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Court of Appeal upholds legality of enforcement gap policy

DATE: 21 May 2015

The Court of Appeal today handed down judgment in R (Oboh & ors) v. Secretary of State for the Home Department [2015] EWCA Civ 514. The case involved a challenge to the legality of the Home Office policy on the making of removal decisions in immigration cases at the same time as decisions refusing leave to remain. The issue is important because it determines whether an applicant has as a remedy a full appeal to the Tribunal or only judicial review. The policy concerned the circumstances in which a removal decision would be made on demand. The background to the dispute is the separation of such decisions, known as the “enforcement gap”, which has already been considered by the Supreme Court: Patel v. Secretary of State for the Home Department [2013] UKSC 72, [2014] AC 651. 

The Appellants argued that the policy was unlawful on two grounds. First, they argued that it should have been laid before Parliament as part of the Immigration Rules. Secondly, they contended that the terms of the policy were vague and insufficiently certain. The Court of Appeal dismissed both arguments. The policy did not set the conditions for the grant of leave to enter or remain and so did not fall within the scope of the requirement to lay Immigration Rules before Parliament. Its terms were sufficiently certain to be lawful. 

David Blundell appeared on behalf of the Secretary of State in the Court of Appeal in Oboh (and as junior counsel in the Supreme Court in Patel).