It seems that the controversial jurisprudential saga of impenetrable jungle law has finally been settled. In unanimously dismissing these three appeals, the UK Supreme Court explained that the judiciary “must share some of the blame” (para 1). Lord Carnwath JSC also thought that the statutory language defied conventional analysis, was obscure, pointed in opposite directions and was faulty (para 35). Lord Mance JSC observed that the structure of appeals is about to be “reshaped” by the Immigration Bill and some of the Court’s conclusions will probably become “irrelevant” in the future (para 63).
The appellants were Patel (an Indian), Alam (a Bangladeshi) and Anwar (a Pakistani).
Patel entered the UK as a working holiday-maker with his dependant wife; they had a son in the UK and tried to extend their visas by relying on article 8 ECHR and paragraph 395C of the immigration rules and the First-tier Tribunal dismissed their appeals. Subsequently, the Upper Tribunal  UKUT 484 (IAC) and the Court of Appeal  EWCA Civ 741 dismissed their appeals which were predicated on the argument that the decision to refuse leave to remain was unlawful because there was a failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave.
Alam entered the UK as a Tier 4 student. Some years later he applied to renew his student visa which was refused for deficient documentation because his bank statements were more than a month old. In his First-tier Tribunal appeal he produced the required statements; these were precluded from consideration under section 85A (Matters to be considered: new evidence: exceptions) of the Nationality, Immigration and Asylum Act 2002. Alam’s appeal was allowed but later reversed by the Upper Tribunal because the immigration judge had erred in treating the new evidence as showing effective compliance with the rules for the purpose of article 8 ECHR: the balance had to be struck in the Home Office’s favour because Alam only had a limited private life of four years as a student in the UK and the integrity of the immigration rules needed to be maintained and so his removal in consequence of the refusal would be proportionate.
Anwar entered the UK as a student and a year later he sought to extend his stay and his Confirmation of Acceptance for Studies (CAS) assessed him by reference to an ACCA examination Financial Accounting (F3) which was not supplied with the application: the application was refused for that reason. Alam argued that he did supply the F3 document and the First-tier Tribunal allowed his appeal but the Upper Tribunal reversed that decision as it found that on a balance of probabilities the document was not provided as claimed (which later became common ground). Despite some initial reference to article 8 ECHR, no such point was pursued in the tribunals.
Heard together, Alam and Anwar’s appeals were dismissed by the Court of Appeal  EWCA Civ 960.
The parties agreed that the issues in the Patel case were whether (i) the SSHD was obliged to issue a removal decision simultaneously or immediately after refusing an application for variation of leave to remain (ii) the SSHD was obliged to issue a one-stop notice under section 120 (Requirement to state additional grounds for application) of the Nationality, Immigration and Asylum Act 2002 when refusing an application for variation of leave to remain and (iii) the SSHD’s refusal to vary leave to remain is unlawful if it is issued in the absence of a one-stop notice or decision to remove.
Earlier on its judgment the Supreme Court noted that the second Patel issue about section 120 did not arise on the facts of any of the three cases as a one-stop notice was served in all the cases and Lord Carnwath JSC observed at para 11 that it was questionable whether all the issues agreed between the parties did in fact arise.
In Alam and Anwar’s cases, the issues were whether (i) the majority took the correct decision in AS (Afghanistan) v SSHD  EWCA Civ 1076,  1 WLR 385 (ii) statements and evidence filed by the appellants to the First-tier Tribunal were “additional grounds” under section 120 which should have been considered despite the bar in section 85A of the 2002 Act and (iii) in considering the competing interests of balancing immigration control against the article 8 ECHR rights of someone who may be removed for failing to meet the immigration rules, the nature and degree of non-compliance with the immigration rules is significant or irrelevant as held in Miah v SSHD  EWCA Civ 261;  QB 35.
The Supreme Court
Overall the Court held as follows. In Patel: the SSHD does not owe a duty to issue removal directions when refusing leave to remain and the refusal decision is not invalidated because of the absence of removal directions. In Alam and Anwar: while the First-tier Tribunal was, by section 120, required to consider the fresh evidence filed the said evidence did not substantively enhance their cases pursuant to article 8 ECHR.
