Rules And Rights

An applicant who applies for leave to remain in the United Kingdom, but is refused, will only be able to appeal the decision if at the time that they applied for the leave they already had leave of some sort, unless the Home Office go on to make a decision to remove the applicant (which gives rise to a separate right of appeal).

The Home Office have recently adopted a practice where an application has been refused of stating that a decision to remove will follow later. There may be a good reason for this practice, which allows failed applicants who were already here unlawfully, to leave under their own steam without the expense and bureaucracy involved in a forced removal. However, it has led to real difficulties for those convinced that the refusal of leave was mistaken. They have to remain in limbo, unable to work (or receive benefits) until such time as the Home Office decide to remove them.

The recent decision in Mansoor v Secretary of State for the Home Department [2011] EWHC 832 (Admin) is interesting. It demonstrates that – following the many (largely unsuccessful) cases in which claimants argued that if the Secretary of State refuses an application she should make a decision to remove them at the same time (thereby securing rights of appeal), culminating in Daley Murdock v Secretary of State for the Home Department [2011] EWCA Civ 161 (23 February 2011) – the Administrative Court may in the right case be willing to make substantive findings on the refusal of leave itself, bypassing the need for an appeal.

The Facts

The Claimant sought Judicial Review of the Secretary of State for the Home Department's refusal to grant her indefinite leave to remain in the United Kingdom in order to continue to reside with her husband and children. The couple had five adult children and two minor children, the three eldest with ILR and the four youngest with British citizenship. The Claimant had been granted two years' leave as a spouse, but by the time she came to apply for ILR, her husband had been made redundant. The application was refused because the couple were now reliant on public funds.

The Claimant appealed to the Tribunal, unsuccessfully. Then she made a further application, relying on Article 8 and the best interests of the children. That was refused. No right of appeal obtained, as the Claimant had had no leave to remain at the time she made her application. The Claimant instead sought Judicial Review, challenging the decision itself and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT