Failure to issue a removal decision for overstayers is not contrary to legislation

Failure to issue a removal decision for overstayers is not contrary to legislation

Daley- Murdock, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 161 (23 February 2011)

This Court of Appeal case was heard on 23rd February 2011. The appellant is a Jamaican national who arrived in the UK with her daughter on 15th September 2001. Her husband entered the UK the following day. They were all granted leave to enter until 14th October 2001. This was later extended until 30th July 2002. The appellant and her family subsequently became overstayers in the UK. The appellant later gave birth to her son in the UK in 2004. No steps were taken to regularise their stay until October 2008 when they applied for leave to remain. Their application was refused by the respondents (home office) in July 2009 on the basis that they did not meet the requirements under DP 5/96 and that removal would not infringe their article 8 rights under the ECHR.

The appellant applied for judicial review and thereafter the respondents amended their decision letter in respect of their approach of the application under DP 5/96.

Immigration Judge Wyn Williams stated that both of the decisions issued by the home office were immigration decisions for the purposes of section 82(2) of the 2002 Act. The judge also held that it was unreasonable of the respondents not to issue an appealable removal decision at the same time of the decision. The judge stated that the respondent was not entitled to state that the appellants could not benefit from the DP 5/96 policy.

The judge accepted that the respondent's decision with respect to their treatment of article 8 was irrational and ordered the respondent's to reconsider the article 8 claim. The judge dismissed other elements of the appellants judicial review claim.

The failure to issue a removal decision

The appellants argued that the failure of the home office to issue a removal decision which would effectively, grant a right of appeal was contrary to policy and legislation (the 2002 Act). However, the Court's conclusion in this respect was that Parliament never intended for overstayers to benefit from a right of appeal under section 82(2) which contains the list of appealable decisions. The court held that the legislation intended for those who were in the UK lawfully, to benefit from an appealable decision. Where a no right of appeal decision is made, it cannot be argued that a decision should then be made to confer such a right.

The appellants in this case argued that there was a duty to have regard to the appellant's children under section 55 of the Borders, Citizenship and Immigration Act 2009. The respondent agreed that, where children are involved, there is a need to make a timely decision and that it would be unfair or irrational for the home office not to make a removal decision at the same time as the refusal of leave reiterating however, that each case depended on its individual merits.

Policy DP 5/96

This policy was withdrawn on 8th December 2008 however; the respondents applied the policy to this case as the application was made in October 2008 whilst the policy was still in force. The appellants argued that the policy applied for children who had lived in the UK unlawfully for at least 7 years. The appellants (parents) had been working during this time and the respondents used this deception (obtaining national insurance numbers and working illegally) as exceptional reasons for refusing the appellants application under the policy. The appellants argued that the respondent's decision was not reasonable. The respondents on the other hand, argued that, the appellants had not only falsely obtained national insurance numbers, they had found work and continued to work for over 6 years all of which was work obtained from deception.

The court agreed with the respondents in this respect and stated that they could use this deception to justify their decision to exceptionally refuse the application under the policy.

ZH (Tanzania)

The appellants put forward the above recent Supreme Court case and requested permission for this to be considered. The Court commented that this could be explored by the home office if and when a decision for removal is made. The home office would need to consider the best interests of the appellant's children in light of the above case.

The Court proceeded to dismiss the appeal.

Applicants seeking further advice or information in this category can contact our lawyers on 0207 569 3035 or alternatively at info@ergensharif.co.uk.

POST COMMENT

How to Find Free Casting Calls A Guide To Buy The Right Furnace Introduction to Moleskin Benefits Of Elderberry Magic the gathering-all you need to know about it How To Use An Enema System Tool 2011 Removal – How To Remove System Tool How to Find Los Angeles Casting Call How To Remain Positive During A Serious Illness Picking the Right Type of Rug The Variety of Wool Rugs How to Prepare for Free Casting Calls Watch America's Next Top Model Season 16 Episode 2 Alek Wek