Case No: C4/2011/2883
Neutral Citation Number: [2012] EWCA Civ 1022
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sir Michael Harrison
[2011] EWHC 2936 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/07/2012
Before :

LORD JUSTICE LLOYD
LORD JUSTICE RICHARDS
and
LORD JUSTICE ELIAS
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Between :

	The Queen (on the application of YZ (China))	Appellant	
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	Secretary of State for the Home Department	Respondent	
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(Transcript of the Handed Down Judgment of
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Richard Drabble QC and Ranjiv Khubber (instructed by BHT Immigration Legal Service) for the Appellant
Paul Greatorex (instructed by The Treasury Solicitor) for the Respondent

Hearing date : 19 July 2012
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Judgment
Lord Justice Richards : 
1.	The appellant is a Chinese national who was deported from the United Kingdom to China following a decision by the Secretary of State refusing to revoke the deportation order and certifying the case under s.96(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), thus precluding an appeal against the decision.  The appellant challenged the lawfulness of the certificate and contended that the effect of the unlawful certificate and his removal from the United Kingdom in reliance on it was to deny him an in-country appeal to which he was entitled.  The Secretary of State subsequently withdrew the certificate and agreed to reconsider the refusal to revoke the deportation order, but declined to return the appellant to the United Kingdom pending the further decision and any appeal against it.  The appellant applied for an order requiring the Secretary of State to return him.  Sir Michael Harrison, sitting in the Administrative Court as a deputy High Court Judge, refused in the exercise of his discretion to make such an order.  
2.	The issue in the appeal to this court, for which permission was granted by Jackson LJ, is whether the judge adopted the correct approach towards the exercise of his discretion.  The main contention advanced by Mr Drabble QC is that the judge’s discretion was not as wide as the judge thought it was:  the appellant was entitled under the statutory scheme to an in-country appeal, and this created a presumption in favour of directing the appellant’s return to the United Kingdom as the only way in which full effect could be given to the statutory scheme.
The facts in greater detail
3.	The appellant arrived in the United Kingdom in 2001.  His claim to asylum was refused but he was granted exceptional leave to remain for four years, and on the expiry of that period he was granted indefinite leave to remain.  In November 2007, however, he was convicted of being concerned in the production of a class C drug, namely cannabis, was sentenced to 22 months’ imprisonment and was recommended for deportation.  
4.	In March 2008 he was served with notice of the decision to make a deportation order against him.  It was accompanied by a “one stop” notice under s.120 of the 2002 Act.  An appeal was dismissed by the tribunal on 17 July 2008:  the tribunal concluded in particular that the appellant did not enjoy family life in the United Kingdom within the meaning of article 8.  Subsequent attempts to challenge the tribunal’s decision were unsuccessful and appeal rights were exhausted on 14 September 2008.
5.	The deportation order was signed in February 2009.  The appellant, who had been at liberty since early June 2008 following his release from prison and immigration detention, was detained again in November 2010 and was served with the deportation order on 2 February 2011.
6.	On 16 February 2011 the appellant’s representatives applied for revocation of the deportation order, asserting a change of circumstances, namely that he had been in a relationship for approximately 4 years with a Chinese woman (XZ) whose own long-term immigration status was unresolved; they had lived together following his release from prison; and she had given birth to a child by him on 13 November 2010.  
7.	By a decision letter dated 23 February 2011 the Secretary of State refused the application for revocation and certified the case under s.96(2) of the 2002 Act.  The reasons for the refusal to revoke included reference to the tribunal’s decision in July 2008 as showing that the appellant and XZ were not in a subsisting relationship at that time and had not lived together following A’s release from detention in early June 2008.  Other matters relied on were that, although the appellant had been served with a one-stop notice, he had not made the UK Border Agency aware of any change in circumstances, such as that he was in a subsisting relationship and had fathered a child; when interviewed following his detention in November 2010 he had said that he had no family in the United Kingdom and that he was single and had no children; and an application on his behalf in December 2010 for temporary release made no reference to a partner or child as reasons for him to be released.  Points were also made about the absence of proof that the appellant had a child or that he had been residing with XZ.  It was said that the raising of these matters for the first time after service of the deportation order could only be seen as a deliberate attempt to frustrate the appellant’s removal.
8.	The reasons for the certification under s.96(2) referred to the four-stage process through which the Secretary of State was required to go, as set out in R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin).  What was said in relation to the third stage was this:
“Third the Secretary of State must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (section 96(1)(c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (section (96(2)(c)).  As stated above, your client was served with a ‘one stop’ notice on 19 March 2008, which he exercised on 17 July 2008.  Your client’s family life was considered at appeal and no further evidence has been provided and no satisfactory explanation has been given as to why he failed to do this.”
