England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE CRANSTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th December 2010

Lord Justice Jackson:

1. This judgment is in four parts, namely;

Part 1. Introduction,

Part 2. The Facts,

Part 3. The Application for Permission to Appeal to the Court of Appeal,

Part 4. Decision.

Part 1. Introduction
2. This is an application for permission to appeal to the Court of Appeal. However, somewhat unusually, the application has been attended by counsel on both sides and fully argued. Therefore I am in a position to give a fuller and more detailed judgment on the application than is usually the case on an application for permission to appeal. I also have indicated in response to the joint request by counsel on both sides that I give permission for this judgment to be cited on future occasions, even though it only arises from an application for permission to appeal.
3. The central issue in these proceedings is whether a decision made by the Secretary of State not to revoke a deportation order against the appellant is, or is not, appealable through the tribunal system. In order to set out the background to these proceedings I must first refer to the relevant statutes. I shall refer to the Immigration Act 1971 as "the 1971 Act". I shall refer to the Nationality Immigration and Asylum Act 2002 as "the 2002 Act". I shall refer to the UK Borders Act 2007 as "the 2007 Act".
4. Section 3(5) of the 1971 Act provides:

"A person who is not a British citizen is liable to deportation from the United Kingdom if --

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) another person to whose family he belongs is or has been ordered to be deported."

5. Section 5 of the 1971 Act provides:

"(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen."

6. Section 82 of the 2002 Act provides:

(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

(2) In this Part "immigration decision" means –

……………….

(j) a decision to make a deportation order under section 5(1) of that Act, and

(k) refusal to revoke a deportation order under section 5(2) of that Act."

I should explain that the references to "that Act" in section 82(2) are references to the 1971 Act.

7. Section 92 of the 2002 Act provides:

"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

…

(4) This section also applies to an appeal against an immigration decision if the appellant -

(a) has made an asylum claim, or a human rights claim, while in the United Kingdom … ."

8. Section 94 of the 2002 Act provides:

"(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded."

9. Section 96 of the 2002 Act provides:

"(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies --

(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision."

10. Section 32 of the 2007 Act provides:

"Automatic deportation

(1) In this section "foreign criminal" means a person —

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) Condition 2 is that—

(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c 41) (serious criminal), and

(b) the person is sentenced to a period of imprisonment.

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c 77), the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—

(a) he thinks that an exception under section 33 applies,

(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or

(c) section 34(4) applies."

11. Section 33 of the 2007 Act provides:

"Exceptions

(1) Section 32(4) and (5)—

(a) do not apply where an exception in this section applies (subject to subsection (7) below), and

(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person's Convention rights, or

(b) the United Kingdom's obligations under the Refugee Convention.

(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction."

12. Section 35 of the 2007 Act provides for a number of amendments to be made to the 2002 Act. Section 35(3) provides that there shall be inserted in section 82 of the 2002 Act a new subsection (3A) as follows:

"(3) Before section 82(4) (general right of appeal) insert –

(3A) Subsection (2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007; but –

(a) a decision that section 32(5) applies is an immigration decision for the purposes of this Part, and

(b) a reference in this Part to an appeal against an automatic deportation order is a reference to an appeal against a decision of the Secretary of State that section 32(5) applies."

13. Rules 353 and 353A of the Immigration Rules provide:

"353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise."

