England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London WC2 Friday, 12th April 2002

Friday, 12th April 2002

1. LORD JUSTICE CARNWATH: This is a renewed application for permission to apply for judicial review following a decision of Ouseley J refusing permission. It is in some ways an unfortunate case. The background is that the claimant, who arrived here in 1994 from Ghana, was then refused asylum in February 1999. He was convicted of attempted rape in March 1999, and in May sentenced to a term of imprisonment with a recommendation for deportation. In October 1999 he made representations, through his solicitors, seeking to be allowed to remain exceptionally, and in particular relied on a letter from someone in Ghana, dated July 1999, which he said gave him reason to think that his life would be in danger if he returned.
2. On 3rd October he received a letter saying that he had been granted indefinite leave to remain as a refugee. Clearly, having received that (although he was still in prison) he must have thought that he was secure in this country once he was released. However, in May 2001 when he was due to be released, he was told by the prison authorities that he was going to be deported. He received a letter from the Prison Service which said simply that they had been advised that he was to be deported and that his indefinite leave was to be withdrawn. That must have come as a considerable shock against the background. However, he then received a letter from the Immigration Service, dated 12th May, in which he was told that the grant of refugee status in October 2000 was an error, his earlier appeal having been dismissed in September 1999. The letter said that the decision to grant indefinite leave to remain would be unaffected. The letter concluded, however, by saying:

"... he should be aware that should the Secretary of State decide to act on the court's recommendation to deport him following his conviction for attempted rape the indefinite leave to remain will be negated by the signing of any deportation order."

3. Against that background a decision to deport was indeed issued two days later, and removal directions were set.
4. In those circumstances Mr Ogunbiyi, for the claimant, says that there has been certainly a muddle, indeed he suggests there may be doubts whether there was really an error as suggested. More significantly he says that the deportation order was not based on a proper consideration of the circumstances, including the representations made in 1999, nor indeed was the claimant given a proper chance to make representations before the deportation order. However, he accepts that, notwithstanding the confirmation of the indefinite leave to remain, it was open to the Secretary of State as a matter of law, to act on the judge's recommendation to make a deportation order and to make such an order, provided he went through the proper processes.
5. The judge considered all these matters. He took into account a statement by the caseworker responsible for the case at the Home Department. This confirms the position that the original decision in relation to refugee status was an error. It goes on to consider the circumstances of the claimant, including the representations made in 1999 and the July 1999 letter. The writer says that that letter, if anything, further undermines the credibility of the claimant; and she confirms, taking all the matters into account, that in the present circumstances there are no compassionate grounds for not making the deportation order.
6. In view of that statement, the judge, in my view, was bound to say that there was nothing in the case, however unfortunate the background, unless there was some legal principle which bound the Secretary of State in some way to stand by the implications of his decision to grant indefinite leave. Indeed, the nub of the case, I think, for the claimant, is that there has been no change of circumstances since that grant of indefinite leave, which has not been said to be an error, and therefore no possible grounds for, in effect, overriding it by the deportation order.
7. However, I am unaware of any legal principle which says that the Secretary of State was not entitled to make this deportation order, simply because he had granted indefinite leave. There is no suggestion that the claimant has materially changed his circumstances as a result since, of course, he has been in prison in the meantime. So I do not need to consider whether a change of circumstances would have affected the matter. In the absence of that, however much sympathy one has for the claimant in having his expectations disappointed, I can see no arguable grounds on which I could grant permission to appeal. This application is therefore dismissed.
(Application dismissed; no order for costs).