9.	The appellant’s representatives responded immediately with a letter before claim on 23 February, followed on 24 February by the filing of a judicial review claim, challenging both the refusal to revoke and the certification.  Among the points taken were that the birth of the appellant’s child post-dated the appeal against the deportation order and could not have been raised at that time, that the one-stop notice related to the deportation appeal, and that the fact that the appellant might have had a subsequent opportunity to put the Secretary of State on notice of the birth of his child was not relevant for the purposes of a certificate under s.96(2).  A request for urgent consideration of an application for interim relief was made on the same day as the filing of the judicial review claim form.
10.	This led to the application for permission to apply for judicial review being considered urgently on the same day, 24 February, by Mr CMG Ockelton sitting as a deputy High Court Judge.  He refused permission, stating that the reasoning in support of the Secretary of State’s refusal to revoke the deportation order was entirely sound and that there was no arguable basis why the Secretary of State was wrong to certify the case.  He further ordered that renewal of the application for permission was not to operate as a bar to the removal of the appellant from the United Kingdom.  
11.	The appellant’s representatives gave notice on the same day that the application for permission to apply for judicial review would be renewed at an oral hearing.  They did not, however, make an oral application for a stay of removal pending that hearing, despite the fact that the clear effect of Mr Ockelton’s order was that the renewed application for permission did not of itself give rise to any bar to removal.
12.	The Secretary of State proceeded to remove the appellant to China on 3 March 2011.  The appellant remains in China.
13.	On 28 July 2011 the renewed application for permission to apply for judicial review was heard by Ms Karen Monaghan QC, sitting as a deputy High Court Judge.  She granted permission and ordered an expedited hearing of the case, to take place in September.
14.	On 22 September 2011, a week before the case was due to be heard, the Secretary of State informed the appellant’s representatives that she had given the matter further consideration and, wishing to take a “pragmatic approach” to the resolution of the case, was willing to offer settlement of the claim by withdrawing the certificate under s.96(2), giving the appellant 21 days to make any further representations, and undertaking to reconsider within 3 months thereafter the application to revoke the deportation order.  The Secretary of State stated that she was not willing to return the appellant (whether at public expense or the appellant’s personal expense) for any appeal.  She did not consider that he was at risk in his home country.  She noted that there was no particular need for him to be in the United Kingdom to submit further evidence or to bring any appeal.  Further, given that this was a deportation case, she considered there to be public interest reasons for him to remain out of the United Kingdom.
15.	There followed during the next few days what Sir Michael Harrison described as a flurry of correspondence, in the course of which the Secretary of State agreed to extend the period of 21 days for further representations to 28 days and agreed to pay the appellant’s reasonable costs up to 28 September.  She denied that she had in effect accepted that her original decision had been flawed, reiterating that she had agreed to withdraw the decision on a pragmatic basis.
16.	That was the position as it stood at the hearing before Sir Michael Harrison, which took place on 12 October 2011.  The judge said that the only remaining issue by that stage was whether the court should require the Secretary of State to return the appellant to the United Kingdom while his case was reconsidered.
17.	Since the hearing before the judge there have been a number of developments, though they do not affect the judge’s decision.  The Secretary of State has reconsidered the appellant’s case and, by decision letter served on 20 February 2012, has made a fresh decision refusing to revoke the deportation order.  In the absence of certification under s.96(2), the decision triggers a right of appeal to the tribunal.  But for the fact that he had already been deported, the appellant would have been entitled to pursue that appeal in-country.  It remains the Secretary of State’s position that the appeal can properly be pursued by the appellant from China.  The appellant has lodged an appeal, standard directions have been issued by the tribunal and a hearing of the appeal has been fixed for 4 September, though it must be extremely doubtful whether on any basis the appeal could be ready for hearing by then.  Mr Drabble made clear that if the appellant is limited to an out of country appeal he will pursue it actively, but it remains his position that he should be returned to the United Kingdom to enable him to pursue it in-country.
The judgment under appeal
18.	I turn to consider the judgment of Sir Michael Harrison against which the appeal to this court is brought.  The judge described the issue as follows:
“31.  The issue I have to decide in this case is whether I should exercise my discretion to require the defendant to return the claimant to the UK pending reconsideration of his case by the defendant and any possible subsequent appeal.  It is a wide discretion to be exercised having regard to the matters covered by the submissions of the parties which I have just summarised.”
19.	He started his consideration of those matters by stating that he shared the misgivings expressed in R (Bahta and Others) v Secretary of State for the Home Department [2011] EWCA Civ 895 about the Secretary of State’s practice of settling cases for “pragmatic reasons”.  The failure to give an explanation for withdrawing the certificate had inevitably led to the surmise that it was because it was realised it was legally flawed, which might or might not have been the reason but was plainly a possibility.  The legality of the certificate was to have been the central issue in the judicial review proceedings.  It had now become academic in the light of the settlement by which the Secretary of State had withdrawn the certificate and agreed to pay the appellant’s costs.  In response to the submission by the appellant’s counsel, Mr Khubber, that he should decide the point because it was relevant to whether the Secretary of State should be required to return the applicant, the judge said he was going to approach the matter by assuming that the decision to certify was unlawful; he would thereby be considering the appellant’s case on the issue of return at its highest.  