Lord Carnwath explained at para 25 that the only issue in Patel related to the refusal decision being taken in isolation from a decision to direct removal and, founded on Mirza v SSHD  Imm AR 484 and Sapkota v SSHD  Imm AR 254, the argument that the failure to issue removal directions was in itself unlawful and also invalidated the earlier refusal. The Supreme Court concurred with the Court of Appeal (Neuberger MR, Hallett and Stanley Burnton LJJ  EWCA Civ 741, see post here) for not following Mirza and Sapkota because, as expressed in section 10 (Removal of certain persons unlawfully in the United Kingdom) of the Immigration and Asylum Act 1999 and section 47 (Removal: persons with statutorily extended leave) of the Immigration, Asylum and Nationality Act 2006, the SSHD’s powers of removal were “just” powers and were not construable as obliging her to make a removal direction in individual cases let alone establishing a connection between a failure to do so and the validity of any previous immigration decision (para 27). As Burnton LJ had said, the statutory language was unequivocally discretionary and a duty could not be judicially imposed (para 27). Mirza and Sapkota were wrongly decided and to refuse leave to remain in isolation from a decision to issue removal directions did not invalidate the decision to refuse leave (para 30).
The Court meant no disrespect to the judges in those decisions but let it be known that it would not add anything further to the existing debate except that it agreed with Burnton LJ’s comments at para 73 in the Court of Appeal when he said that the statutory language was clearly discretionary and so for the Court to impose a duty would be tantamount to amending the legislation rather than interpreting it. In any event, enforcing removal was not only costly to the public purse but also caused personal hardship and indignity (para 29).
Any alternative argument was a misunderstanding of the Padfield principle – that discretionary powers conferred by statute must not be used in such a way as to thwart or run counter to the policy or objects of an Act of Parliament – and it was clear that the 2002 Act was in favour of one-stop appeals (para 28). As issues of hardship and indignity are involved in enforcing removal, in the first instance, by allowing overstayers to depart the UK of their own volition the Home Office did not thwart the policy of the Act as the great majority of them did in fact leave the UK voluntarily (para 29). In any event, not everyone claims outside the rules; many people were looking for a decision on the rules and people preferred to make a fresh application or depart voluntarily. Equally, rather than wait for a removal decision, the Upper Tribunal was able to address article 8 ECHR issues in appeals relating to refusals of leave to remain. This approach allowed an independent evaluation of a human rights claim without the need for someone to run the risk of breaking the law.
In Alam and Anwar the issue could be summarised as whether an indirect route – based on article 8 ECHR – could be found to achieve a favourable result based on two propositions about the scope and the merits of the appeals before the tribunal.
In respect of the first proposition, that the tribunal was obliged to consider the new evidence in that context, the Supreme Court preferred the majority’s approach in AS (Afghanistan) v SSHD  1 WLR 385 and held that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a one-stop notice, even if it is not directly related to the issues considered in the original decision. Lord Carnwath JSC expressed his preference for a broad approach because it was more consistent with the coherence of the 2002 Act, his view gained:
41. … some support from the scheme of section 3C, under which (as is common ground) the initial application for leave to remain, if made in time, can later be varied to include wholly unrelated grounds without turning it into a new application or prejudicing the temporary right to remain given by the section. Thus the identity of the application depends on the substance of what is applied for, rather than on the particular grounds or rules under which the application is initially made. The same approach can be applied to the decision on that application, the identity or “substance” of which in the context of an appeal is not dependent on the particular grounds first relied on.
Both Macdonald’s Immigration Law & Practice 8th ed (2010) para 19.22 – the tribunal as primary decision maker – and Immigration Directorate’s Instructions treat the issue in a similar fashion.
As regards the second proposition, which was about the materiality – to the human rights case – of evidence that the appellant could in fact have complied with the rules, even though he failed to do so. The Upper Tribunal considered Alam’s human rights case but it failed on its merits and there was no error in that decision. His presence in the UK as a student alone was insufficient “to add weight” to the possibility of favourable treatment outside the rules (para 59). In connection to the degree of failure on the immigration rules – the near-miss argument – the Court noted that although this idea had been given thought in R (Alvi) v SSHD  UKSC 33;  1 WLR 2208 and R (New College London Ltd) v SSHD  UKSC 51;  1 WLR 2358 the Court of Appeal had itself supported such an approach in Pankina v SSHD  EWCA Civ 719;  QB 376. Sedley LJ at paras 45 – 46 thought that giving regard and respect to ECHR rights was inescapable. A marginal or momentary shortfall might affect the consideration of proportionality under article 8 but that view did not affect the outcome of the cases before the Court of Appeal in Pankina. Other cases, a Court of Appeal case and an Admin Court decision, which did not refer to Pankina but still made similar points were appraised by the Supreme Court and it ended up favouring the alternative views expressed in Miah v SSHD  EWCA Civ 261;  QB 35. In that case, the Court of Appeal (Maurice Kay, Burnton and Lewison LJJ) rejected the argument that an inverse relationship (or a sliding scale or near-miss argument) exists between compliance with the immigration rules and the policy imperative that failed applicants should be removed.
