The Civil division of the Court of Appeal handed down judgment in the case of IT (Sierra Leone) v Secretary of State for the Home Department [2010] EWCA Civ 787 on the 9th July 2010. The case concerned the power of the Immigration Tribunal to direct the Secretary of State for the Home Department to grant a particular immigration status to an individual subsequent to a finding that their removal from the United Kingdom would violate their human rights.

The appellant, a citizen of Sierra Leone, had been in the United Kingdom from 1993. An application for leave to remain based on article 8 of the Human Rights Act was refused by the respondent in 2008, who ordered the appellant’s removal. Appealing to the Immigration Tribunal, the appellant successfully challenged the removal on article 8 grounds. Following the Tribunal’s decision, a grant of three years discretionary leave to remain was granted by the respondent in February 2009. Upon further application, the immigration judge directed the respondent to grant indefinite leave to remain instead.

At a reconsideration hearing, a Senior Immigration judge found for the respondent that the immigration judge had no power to issue a direction, and further, that the direction given was not within the scope of "giving effect to the [the Tribunal's] decision" as set out in s 87(1) of the Nationality, Immigration and Asylum Act 2002 and had been issued too late.

Before the Court of Appeal, the issue to be determined focused on whether the tribunal had the power to issue the direction. Referring to Farinloye v Secretary of State for the Home Department [2010] EWCA Civ 203, the court found that where the case relates to a removal decision, as distinct from an immigration rules case, the power to issue a direction is not one which gives effect to the tribunal’s decision. Distinguishing R (Boafo) v Secretary of State for the Home Department [2002] 1 WLR 1919, the court found that in Boafo the appeal was against a refusal of leave to remain and as such a direction to grant indefinite leave would here be giving effect to the Tribunal’s decision.

Deciding that the grant of three years leave rather than indefinite leave to remain did not violate article 8, the court also heard argument for the appellants that the sole rational outcome of the tribunal’s ruling, taking account of the appellant’s family life, was a grant of indefinite leave to remain. R (Shahid) v Secretary of State for the Home Department [2004] EWHC 2550 (Admin) was referred to; in that case the court held that the presence of family life did not itself mandate a grant of indefinite leave to remain, as there was at least a “significant possibility” of change of circumstances in the three year period.

Dismissing the appeal, the court held that though a person cannot be removed from the United Kingdom following a successful article 8 appeal, the Secretary of State retains the power of discretion to grant leave to remain and determine the length of such a grant.