20.	The judgment continued: 
“34.  In my view, the assumed illegality of the certificate provides the strongest point for the claimant on the issue of return because, if that decision had not been made, the claimant would not have been deported because he would have been able to remain in the UK to pursue his appeal against the defendant’s refusal to revoke the deportation order.  It has led to the claimant’s separation from his partner and the child and to the potential of an out of country appeal.
35.  On the other hand, the claimant’s deportation to China was, at the time, perfectly lawful as being in accordance with the court order of Mr Ockelton who, when refusing permission to apply for judicial review, expressly ordered that renewal of the application was not to operate as a bar to the claimant’s removal.  Whilst I accept that the fact that the claimant’s removal was lawful at the time is not determinative, it is, in my view, a highly material factor against the exercise of discretion.”
21.	The judge accepted that there were differences between this case and the cases of R (CM (Jamaica) v SSHD [2010] EWCA Civ 160 and R (Lewis) v SSHD [2010] EWHC 1749 (Admin), to which I will return, and he observed that these types of case are fact sensitive.  He considered it relevant, though not determinative, that there was no risk of ill-treatment to the appellant in China, this not being an article 3 or asylum case.
22.	He then dealt with the period of separation pending a decision in the case:  
“37.  I accept Mr Khubber’s point that, if the claimant is not returned, he will be separated from his partner and the child for up to 10 months before a decision is made by the defendant at a difficult time for his partner and the child.  I will assume for these purposes that the claimant is the father of the child as it seems reasonable to assume that the claimant’s partner will provide an affidavit to that effect.  I also bear in mind that the best interests of the child is a primary consideration (see ZH (Tanzania)), and I also bear in mind the provisions of section 55 of the 2009 Act [the Borders, Citizenship and Immigration Act 2009] relating to the need to safeguard and promote the welfare of children in the UK.  However, the separation of the claimant from his partner and the child will be for a relatively short time until a decision by the defendant is made, and the child is still very young, not yet one year old.  It is not for me to judge the merits of the Article 8 claim.  That will be a matter for the defendant to decide.  Suffice it to say that the defendant’s decision on 23 February 2011 that there was insufficient evidence of family life or paternity could not be said to be irrational on the evidence then available to her.”
23.	On the point about evidence of paternity, the Secretary of State had said that paternity would be accepted if an affidavit to that effect were provided by the appellant’s partner.  The judge’s assumption that such an affidavit would be forthcoming proved correct:  an affidavit was sworn by XZ in November 2011.
24.	As to the ability of the appellant to pursue his appeal out of country, the judge said this: 
“39.  In my view, the claimant can effectively pursue his appeal from China.  I have no reason to doubt that it should be possible for the claimant to give evidence by video link.  I am not impressed by the suggestion that information about the background of the claimant and his partner may be disseminated to the Chinese authorities.  I see no reason why the video link cannot be operated from private premises.  I also do not foresee any difficulty in communication between the claimant and his partner.  The evidence is that they have been in daily contact over the internet using Skype.  Similarly, I do not see any real difficulty in the claimant giving instructions to his solicitors.  There is no suggestion that there has been any difficulty thus far.  Also, the claimant’s partner will of course be able to give oral evidence at any hearing.  For all those reasons, I am satisfied that the claimant can effectively pursue his appeal from China.  Furthermore, I share the view of Blake J and [Jackson] LJ [in Lewis and CM (Jamaica) respectively] that there is no reason to believe that an out of country appeal will always be ineffective.”
25.	He then accepted that the public interest element arising from the seriousness of the appellant’s conviction was a relevant, though not determinative, consideration.  
26.	He noted finally that the appellant’s solicitors did not pursue an urgent stay application immediately following Mr Ockelton’s order of 24 February 2011 that renewal of the application for permission to apply for judicial review was not to operate as a bar to removal:  he said that it was easy to be wise after the event, but a further week did go by before the claimant was deported without any urgent injunctive relief being sought.
27.	The judge then expressed his conclusion as follows:  
“42.  In deciding how I should exercise my discretion in this case, I have taken into account all the various competing considerations, both those that I have mentioned and others that were urged upon me, and I have weighed them in the balance.  Having done so, my clear conclusion is that this is not a case where it would be appropriate for the court to exercise its discretion to require the defendant to return the claimant to the UK pending reconsideration of the decision to revoke the deportation order.  In those circumstances, it follows that this application should be refused.”
