removal directions were issued when the application was refused. From the SSHD’s perspective, it was logical to refuse an application for leave to remain “in isolation” from making a removal direction in the hope that people will leave voluntarily.
The appellants – Mr and Mrs Patel – entered the UK on a working holidaymaker visa which was granted on appeal only after assurances were given by their sponsor that they would return home after their two year working holiday. The couple arrived in the UK in March 2009. The following year their son Vansh was born here and in 2011 they applied for further leave to remain pursuant to article 8 of the ECHR, rule 395C (now deleted) and their circumstances. The application was refused by the SSHD and the First tier Tribunal and Upper Tribunal dismissed their appeals in July and December 2011 respectively.
The UT (President Blake, Judge Perkins, at ) found the submission that the appellants should be permitted to extend their stay in the UK beyond their working holiday to be “remarkable” because they obtained entry and residence on a false representation: namely that they would return to India at the end of their two year stay. Thus, clarifying that the SSHD and FTT had not erred in law, the UT dismissed the appeal but granted the appellants permission to appeal to the Court of Appeal.
(1) The main issue in the case was whether the appellants were right to argue that when refusing an application for extension of leave to remain, the SSHD was obliged to decide at the same time or very shortly afterwards to make a removal direction.
(2) Regardless of the answer to the main issue another question, namely whether the appellants were entitled to rely on the SSHD’s failure (to decide whether to make a removal direction) as a ground of appeal, arose.
The Court of Appeal
In a dense judgment, at  the court found finesse in Stanley Burnton LJ’s Lamichhane  analysis that Sedley LJ’s  approach in Mirza (that serving a one-stop notice “is not discretionary or elective”) amounted to “judicial legislation” because although service of a “one-stop notice” under section 120 (Requirement to state additional grounds for application) of the Nationality Immigration and Asylum Act 2002 furthered the efficient administration of justice, imposing a duty when Parliament had clearly not done so amounted to “doing violence to the statutory wording.”
Lord Neuberger MR, sized up the complicated statutory environment in this case from  to  of his judgment. His Lordship recalled the court’s concerns in Sapkota – that differences in opinion in this area were “perfectly possible” – but concluded that under the principle of stare decisis/precedent he could not “blithely ignore or overrule previous Court of Appeal decisions” by treating the link between refusing extension applications and making removal directions as “virgin territory” (at ).
The appellants argued that they were right on both points because in Mirza the court decided that apart from “very unusual circumstances” the legislative thrust was such that the SSHD must decide whether or not to make a removal direction at the same time as, or very shortly after, refusing an extension application. Moreover, the decision in Sapkota follows that approach and confirms that refusing an application without addressing the making of a removal direction was not in accordance with the law and was appealable to the First Tier Tribunal under section 84(1)(e) of the 2002 Act.
To the contrary, the SSHD’s case was that the underlying legislation – section 47 (Removal: persons with statutorily extended leave) of the Immigration Asylum and Nationality Act 2006 and section 120 of the 2002 Act – did no more than confer on her a right to (a) make a removal direction and (b) serve notice on someone making an extension application to elaborate all the points which could arise in connection to a (later) removal decision. Thus, in light of AS (Afghanistan)  EWCA Civ 1076 and Lamichhane, ordinarily there was no obligation on the SSHD to make a removal direction or serve such notice. Parallel arguments that the UT was right to distinguish Mirza and Sapkota and that the appellants were precluded from taking their points under section 88 (ineligibility) of the 2002 Act were also raised. The extension decision was thus lawful.
Lord Neuberger MR espoused a fourfold rationale in ruling in favour of the SSHD. Firstly, whilst it was the court’s objective to ensure that statutory discretion was exercised consistently with the policy of the relevant statutory regime, the argument that (save in exceptional circumstances) the SSHD was required in individual cases to serve both a one stop notice and make a removal direction went “much too far” (at ). Therefore, the submission that “may” in section 47(1) of the 2006 Act must mean “must” was rejected without hesitation (at ). On the one hand the SSHD had a clear interest in legislative provisions which limit appeals and expedite removal, however, on the other hand, the appellants did not “have any obvious interest in such provisions being implemented” (at ). Although the 2002 Act leant in favour of one-stop appeals, the issue of how far this legislation was inclined in favour of such appeals turned on the structure and language of the legislation (at ). The word “may” in section 120 conferred an unfettered discretion on the SSHD whether to serve a one-stop notice, and section 47(1) empowered, but did not require, a decision to be made about a removal direction while an appeal could be brought.
