UTIAC (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.
Judges:
Blake J P, Perkins UTJ
Citations:
[2011] UKUT 484 (IAC)
Links:
Statutes:
Immigration, Nationality and Asylum Act 2006 47
Jurisdiction:
England and Wales
Citing:
Cited – TE (Eritrea) v Secretary of State for the Home Department CA 11-Mar-2009
The applicant had been refused asylum, but because she was a minor had been given discretionary leave to remain. She applied for an extension, but after a two year delay, this was refused. She now said that both the respondent and the immigration . .
Cited – Sapkota and Another (Pakistan) v Secretary of State for The Home Department CA 15-Nov-2011
In each case, the respondent had refused an application for leave to remain, but had taken no prompt steps for their removal. The applicants now said that this rendered the original decision ‘not in accordance with the law’ under section 84(1)(e) of . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 04 October 2022; Ref: scu.450086