The authorities
28.	The two main authorities to which we have been referred are CM (Jamaica) and Lewis, both of which, as already mentioned, were considered by the judge below.
29.	CM (Jamaica) was a deportation case in which the Secretary of State had refused to treat the appellant’s submissions as a fresh claim and had refused his application for revocation of the deportation order.  The refusal to treat the submissions as a fresh claim was challenged by way of judicial review.  It was believed that the appellant did not have an in-country right of appeal against the refusal to revoke the deportation order, and no appeal was therefore brought against that refusal.  That was a perfectly reasonable position to take in the light of the authorities as they stood at the time.  The appellant’s judicial review claim in respect of the fresh claim decision was dismissed at first instance.  An application for permission to appeal to the Court of Appeal was refused on the papers.  The appellant was then deported to Jamaica.  What happened next was that the Court of Appeal handed down judgment in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] EWCA Civ 119, [2009] QB 686, later affirmed by the Supreme Court at [2009] UKSC 7, [2010] 1 AC 444, establishing that a person in the position of the appellant did have in-country right of appeal.  This led to an amendment of the appellant’s notice of appeal so as to add a ground to the effect that the decision to proceed with his deportation was made on the erroneous basis that he had no in-country right of appeal, and that the first instance judgment had likewise been made on the wrong basis.  Permission to appeal was granted at an oral hearing in the light of the amended ground.
30.	The main argument at the substantive appeal was that the court should make an order that the Secretary of State use his best endeavours to return the appellant to the United Kingdom so that he could pursue an in-country appeal.  The court rejected that argument, though Jackson LJ, in a judgment with which the other members of the court agreed, said that he had found the issue “immensely difficult”.  In essence, his reasons for finding against the appellant were that the appellant could have asserted an in-country right of appeal against the refusal to revoke the deportation order; and had he done so, he would have succeeded in establishing the right as did the appellants in BA (Nigeria).  Furthermore, the deportation of the appellant was lawful, being carried out pursuant to a decision which had not been the subject of appeal.  The case was therefore different from a number of previous decisions to which the court had been referred, namely R (Ahmadi) v Secretary of State for the Home Department [2002] EWHC 2592 (Admin), R (Changuizi) v Secretary of State for the Home Department [2002] EWHC 2569 (Admin) and R (Hilali) v City of Westminster Magistrates’ Court [2008] EWHC 2892 (Admin). The appellant was entitled to apply to the tribunal for permission to appeal out of time against the refusal to revoke the deportation order.  Pursuing the appeal from Jamaica would be more difficult than pursuing it from England, but the proposed appeal would turn almost entirely on facts and evidence contained in the documents, such as medical reports, and the appellant could participate by video link.  He would be able to pursue an effective appeal from Jamaica.  It was held in the circumstances that the court had no power to order the Secretary of State to use best endeavours to return the appellant to the United Kingdom; alternatively, if the court had such a power, it should not exercise the power.
31.	In holding that the appellant could pursue an effective appeal out of country, the court took into account an observation of Sedley LJ in BA (Nigeria), at para [21] of the judgment of the Court of Appeal, about the difficulty of such a course:
“The fact is that, especially but not only where credibility is in issue, the pursuit of an appeal from outside the United Kingdom has a degree of unreality about it.  Such appeals have been known to succeed, but in the rarest of cases.  The reason why the Home Office is insistent on removal pending appeal wherever the law permits it is that in the great majority of cases it is the end of the appeal.”
32.	Lewis was a decision of Blake J in the Administrative Court.  It, too, arose out of removal to Jamaica pursuant to a deportation order.  The claimant brought judicial review proceedings to challenge the Secretary of State’s refusal to revoke the deportation order.  The court ordered a stay of removal pending consideration of the application, but removal was effected before any relevant official within the UK Border Agency was aware of the order granting the stay.  The judge held that removal was not in breach of the order and was not unlawful but that the court nevertheless had a discretion to direct the claimant’s return to the United Kingdom.  In holding that the court had a discretion, he distinguished CM (Jamaica) on the basis that in Lewis there had been an order of the court staying removal and the court did not lose its power to supervise such an order merely because the order had proved ineffective without anyone being guilty of contempt. 