14. In this judgment I shall refer to a deportation order which the Secretary of State is required to make under section 32(5) of the 2007 Act as "an automatic deportation order".
15. After these introductory remarks I must now turn to the facts.
Part 2. The Facts
16. The appellant is a national of Angola, who appears to have been born in 1980. The appellant came to the United Kingdom in April 1990 at the age of 10 together with his uncle. The uncle obtained asylum because he was a supporter of UNITA. UNITA was then engaged in guerrilla warfare against the government of Angola, but that body is now an established opposition party. The appellant was granted leave to remain in the United Kingdom as a dependant of his uncle.
17. From the age of 10 onwards the appellant attended school in England and he became fluent in English. Unfortunately, at the age of 18 the appellant embarked upon a criminal career. Since 1998 the appellant has accumulated 23 convictions for 34 offences. He has served six custodial sentences. The appellant's offences include robbery and attempted robbery. The appellant has been assessed by the probation service as presenting a high risk of reoffending. Given the appellant's criminal record, that assessment is not one which causes surprise.
18. Following the appellant's conviction for attempted robbery in November 2008 (for which he was sentenced to two years' imprisonment) the Secretary of State informed the appellant of his liability to deportation. After considering the appellant's submissions the Secretary of State made a deportation order against the appellant on 26 September 2009. The Secretary of State took the view that the appellant was a foreign criminal who did not fall within the exceptions set out in section 33 of the 2007 Act. Accordingly, the Secretary of State was, in his view, obliged to make a deportation order under section 32(5) of that Act.
19. The appellant appealed against that deportation order on a number of grounds. In particular, the appellant alleged that deportation of himself from the UK to Angola would be a breach of his rights under Article 8 of the European Convention on Human Rights. He asserted that he enjoyed family life with his former partner, Ms Conteh, and their child, Amelia. The appellant duly brought his appeal before the Asylum and Immigration Tribunal. A panel of that tribunal, comprising Immigration Judge Elson MBE and Mrs S L Hewitt, heard the appeal on 6 November 2009 and delivered a lengthy written determination on 25 November 2009.
20. Taking matters fairly shortly, and without any disrespect to the panel which dealt with that appeal in November 2009, the panel came to the conclusion that the appellant did not enjoy any family life with Ms Conteh or the child. There had been little association between the appellant and Ms Conteh and Amelia.
21. The panel did accept that the appellant had a private life in the UK by reason of the fact that he had lived here since the age of 10. However, the panel had regard to the appellant's history of offending and reoffending. The panel took the view that the appellant was likely to resume his drug habit on release from prison and that he was likely to reoffend. The panel also took the view that the pattern of reoffending was one where offences committed by him were of an increasingly serious nature. The panel carried out the requisite balancing exercise, as required by Article 8(2) of the European Convention on Human Rights, and the panel concluded that deportation of the appellant to Angola would not involve any disproportionate interference with the appellant's rights under Article 8. In reaching that decision the panel had regard to the relevant case law, including Uner v The Netherlands [2006] ECHR 873 and N (Kenya) v. SSHD [2004] EWCA Civ 1094; [2004] INLR 612.
22. The appellant was aggrieved by the decision of the Asylum and Immigration Tribunal and appealed to the newly constituted Upper Tribunal. The Upper Tribunal heard that appeal on 28 May 2010. The hearing took place before Senior Immigration Judge Martin, who delivered his decision on 14 June 2010. The Senior Immigration Judge reviewed the decision of the Asylum and Immigration Tribunal at some length, and then, in the last six paragraphs of his decision, he explained why he was upholding that decision and dismissing the appeal. Taking matters shortly, the Senior Immigration Judge agreed with the assessment made by the Asylum and Immigration Tribunal. He did not consider that family life had been established by the appellant. The Senior Immigration Judge accepted that the appellant had a private life in the United Kingdom; however, there was a high risk of the appellant continuing to reoffend, and he came to the same conclusion as had been reached by the Asylum and Immigration Tribunal in relation to the balancing exercise under Article 8.
23. The appellant, having failed in both of his appeals through the tribunal system, then launched what he contended was a fresh claim to remain in this country on human rights grounds. Letters were sent by the appellant on 29 June and 30 August 2010 to the Home Office, contending that the appellant had a private life in the UK by reason of his relationship with a woman not previously mentioned, namely Ms Jacinta Marie McNamara, and it was also alleged that the appellant and Ms McNamara had a child called Keara. Therefore it was argued that the appellant had an established family life in the United Kingdom by reason of his relationship with these individuals and he had a right under Article 8 not to be deported from the UK.
24. At first blush it seems extraordinary that these allegations surfaced for the first time after the completion of both of the appellant's tribunal appeals. However, it should be born in mind in the appellant's favour that he was unrepresented at both of those appeals. Nevertheless, it may be thought that even an unrepresented litigant would have thought it appropriate to mention the existence of Ms McNamara and Keara, if he was alleging an established family life in the UK.
25. The Secretary of State considered the new representations made on behalf of the appellant. By letter dated 1 October 2010 the Secretary of State responded to those new representations. In essence, if I may summarise a six-page letter, the Secretary of State said that he did not accept the assertions about the new lady friend and the new child. He believed that if there was any truth in these assertions they would have been mentioned at an earlier date. Furthermore, the Secretary of State took the view that, because of the appellant's various custodial sentences and his way of life in the UK, he had not in fact lived with Ms McNamara or Keara and therefore, even if there had been any relationship, it did not amount to family life either with Ms McNamara or with Keara.
26. The Secretary of State asserted in his letter dated 1 October that the new materials submitted, when taken in conjunction with the previous material, did not generate any realistic prospect of success in establishing an asylum claim. Accordingly, the Secretary of State declined to treat the new material as constituting a fresh claim within paragraph 353 of the Immigration Rules. The Secretary of State also stated in the letter sent on her behalf:

"You have no further right of appeal as this letter does not constitute an immigration decision for the purposes of section 82 of the Nationality Immigration and Asylum Act 2002."

27. The appellant was dissatisfied with that decision. Accordingly, on 22 October 2010 he commenced judicial review proceedings in order to challenge the Secretary of State's decision. The grounds of challenge set out in the original application form for judicial review were somewhat diffuse and are no longer relevant to the issues before the court. Suffice it to say that the claim form in its original condition was considered by HHJ Stewart sitting as a deputy judge of the Administrative Court on 25 October 2010. HHJ Stewart took the view that the proposed claim for judicial review had no prospect of success and he refused permission to apply for judicial review.
28. I should mention at this stage that an injunction to restrain the deportation of the appellant, whilst his application for permission to proceed with the judicial review was proceeding, has been granted and extended by the court. The injunction, as currently drafted, is due to expire at 4pm this afternoon. I shall therefore return to the matter of that injunction later in this judgment, but before 4pm.
29. The most important development in this litigation is that, on a date in November 2010, counsel, Mr Gordon Lee, was instructed to act on the appellant's behalf. Mr Lee drafted fresh grounds of judicial review, which were lodged with the Administrative Court and substituted for the grounds originally put forward. These fresh grounds are dated 26 November 2010. Mr Lee, in the fresh grounds, does not pursue a contention that the material advanced between June and August 2010 constitutes a fresh claim. Instead, Mr Lee contends in the amended grounds for judicial review that the decision taken by the Secretary of State (after the determination by the Upper Tribunal) not to revoke the deportation order is an immigration decision within the meaning of section 82 of the 2002 Act which can be appealed through the tribunal system. Accordingly, it is argued that the Secretary of State has, at the moment, no right to deport the appellant pursuant to the deportation order previously made.
30. On 30 November 2010 there was a hearing before Cranston J at which the appellant's application for permission to proceed with his claim for judicial review was renewed orally. Mr Lee, as counsel for the appellant, put forward his argument that there was a statutory right of appeal against the decision not to revoke the deportation order. This argument involved some analysis of the statutory provisions and it was disputed by counsel for the Secretary of State. Cranston J took the view that the issue concerning the interpretation of the statutory provisions was a nice point, but not one which he needed to decide. Cranston J took the view that the appellant's underlying case was so lacking in merit that, whether or not he had a right of appeal through the tribunal system, the deportation order should stand.
31. I should interject at this point to say that I do not have a transcript of Cranston J's decision. However, I have seen a brief note of that decision taken by the Treasury Solicitor. The summary of that decision which I have given just now reflects what I have been told by Mr Lee, who was present as counsel at the hearing before Cranston J.
32. The appellant was aggrieved by the decision of Cranston J. Accordingly he applied for permission to appeal to the Court of Appeal.
Part 3. The Application for Permission to Appeal to the Court of Appeal.
33. The appellant contends that he ought to have permission to appeal to the Court of Appeal because the argument of statutory construction merits full debate. The appellant says that, on any view, he might well be right. Furthermore, he contends that the basis upon which Cranston J refused to grant permission to proceed with the judicial review claim is unsupportable. The appellant contends that it is not for a court to prejudge how the Immigration and Asylum Chamber of the First-tier Tribunal might determine any appeal brought before it.
34. The application for permission to appeal was considered yesterday morning on the papers by Maurice Kay LJ. Maurice Kay LJ took the view (for obviously sensible reasons) that this application for permission to appeal should be dealt with at an oral hearing and with both sides present. Accordingly, he directed that there should be a hearing of the application today so that it could be dealt with before the injunction should expire this afternoon.
35. The parties have both used considerable endeavours in order to prepare for a contested oral hearing today with only one working day's notice. I express my thanks to the solicitors and counsel on both sides for their considerable industry in putting together the necessary documentation and preparing their respective skeleton arguments for use at the hearing today.
36. Mr Slater, who appears for the Secretary of State, does not support the reasons given by Cranston J for refusing permission to proceed with the judicial review claim. That seems to me to be a sensible concession. Although I share Cranston J's general views about the meritoriousness or otherwise of the appellant's position, I do not think that the Administrative Court can step in and take a decision which Parliament has provided should be taken by the First-tier Tribunal with a right of appeal to the Upper Tribunal. Nevertheless, Mr Slater submits that the decision of Cranston J can be supported on an alternative ground. This is that the Secretary of State's decision not to revoke the deportation order following the submissions made to the Secretary of State between June and August 2010 was not an "immigration decision" within section 82(2) of the 2002 Act. Therefore, says Mr Slater, the appellant has no in country right of appeal. The entirety of the argument today has revolved around that issue.
37. Mr Lee, for the appellant, submits that the Secretary of State's decision not to revoke the deportation order falls within section 82(2)(k) of the 2002 Act. Therefore, says Mr Lee, there must be a right of appeal to the First-tier Tribunal. Mr Lee points out that the 2007 Act added a new subsection (3A) to section 82 of the 2002 Act in the terms which I read out in Part 1 above. That new subsection, says Mr Lee, impacts upon section 82(2)(j). However, he points out that it does not impact upon section 82(2)(k). Furthermore, Parliament has not inserted, as it might have done, a further subsection (3B) which could have fettered the operation of section 82(2)(k).
38. In response to this argument Mr Slater submits that, when one reads all of the statutory provisions together, it is clear that Parliament did not intend a refusal to revoke a deportation order pursuant to section 32(6) of the 2007 Act to be an appealable immigration decision. The argument runs as follows. A refusal to revoke an automatic deportation order pursuant to section 32(6) of the 2007 Act is not a decision made under section 5(2) of the 1971 Act. Therefore such a decision does not fall within the terms of section 82(2)(k) of the 2002 Act. In the Secretary of State's written submissions the argument is formulated thus:

