The Upper Tribunal haven’t hung around in turning their attention to the recent case of Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, which was only reported here on the blog three weeks ago. They have also reviewed the authorities leading up to Sapkota and have outlined guidance for the tribunal when dealing with cases where Sapkota points are raised and/or may be applicable.

The official headnote to Patel (consideration of Sapkota – unfairness) India [2011] UKUT 00484 (IAC) reads as follows:

(1) There is no substantive segregation of considerations going to an extension of stay and removal where the appellant seeks leave to remain outside the rules on 395C factors and these are considered on their merits with the consequence that the respondent states removal will follow even if powers under s 47 of the Immigration, Nationality and Asylum Act 2006 are not formally used when the decision is made to refuse to vary leave to remain.

(2) The decision in Sapkota [2011] EWCA Civ 1320 is based on a public law duty to exercise s.47 powers where fairness requires it, having regard to the factors considered in Mirza [2011] EWCA Civ 159 and TE (Eritrea) [2009] EWCA Civ 174. It does not amount to an inflexible rule that the power must always be exercised.

(3) There was no unfairness where the Secretary of State and the judge considered the factors relevant to intended removal in the appeal against the decision to refuse to vary leave.

(4) It would be irrational to afford weight as a compassionate factor to the first appellant’s desire to continue to live and work in the United Kingdom when his leave had been as a working holiday-maker and he had obtained that leave by misrepresenting his true intentions.

In addition, the guidance to be followed by the Tribunal appears at paragraph 30 of the case:

30. Our understanding of the public law principles developed in the authorities leading up to Sapkota that must now be applied by judges determining immigration appeals is the following:-

(i) The legitimacy of segregating decisions on extensions of leave to remain with decisions on removal is a question of the fair exercise of public law powers rather than a matter of statutory construction turning a power to refuse leave at or shortly after a variation decision into an invariable duty to do so.

(ii) Segregation means a failure to apply the broad discretion in intended removal cases to a situation where a person has no claim to remain under the strict provisions of the Immigration Rules but has a case to make for leave to remain for a limited or indefinite period outside the rules.

(iii) A refusal by the Secretary of State or the Tribunal judiciary to consider the broader claims at the time when an appeal with leave to remain can be brought is unfair because it requires such a person to overstay and commit a criminal offence and then make representations that raise a human rights claim in order to obtain a pre-removal appeal.

(iv) In Mirza the Court of Appeal was confronted with a policy of the Secretary of State not to consider the two decisions together in order to encourage voluntary departure, despite the evidence that those who considered they had a claim worth considering would prefer to run the risks of criminality, illegality and irregular status in order to wait for an opportunity to make them. Such a policy was unlawful.

In Patel, the Secretary of State’s representative submitted that even though no removal decision had been issued in respect of the appellant, this made little difference to the issues to be considered and determined in the substantive appeal. At paragraph 13, the Secretary of State’s representative is recorded as having submitted that:

…in this case the appellant had a right of appeal in which he was able to ventilate every issue that he raised in his grounds of appeal including the compassionate factors said to have arisen from his length of residence and connections here. The Secretary of State intended to make a removal decision and had therefore taken all factors into account that would need to be considered before making such a lawful decision.

The Upper Tribunal decided that the principal in Sapkota was not clear cut: that it would depend on the individual factors in the case. In the case of Patel, despite the fact that no removal decision had been issued in respect of him, the Upper Tribunal found that the principal in Sapkota did not apply, partly because all relevant issues relied upon by him could be ventilated at the appeal before the tribunal.

The case is not as unhelpful as it may seem at first glance. In fact, in some cases, it may well be in an appellant’s best interests to seek substantive consideration of his appeal, particularly when all necessary matters have been considered by the Secretary of State already: rather than wait, in limbo, for the Secretary of State to issue a removal decision and for have to go through the whole appeal process once again….