A removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) may be made in relation to any person whose leave is statutorily extended leave by virtue of either:
section 3C of the Immigration Act 1971 (the 1971 Act) – where the migrant has made an in-time application and a decision on the application is pending or an appeal against refusal has not yet been exhausted
section 3D of the 1971 Act – where leave has been revoked or curtailed with immediate effect and any appeal against that decision has not yet been exhausted.
The previous government stated that migrants who had received a removal decision under section 47 of the 2006 Act could not be subject to reporting conditions or detention while they had continuing leave pending the outcome of an appeal (House of Commons Official Report 29th March 2006, Col 908). In fact, Schedule 2 of the 1971 Act allows their detention, and in circumstances where leave has been abused this may be appropriate.
Curtailment with immediate effect is used where the migrant has failed to comply with the conditions of their leave, or their character, conduct or associations make it undesirable to allow them to remain in the UK – for example, there is reliable evidence that they have facilitated or entered into a sham marriage or civil partnership to gain an immigration advantage. Sham marriage is known to be a significant and increasing threat to UK immigration control.
To allow robust and proportionate enforcement action against individuals who abuse the immigration system, we are changing policy in regard of persons who have statutorily extended leave under Section 3D of the 1971 Act. Migrants whose leave has been revoked or curtailed with immediate effect will be liable to be detained or to report to the Home Office (depending on the individual circumstances of the case) pending their removal from the UK.
The Home Office will continue not to detain persons whose leave is extended by virtue of section 3C of the 1971 Act. In these cases, migrants have sought to regularise their stay before their leave expired and should not be subject to enforcement action before their application is finally determined. Similarly, a person whose leave is curtailed for reasons outside their control (for example, the college at which they were studying has closed down) would normally be left with some leave remaining, in order to let them find alternative provision. A removal decision would not be made with the curtailment decision and they would be unaffected by this policy change.