"The power to revoke a deportation decision made under section 5(1) of the 1971 Act simpliciter is found in section 5(2). However, where the order is made in accordance with section 32(5), the power to revoke arises instead under section 32(6) of the 2007 Act. The words of section 32(6) are clear in this respect: 'the Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless [...] '"

39. The arguments between counsel on this point of statutory construction were detailed and at times worthy of the later Scholastic philosophers. In the course of this debate I asked Mr Slater where in section 32(6) one could find the power referred to in paragraph 36 of the Secretary of State's written submissions. Mr Slater looked in vain at the words of section 32(6) and was unable to point to such a power. In those circumstances he orally reformulated paragraph 36 of the written submissions to read as follows:

"The power to revoke a deportation decision made under section 5(1) of the 1971 Act simpliciter is found in section 5(2) However, where the order is made in accordance with section 32(5), the power to revoke is contained in section 5(2) of the 1971 Act in combination with section 32(6) of the 2007 Act. The words of section 32(6) are clear in this respect: 'the Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless [...]'"

40. That reformulation of paragraph 36 of the Secretary of State's written submissions is inevitable when the provisions of section 32(6) of the 2007 Act are scrutinised. That reformulation is also, in my view, fatal to the Secretary of State's case. A decision of the kind described in the reformulated paragraph 36 of the written submissions in my view plainly falls within section 82(2)(k) of the 2002 Act. Section 82(2)(k) neither asserts nor implies that if any other statutory provision, in addition to section 5(2), impacts upon the power to revoke then such refusal to revoke falls outside subparagraph (k).
41. Mr Slater next referred to the Explanatory Notes accompanying the 2007 Act. He pointed out that Lordn Steyn, in R (on the application of Westminster City Council) v National Asylum Support Service [2002] UKHL; [2002] 1 WLR 2956 at paragraph 5, had indicated that it may be permissible to refer to such Explanatory Notes for enlightenment and assistance in statutory interpretation. I shall not in this judgment comment on the degree of assistance which may sometimes be derived from Explanatory Notes. It seems to me that in the present case the Explanatory Notes cited by Mr Slater do not really offer any assistance at all in relation to the problem before the court. Mr Slater cites paragraph 107 of the Explanatory Notes. This comments in general terms about section 32 of the 2007 Act, but does not bear upon section 32(6) or the interesting point debated today. Mr Slater then draws attention to the Explanatory Notes commenting on section 34(4) of the 2007 Act. Section 34(4) of the 2007 Act is not a provision which is relevant to the present proceedings. Mr Slater then draws attention to the Explanatory Notes concerning section 35(3) of the 2007 Act, which inserts subsection (3A) into section 82 of the 2002 Act. The commentary on section 35(3) of the 2007 Act is clear, helpful and uncontroversial, but again it sheds no light on the question of interpreting section 32(6) of the 2007 Act.
42. In my view, the alternative analysis advanced by Mr Lee as to the interaction between the various statutory provisions is the correct one. Section 5(2) of the 1971 Act confers upon the Secretary of State the power to revoke a deportation order previously made. Section 32(6) of the 2007 Act substantially constricts that power to revoke a deportation order where the deportation order is an automatic deportation order relating to a foreign criminal. In other words, section 5(2) of the 1971 Act confers a power and section 32(6) of the 2007 Act constricts the exercise of that power.