33.	Blake J went on to hold that the discretion of the court should not be exercised in favour of directing the claimant’s return.  He pointed out that this was not an article 3 case but an article 8 family life case and that deportation which is subsequently shown to have violated article 8 is not irremediable.  A successful out of country appeal could lead to the claimant being returned as part of the appeal process.  He had previously concluded in R (E and A) v Secretary of State for the Home Department [2008] EWHC 1140 (Admin), [2009] Imm AR 61 that there was no reason to believe that out of country appeals would always be ineffective, and he observed that the court had reached a similar conclusion in CM (Jamaica).  He continued, at para [38]:
“I have no doubt in this case that any discretion that the court has should not be exercised in favour of the claimant.  I reach that conclusion for the following reasons:
i)  No application on an interlocutory basis had been made to restore him to the United Kingdom and I am satisfied that if an application had been made it would have been bound to fail.
ii)  No out of country appeal was lodged, even under protest that it should have been an in-country appeal.  Pursuit of such an appeal might have resolved the matter without the need to continue this judicial review.
iii)  Although I have concluded that the question of legality of removal is not decisive in this case against the existence of discretion it is a highly material factor against the exercise of such discretion.
iv)  The fact that the court’s order for a stay was not effectively communicated to UKBA was in part contributed to by the claimant’s solicitor’s failure to take fairly obvious steps that might have led to its communication and efficacy.  These included steps required by the Practice Direction.
v)  The issues in any Article 8 appeal the claimant may now choose to lodge will be focussed on the impact that deportation has had on his children and family members here, rather than of anything he can contribute by way of primary narrative facts.  The children and family members will be able to give evidence to the IJ determining the appeal.  The claimant can participate in those appeal proceedings.
vi)  This is a case in which if he wished to participate through video link it is likely that with the assistance of the defendant an available mechanism can be found to enable him to do so ….”
34.	Although they were not cited to us and do not appear to add materially to the relevant principles, I should mention several other cases in which the question whether to order a person’s return to the United Kingdom has been considered.  
35.	The issue in R (AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 447, [2010] 1 WLR 855 was whether the Secretary of State had been right to decide that representations did not amount to a fresh claim.  The appellant had been removed from the United Kingdom on the basis of that decision.  The court held that the decision was flawed and should be remitted for reconsideration.  It rejected a submission that the only reasonable conclusion was that the representations did amount to a fresh claim; but Laws LJ said that if he had accepted that submission and the other members of the court had agreed, “I should have ordered the Secretary of State to return the claimant to the United Kingdom so as to facilitate the in-country right of appeal which she would in those circumstances enjoy” (para [28]).  He did not give further reasoning in support of that view.
36.	R (Ahmed) v Secretary of State for the Home Department [2009] EWHC 2676 (Admin) was another case of removal following refusal to accept representations as a fresh claim.  The case had substantial similarities to the present case, in that the claimant had been removed to Iraq following an order of the court refusing permission to apply for judicial review on the papers and directing that an application for an oral renewal should not constitute a basis for delaying removal.  Ouseley J, however, granted permission at the oral renewal and dealt with the matter as the substantive hearing, quashing the decision and holding that the only lawful decision would have been to treat the representations as a fresh claim, affording the claimant an in-country right of appeal.  The judge referred to the disadvantages of an out of country appeal, to the difficulties of communicating via video link from Iraq, and to the fact that it was an article 8 case and the evolution of family life up to the date of the appeal could be taken into account in the case of an in-country appellant but not in the case of an out of country appellant (a factor said to be not without importance where the child of the family was only 4 months old).  The judge thought it right to order the claimant’s return to the United Kingdom in order to make the quashing remedy effective.
37.	In R (D) v Secretary of State for the Home Department [2010] EWHC 2110 (Admin) the claimant had been deported to Jamaica following the Secretary of State’s certification of his human rights claim as clearly unfounded.  Nicol J held that the Secretary of State had not been entitled to come to the view that the representations before him constituted a clearly unfounded article 3 claim.  He then ordered that all reasonable steps be taken to secure the claimant’s return.  The principle of an order does not seem to have been the subject of argument, and the existence of a live issue as to risk of article 3 ill-treatment in Jamaica was plainly an extremely strong factor in favour of ordering return.
38.	R (Luthra) v Secretary of State for the Home Department [2011] EWHC 3629 (Admin) concerned removal of the claimant to Afghanistan following refusal to accept representations as a fresh claim.  There had even been an urgent oral application for a stay, which was refused by the court.  Permission to apply for judicial review was subsequently granted, however, and at the substantive hearing Collins J held that the Secretary of State had been wrong not to treat the representations as a fresh claim and that removal should not have occurred, though the Secretary of State had acted in good faith and in accordance with the law as it was then believed to be in effecting the removal.  The judge did not think that this was a case where he could properly say that the Secretary of State must cause the claimant to be returned, but he indicated that if the claimant sought entry clearance the appropriate approach of the Secretary of State in the circumstances would be to grant it.