Burnton LJ was aided by Lord Bingham’s comments in Huang v SSHD  2 AC 167 that for the immigration rules to be workable, coherent, fair, consistent and predictable, a line needed to be drawn somewhere. He drew on other authority – Mongoto v SSHD  EWCA Civ 751 and R (Rudi) v SSHD  EWCA Civ 1326 – where the near-miss principle was rejected. In the former case, Carnwath LJ (as he then was, para 28), considered the argument to be based on a “misconception” because “the law knows no ‘near-miss’ principle”. Therefore, in Miah Burnton LJ found it easy to follow this line of authority over Pankina and he expressed disagreement with Sedley LJ’s distinction between rules to which the near-miss principle did and did not apply. In his judgment, Burnton LJ (para 25) made the point that “a rule is a rule” and that if a bright line rule is construed in a near-miss applicant’s favour then the efficacy and predictability of the rules is undermined and so “there is no ‘near-miss’ principle applicable to the immigration rules” (para 26). This was also consistent with Huang and Carnwath JSC said this:
56. Although the context of the rules may be relevant to the consideration of proportionality, I agree with Burnton LJ that this cannot be equated with a formalised “near-miss” or “sliding scale” principle, as argued for by Mr Malik. That approach is unsupported by Strasbourg authority, or by a proper reading of Lord Bingham’s words. Mrs Huang’s case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8. Conversely, a near-miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit.
57. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State’s discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ’s call in Pankina for “common sense” in the application of the rules to graduates who have been studying in the UK for some years (see para 47 above). However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8.
The Immigration Bill
The cases mentioned in this post have caused a lot of intrigue but the Immigration Bill, which will reshape the structure of appeals, looks set to usher in a new era of decision making. The Home Office envisages:
Replacing separate powers to give removal decisions with a single power which allows us to remove individuals who require, but do not have, leave to remain in the UK
The legislation consolidates the powers to make a removal decision – in paragraphs 8 to 10 of Schedule 2 (Administrative Provisions as to control on entry etc) to the Immigration Act 1971, section 10 of the Immigration and Asylum Act 1999 and section 47 of the Immigration, Asylum and Nationality Act 2006 – into a single power to remove a person who requires leave to enter or remain in the UK but does not have it because they entered illegally and never had leave, overstayed or could be an EEA national subject to a deportation or exclusion order.
The Bill intends to streamline the existing system by making it more efficient. The Home Office claims that the changes will take migrants out of limbo and reduce red tape and bureaucracy. It also envisions introducing coherence and clarity in the present system which, owing to multiple decision points, is prone to delay because it allows people “multiple opportunities to bring challenges throughout the process”.
But ironically the controversial Bill is now under fire from the Conservative Party itself. A weird political standoff has recently arisen as a result of Nigel Mills’ amendment which seeks to extend transitional restrictions on Romanians and Bulgarians for another five years – an action that would not only incur fines for UK but also tarnish its international image. Theresa May’s plans to fast-track the Bill – which was introduced into the House of Commons on 10 October 2013 and was expected to receive royal assent in spring 2014 – may have been jeopardised by the amendment. Her bid to end the endless game of snakes and ladders may now be in doubt because the Bill was dropped from the Leader of the House, Andrew Lansley MP’s business statement.
Awale Olad observes that:
This could mean that once the transitional restrictions on Bulgarian and Romanians are lifted on 1 January 2014, the government could nullify the amendment and try and bring its backbenchers back into the fold.
Although the Government denies delaying the bill, it is possible senior government whips advised ministers to push back the bill and avoid a potentially embarrassing rebellion from a group of Conservative MPs ready to vote in favour of the amendment. It’s interesting that Labour’s position may have been to once again abstain from the bill, prompting the Conservative party to play for time against its own backbenches.
What is unclear about this issue is whether the Conservative backbenchers will actually vote against the Immigration Bill if Mills’ amendment is not debated and passed. If they follow through with the threat, and Labour once again abstains from the vote, this bill could be killed off permanently at Report Stage.
The judges have chosen to describe this area of immigration law as “an impenetrable jungle of intertwined statutory provisions and judicial decisions”. If the Bill does get killed off as suggested by Awale Olad then the Supreme Court’s decision is important as the provisions of the Bill will not be in force as originally planned.
Immigration law is notoriously difficult to enforce and the number of people in the UK without visas just keeps swelling; a lot of the times they remain undetected by the authorities. Like the judges’ view of the statutory provisions of the Immigration Acts, the practical aspects of detaining and removing the UK’s illegal immigrants are pretty demanding. From that perspective, perhaps more so that the provisions of the Immigration Acts, the expanse of the UK’s towns and cities really is like an impenetrable jungle.
With uncertainty surrounding the Bill it may well be that the days of jungle law are just beginning.