The Court of Appeal’s judgment on the Secretary of State’s power to delay decision-making in Tier 1 applications

The Court of Appeal’s judgment on the Secretary of State’s power to delay decision-making in Tier 1 applications


CategoryNews Author Zane Malik QC Date

The Court of Appeal (Lord Justice Moylan, Lady Justice Andrews and Lord Justice Lewis) has handed down its judgment in R (X) v Secretary of State for the Home Department [2021] EWCA Civ 1480.

The Appellant, a Tier 1 Migrant, applied to further leave to remain in the United  Kingdom. The Secretary of State decided to delay making a decision on that application pending an outcome of a criminal investigation against the Appellant of tax fraud. By way of a Judicial Review claim, the Appellant challenged that decision at the Upper Tribunal. The Upper Tribunal dismissed his claim. He then appealed to the Court of Appeal. He contended that:

  1. the Secretary of State has no power to delay making a decision on an application for leave to remain;
  2. the Secretary of State has imposed a requirement for leave to remain in respect of the Appellant which has not been laid before Parliament; and
  3. the Secretary of State has applied the incorrect policy and that delay in present case is unconscionable and unlawful.

The Court of Appeal, dismissing the Appellant’s appeal, held that the Secretary of State has an implied power under the Immigration Act 1971 to delay making a decision on an application for leave to remain. The Court of Appeal further held that a situation where the Secretary of State decided to await the outcome of a criminal investigation would not involve imposition of a condition which had to be laid before Parliament as part of the Immigration Rules. The Court of Appeal added that the Secretary of State’s decision to delay making a decision on the facts of this case was rational and lawful.

Zane Malik QC appeared for the Secretary of State for the Home Department.

The Court of Appeal’s judgment is available HERE

 


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