39.	I should also mention the judgment of the Court of Appeal in R (E1 (Russia)) v SSHD [2012] EWCA Civ 357, which was cited to us, on the effectiveness of an out of country appeal.  The case involved a challenge to the formal notice of the Secretary of the State’s decision to cancel the appellant’s indefinite leave to remain in the United Kingdom.  That cancellation was linked to a direction that the appellant be excluded from the United Kingdom on national security grounds.  On the basis of the decision of Collins J in MK (Tunisia) [2010] EWHC 2363, as upheld by the Court of Appeal at [2011] EWCA Civ 333, the appellant had a limited period within which he was entitled to enter the United Kingdom and exercise an in-country right of appeal against the decision to cancel his indefinite leave to remain.  In breach of the relevant regulations, however, the notice of the Secretary of State’s decision failed to contain that information, with the result that the appellant was unaware, until it was too late, of his entitlement to enter the United Kingdom to pursue an in-country appeal.  The Court of Appeal quashed the notice, so that the Secretary of State would have to serve a new notice and the appellant would then be entitled to return and pursue an in-country appeal.  
40.	In the course of his discussion of the issue, Sullivan LJ, with whom the other members of the court agreed, observed that the importance of the right to bring an in-country appeal is demonstrated by the fact that Parliament has prescribed in detail in s.92 of the 2002 Act the kinds of appeal which may be brought while the appellant is in the United Kingdom, and has made provision for a certification process which removes that right where a claim is clearly unfounded.  At para [43] he said this:  
“I endorse the view expressed by Collins J (a former President of the Immigration and Asylum Tribunal) in MK at first instance that common sense indicates that an appellant who has to pursue an appeal while he is out of the country faces considerable disadvantages, particularly in the context of an appeal to SIAC ….”
Although that observation has a wider application, it was plainly directed principally at the particular context of appeals to SIAC.  The rest of the paragraph elaborated on the handicaps under which appellants labour in any event in appeals to SIAC, in which context Sullivan LJ said that the court should be vigilant to ensure that appellants were not further disadvantaged by a failure on the part of the Secretary of State to comply with the relevant regulations.  
The parties’ submissions 
41.	The case advanced in the grounds of appeal and the written submissions settled on behalf of the appellant by Mr Khubber was along the following lines:
i)	The judge erred in failing to make a clear ruling on whether the certificate under s.96(2) was unlawful.  An assumption that it was unlawful was not of the same strength or relevance as an actual finding that it was unlawful.  The appellant was entitled to a ruling on the point, especially in circumstances where the Secretary of State had subsequently withdrawn the certificate on “pragmatic grounds” without admitting its unlawfulness or explaining why such action was being taken.
ii)	If the decision to remove the appellant was made on the basis of an unlawful certificate, the Secretary of State would have secured an advantage through her own wrongdoing.  It would have deprived the appellant of the in-country appeal to which he was entitled and which had significant advantages over an out of country appeal.
iii)	It would also have deprived the appellant of his entitlement to live with his family while an appeal was being pursued, and would have had a negative impact on the strength of the appellant’s family life claim under article 8 for the purposes of any future appeal.  The adverse impact on the family unit is accentuated by the fact that the case concerns a very young child; the appellant was removed while the child was still a baby.  At the time of the hearing below he had been separated from her during the majority of her first year; that has now substantially increased.  The deprivation, in the case of a very young child, of support from both parents is a weighty matter.  Reliance was placed on what was said by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 about the need to have regard to the welfare of children as a primary consideration in article 8 cases, and on the duty under s.55 of the Borders Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.  CM (Jamaica) and Lewis were decided without reference to those developments relating to the welfare of children.
iv)	The issue was not whether the appellant could pursue an effective appeal while in China but whether he should have to pursue an out of country appeal at all when he had a right to an in-country appeal.  But the judge also erred in relying on the possibility of effective video link evidence.  The position of a witness giving evidence via video link from China (and especially a witness who had previously sought asylum unsuccessfully) was on any reasonable view more difficult than, for example, that of a witness giving evidence from Jamaica.
42.	Mr Greatorex, for the Secretary of State, submitted in his skeleton argument that there was no merit in any of those points.  There was nothing wrong in the judge making an assumption in the appellant’s favour that the certificate under s.96(2) was unlawful, as opposed to his making a finding to that effect.  All the other points raised were taken properly into account by the judge, who also had regard to the relevant case law.  Matters of weight were for the judge.  This was an unimpeachable exercise of discretion.
43.	At the oral hearing of the appeal, Mr Drabble QC put the appellant’s case in a different way.  His primary submission was that the judge was wrong to approach the matter on the basis that he had a wide discretion.  It was crystal clear that the power to certify under s.96(2) was not available in the circumstances in which the certificate was issued and that the certificate was unlawful (and the subsequent withdrawal of the certificate after the appellant had been removed should be seen as a recognition by the Secretary of State that there was no basis to certify).  The appellant had therefore been unlawfully deprived of his statutory right to an in-country appeal.  The judge should have taken this as his starting-point.  There was a presumption that the appellant should be returned to the United Kingdom because this was the only way in which full effect could be given to the statutory scheme.  Mr Drabble accepted that there was still a degree of discretion in the court, since injunctive relief was being sought, but submitted that there had to be good reasons to rebut the presumption in favour of return.  On the facts of this case, however, the only conclusion reasonably open was that the appellant should be returned.  The appellant had done all he could to assert his right to an in-country appeal, by way of his judicial review claim.  For that and other reasons, CM (Jamaica) and Lewis were both distinguishable (but Mr Drabble also indicated that he would if necessary submit that the approach of the court in Lewis was wrong and should not be followed).