43. I was at one point troubled by the possible consequences of this interaction of the statutory provisions. It occurred to me that the provisions might enable an appellant with the benefit of skilled legal advice to bring forward a series of sequential hopeless appeals, each one carrying a right of challenge through the tribunals. There is, however, no substance to that fear. Sections 94(2) and 96(1) enable the Secretary of State to issue certificates in such cases and to prevent a series of unmeritorious appeals proceeding through the tribunal system.
44. Let me now return to the facts of this case. The Secretary of State decided in October and subsequently, in later correspondence, in November 2010 that the new grounds put forward by the appellant were totally lacking in merit. He concluded that they did not amount to fresh claim. On the merits of this case I can well understand why the Secretary of State took that view. I can also well understand why Cranston J took the view which he expressed as to the underlying merits of the appellant's case. Nevertheless, it seems to me that there is a fatal flaw in the Secretary of State's present position: the Secretary of State has not considered whether or not to certify the decision under sections 94(2) or 96(1) of the 2002 Act. In those circumstances, it seems to me that the appellant has a right of appeal under section 82 of the 2002 Act.
45. Although this matter has been fully argued before me over the course of this morning, I am not required or permitted finally to decide these issues. Suffice it to say that after hearing the full argument I am quite satisfied that the tests set out in rule 52.3(6)(a) of the Civil Procedure Rules is satisfied. This proposed appeal has a real prospect of success. Therefore permission to appeal should be given.
Part 4. Decision
46. Rule 52.15(3) of the Civil Procedure Rules enables this court, instead of giving permission to appeal, to give permission to the appellant to proceed with his claim for judicial review. That seems to me to be an entirely sensible course to adopt. Rule 2.15(4) enables the Court of Appeal, when granting permission to proceed with a judicial review claim, to determine whether the judicial review claim should proceed in the High Court or in the Court of Appeal. It seems to me, and it seems to both counsel as well, that in the context of these proceedings, where the parties have the benefit, if such it be, of a reasoned decision by a single judge after full argument, that it would be more appropriate for any judicial review proceedings to proceed before the Court of Appeal rather than before the Administrative Court.
47. The full Court of Appeal will of course comprise three lords justices, or two lords justices and one High Court judge, and will not be bound in any way by the views which I have expressed this afternoon. If, by any chance, the Secretary of State sees force in the views which I have expressed this afternoon, and is not desirous of expending huge legal costs, she may see fit to deal with this matter by an alternative course. The Secretary of State could, if she sees fit, take a fresh decision about the issues which have been raised by the appellant in June and August of this year. When taking any fresh decision the Secretary of State might also turn her mind to the question whether she should certify any such decision under sections 94(2) or 96(1) of the 2002 Act.
48. Finally, there remains the question of the injunction. The injunction has most recently been renewed by Hughes LJ on 10 December. Hughes LJ has ordered that there be a stay of removal until 4 pm this afternoon. It is now 3.10 pm, so the injunction will expire in 50 minutes time. I make an order continuing the injunction until the determination of the judicial review proceedings or further order. If events occur which make the continuance of the injunction inappropriate in the future, no doubt one or other party will apply to this court to rescind the injunction.

Order: Application granted