Secondly, the court observed that the SSHD must adhere to human rights and public law norms when exercising her powers under section 120 of the 2002 Act and section 47 of the 2006 Act. This meant that, in many cases, the SSHD should refuse the extension application and decide whether to issue removal directions at the same time or make the latter decision soon after refusing the extension application.
For the Court of Appeal a single compendious decision was desirable but as Sedley LJ himself accepted in Mirza, deferring making a removal decision was mutually beneficial as it saved the SSHD costs in enforcing removal and it allowed people to leave the UK in a more dignified and convenient manner. Moreover, enabling someone to make representations about an unanticipated reason in refusing an extension application before making removal directions was fair and the obvious way to familiarise that person with the reason was through the refusal of the extension application. At any rate, contemplating making removal directions prior to refusing an extension application was “odd” because if the application was granted then no question of removal could arise.
Thirdly, if the SSHD failed to decide whether to issue removal directions simultaneously or shortly after refusing an extension application, such failure could not “invalidate an otherwise unexceptionable decision to refuse the extension application”. Lord Neuberger MR, found it “intellectually unattractive and administratively inconvenient for an executive decision to be potentially retrospectively invalidated” because arguments about the meaning of “doubt”, “promptly” and “a short period” in particular cases were “inevitable” (at –).
Fourthly, it was clarified that in Mirza the court was “over-impressed” with the submission that the SSHD should deal “very promptly” with the question of removal directions because someone whose leave to remain had expired was committing a criminal offence by remaining in the UK. The truth was that in cases where an extension application was made after existing leave had expired, the applicant committed a criminal offence despite making the application because he or she did not enjoy any extension of statutory leave.
Thus, Lord Neuberger MR explained it as such:
57. In my judgment, it is. It appears to me that we are faced with irreconcilable decisions of this court, namely Mirza and Sapkota as against Lamichhane. If it had not been for the reasoning in Lamichhane, I may well, albeit with reluctance, have taken the view that, at this level, we would have been obliged to follow the reasoning in Mirza, as the court did in Sapkota; indeed, that view would have been rather reinforced by the very careful reasoning and conclusions contained in the judgment of Aikens LJ in Sapkota.
58. However, it seems to me clear that the reasoning in Lamichhane is irreconcilable with the two earlier decisions. Mr Malik’s case for the appellants is based, as already mentioned, on the proposition that ‘the expression “may” in section 47(1) of the 2006 Act must mean “must”‘. That can only be justified by the reasoning in Mirza, and it is that reasoning which is expressly rejected in Lamichhane.
59. In those circumstances, the highest that it can be put for the appellants is that we are free to choose between the two approaches – see Young v Bristol Aeroplane Co Ltd  KB 718, 725-6. On that basis, for the reasons which I have given in the preceding section of this judgment, I would follow Lamichhane rather than Mirza. In fact, there is a strong argument for saying that it would anyway be more appropriate to follow the later decision. In Minister of Pensions v Higham  2 KB 153, 168, Denning J referred to ‘the general rule that where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred, if it is reached after full consideration of the earlier decision’ – a principle applied by Nourse J in Colchester Estates (Cardiff) v Carlton plc  Ch 80, 85. Although that referred to first instance decisions, I consider that it also has force in relation to decisions of this court. The notion that we should reject the reasoning in Mirza in favour of that in Lamichhane is reinforced by the fact the earlier decision seems to be inconsistent with clear views unequivocally expressed in the previous decision of this court in AS (Afghanistan).
The court found it unnecessary to decide on the second issue. Moreover, Stanley Burnton LJ also highlighted the problem presented by Ahmadi  UKUT 147 (IAC) where the appellant had challenged the SSHD’s practice, following Mirza and Sapkota, to refuse to extend leave and issue removal directions in a single notice (see –). The UT’s determination in Ahmadi – which was promulgated after the parties’ submissions were made in the instant case – explained that a removal decision cannot be made until written notice of the decision to refuse to vary someone’s leave is given. To have both decisions in the same notice was “incompatible with the relevant legislation” because issuing removal directions (under section 47 of the 2002 Act) required time to run (under section 3C(2)(b) of the Immigration Act 1971) for the purposes of an appeal against a decision to refuse to extend/vary leave: such an appeal can only be brought once notice of decision to refuse to extend leave has been given.
Lord Neuberger will succeed Lord Phillips as President of the UK Supreme Court.