44.	Whilst advancing his primary submission along those lines, Mr Drabble also adopted the arguments in Mr Khubber’s written submissions as grounds of challenge to the judge’s exercise of discretion.
45.	Mr Greatorex was evidently taken by surprise by Mr Drabble’s primary submission.  He showed us that the case had not been advanced in this way before the judge or in the grounds of appeal or the written submissions to this court, and he put formally on record that adequate notice had not been given of the point.  That said, he made clear and forceful submissions against the case as now advanced.  He submitted that the appellant gained no support from the authorities for anything other than a wide discretion in the court whether to order return or not.  If the removal was unlawful, that was capable of being a strong factor in favour of return but it would be wrong to establish a presumption in favour of return.  Cases will vary greatly on their particular facts, and the right course is for everything to be put into the balance by the court.  He took issue with Mr Drabble’s contention that the certificate under s.96(2) was plainly unlawful:  the Secretary of State had made no concession on the point and he submitted that the point was arguable either way.  But it was unnecessary to decide the point because the judge made an assumption in the appellant’s favour that the certificate was unlawful.   Whilst it followed that the appellant’s removal must be taken to have been unlawful, that is not how it appeared at the time.  Not only was the certificate valid on its face, but in the light of Mr Ockelton’s order and the absence of any oral application for a stay there was no court-imposed bar to removal.  
46.	On the other issues Mr Greatorex relied in his oral submissions on the points made in his skeleton argument, referred to above, save for some brief additional observations on the appellant’s ability to pursue an appeal effectively from China.  
Discussion
47.	Like the judge below, I think it unnecessary to make a ruling on the lawfulness of the certificate under s.96(2).  The issue turns in part on whether the one stop notice served on the appellant at the time of the decision to make a deportation order against him (para [4] above) continued to have effect after his appeal rights in respect of that decision were exhausted, so as to impose on him a continuing duty to make the UK Border Agency aware of any relevant change in circumstances.  There is also an argument that the reasoning in support of the certification was deficient, in particular because the passage cited at para [8] above could not sensibly apply to the birth of the appellant’s child, which post-dated the period referred to in that passage.  Mr Drabble advanced a strong case that the certificate was flawed, but Mr Greatorex was not given notice that the point would be argued on the appeal and did not come prepared to argue it; and even if a decision were necessary on the point I would be unwilling to decide it without full argument.  
48.	A ruling on the point is unnecessary for the simple reason that the judge below took the sensible course of declining to rule on it but making the express assumption in the appellant’s favour that the certificate was unlawful.  He took that assumption as the premise of the rest of his discussion. An assumption for this purpose carried just as much weight as an actual ruling would have done.   In my view there was nothing wrong in the judge proceeding as he did. 
49.	Where a person in the position of the appellant is removed from the United Kingdom on the strength of an unlawful certificate, the effect is to deprive him unlawfully of an in-country appeal to which he is entitled under the statute.  It seems to me that Mr Drabble is right in his submission that this should be the starting point for the court in considering in such a case whether to order the person’s return to the United Kingdom.  It is a factor telling strongly in favour of ordering the person’s return, so as to restore him to the position he should have been in under the statute and would have been in if the Secretary of State had acted lawfully.  I think it unhelpful and undesirable, however, to talk in terms of a “presumption” in favour of return and of the need for good reasons to rebut the presumption.  I also think it mistaken to characterise the court’s discretion as anything other than a wide one.  Whilst the fact that a person has been unlawfully deprived of his statutory right to an in-country appeal should be the starting point and is a strong factor in favour of return, it would be wrong to seek to cut down the discretion of the court in relation to the grant of a mandatory injunction.  The particular circumstances of the case may give rise to numerous other factors capable of bearing on the question whether it is just and appropriate to grant such an injunction.  All such factors should be put into the balance.  These cases are fact-sensitive, as the judge said and as the decided cases show. 
50.	The judge did not go on to express himself in quite the terms that he might have adopted if the case had been presented to him in the way it was presented to us by Mr Drabble.  In substance, however, it seems to me that he approached the matter correctly.   He said in para [34] of his judgment that the assumed illegality of the certificate was the strongest point for the appellant on the issue of return because if the decision to certify had not been made the appellant would have been able to remain in the United Kingdom to pursue an appeal and would therefore not have been deported.  Thus he proceeded on the basis that the unlawful decision to certify, as it was assumed to be, had deprived the appellant of the in-country right of appeal to which he was entitled under the statute.  He took this as his effective starting point and he plainly regarded it as a factor telling strongly in the appellant’s favour.
51.	The judge then took into account, as in my view he was entitled to do, the fact that the appellant’s removal appeared lawful at the time (he said at para [35] that it “was” lawful at the time, but he plainly meant that there was at the time no apparent bar to it).  On the face of it, by reason of the certificate, the appellant had no in-country right of appeal.  Permission to challenge the Secretary of State’s decision had been refused on the papers by Mr Ockelton, who had directed that an oral renewal was not to operate as a bar to removal.  No oral application for a stay had been made during the week that then elapsed before the appellant was removed.  I do not think that the judge can be said to have fallen into error in treating the fact that the removal appeared lawful at the time as a highly material factor against the exercise of discretion to direct return.  
52.	Mr Drabble’s submissions emphasised the differences between this case and CM (Jamaica) and Lewis, in particular that in this case the appellant had done all he could to assert his right to an in-country appeal (subject to the failure to make an oral application for a stay following Mr Ockelton’s order).  Again, however, I can see no error in the judge’s approach.  Whilst he did not go into detail, he accepted that there were differences between those cases and the present case.  He did not suggest that the refusal of an order for return in those cases should lead to a corresponding refusal in this case.  On the contrary, he made clear that he was deciding this case on its own particular facts.
53.	The judge dealt next with the consideration that the appellant’s removal had separated him from his partner and child.  The judge assumed in the appellant’s favour that the appellant was indeed the father of the child.  He directed himself in terms of the need to have regard to the best interests of the child as a primary consideration, in accordance with ZH (Tanzania), and he also bore in mind the provisions of s.55 of the 2009 Act relating to the need to safeguard and promote the welfare of children in the UK.  He considered the likely length of that separation pending a fresh decision by the Secretary of State and (as is clear from a reading of the discussion as a whole) pending an appeal against an adverse decision.  Again, there was nothing wrong with any of this.
54.	The judge stated that in his view the appellant could pursue an appeal effectively from China.  He made the plainly valid point that the appellant’s partner would be able to give oral evidence in the United Kingdom and that there was no reason to think that the appellant would have any difficulty in communicating with her or in giving instructions to his solicitors.  He saw no reason to doubt that it should be possible for the appellant to give evidence by video link.  In the absence of any evidence to show that there might be a problem, he was entitled to take that view; and although Mr Drabble submitted that video link evidence, given through an interpreter, would be unsatisfactory in an appeal that might well turn on credibility, I am not persuaded that that is a serious point of objection.  The only substantial issue on credibility in this case is likely to relate to the question whether the appellant and his partner lived together; and whatever difficulties there may sometimes  be with assessing credibility via video link in complex cases, they would not seem to apply to that essentially simple factual issue.  Like the judge, I am also not impressed by the suggestion that the giving of video link evidence might be inhibited by fear of information about the appellant or his partner coming to the attention of the Chinese authorities.  
55.	The in-country right of appeal is of course of very real importance and there are undoubted disadvantages in an out of country appeal.  But context is important, and the kind of appeal with which this case is concerned, relating to family life under article 8 in circumstances where the members of the family unit save the appellant himself are situated in the United Kingdom, is very different from, for example, the kind of appeal to SIAC that was under consideration in EI (Russia) (see para [38] above).  Disadvantageous as it may be for the appellant to have to pursue an appeal out of country, the judge was in my view right to align himself with the rejection, in CM (Jamaica) and Lewis, of the proposition that an out of country appeal will always be ineffective, and he was entitled to find in the particular circumstances of this case that an appeal could be pursued effectively.
56.	In addition to all the matters I have mentioned so far, I take the view that the judge was entitled to take into account, as a relevant albeit not determinative consideration, the public interest element arising out of the seriousness of the appellant’s conviction.  It is not a point on which I myself would place much weight in circumstances where, but for the unlawful certificate (as it is assumed to be) the appellant would have had the right to remain in the United Kingdom to pursue an in-country appeal notwithstanding the seriousness of his conviction, but it was a factor properly placed in the balance when considering how the discretion should be exercised.
57.	For those reasons I do not accept that the judge’s exercise of discretion was flawed.  It is possible that another judge might have reached a different conclusion.  Ahmed (para [36] above) is an example of a case decided the other way on broadly similar facts.  But that possibility is inherent in discretionary decision-making.  The decision in this case was thorough and carefully reasoned.  The judge approached the matter correctly, took the relevant considerations into account and reached a conclusion reasonably open to him.  There is no basis for interference by an appellate court.
58.	I would dismiss the appeal.
Lord Justice Elias :
59.	I agree.
Lord Justice Lloyd :
60.	I also agree.