England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION & ASYLUM CHAMBER
DA/01349/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th April 2015

Lord Justice Sales :

Introduction

1. This is an appeal from a decision of the Upper Tribunal (Mr C. M. G. Ockleton, Vice President) promulgated on 15 July 2014, in which the Upper Tribunal allowed an appeal from a decision of the First-tier Tribunal ("FTT") promulgated on 23 September 2013. The appeal concerns the procedure according to which the Secretary of State may make a deportation order in respect of a foreign national who has been convicted of a serious crime.

Factual background

2. The appellant is a national of Jamaica, born in 1978. He entered the United Kingdom as a visitor in 2002, and was thereafter granted a period of leave to remain as a student. After three months of study he remained in the United Kingdom as an overstayer without leave.
3. There is little information about the appellant's activities in the United Kingdom. He married a British citizen, and the marriage is said to be subsisting. His wife has four children, of whom the appellant is not the biological father. The appellant is the father of a child by another woman: the child was born in 2009.
4. The appellant has twice been convicted of possession of Class A drugs with intent to supply. On 23 February 2004 he was sentenced to a period of 12 months in prison. The Secretary of State made a deportation order, but the appellant's appeal against deportation was successful. He was then granted discretionary leave to remain until May 2011.
5. On 17 January 2011, the appellant was arrested for further drugs offences and remanded in custody.
6. On 24 June 2011, the appellant applied for indefinite leave to remain as the spouse of a British citizen. The Secretary of State refused that application, and by a decision dated 9 February 2012 the FTT dismissed the appellant's appeal, holding that he was not entitled to leave under the Immigration Rules and that his removal to Jamaica would not violate Article 8 of the European Convention on Human Rights. The appellant's appeal based on Article 8 was dismissed by the Upper Tribunal on 24 October 2012. Permission to appeal was refused.
7. Meanwhile, on 23 September 2012 the appellant was convicted of drugs offences after a trial and was sentenced to five years imprisonment.
8. On 17 June 2013, the Secretary of State, acting by an official of the UK Borders Agency, made a further deportation order ("the Deportation Order") pursuant to the recommendation which had been made. The Deportation Order was signed by the official "for and on behalf of" the Secretary of State. Although the identity of the signatory is not in evidence, there is no dispute that he was an official of appropriate seniority to sign such an instrument. The Deportation Order was in these terms:

"Whereas [the appellant] is a foreign criminal as defined by section 32(1) of the UK Borders Act 2007:

The removal of [the appellant] is, under section 32(4) of that Act, conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971:

The Secretary of State must make a deportation order in respect of a foreign criminal under section 32(5) of the UK Boarders Act 2007 (subject to section 33).

Therefore in pursuance of Section 5(1) of the Immigration Act 1971, once any Right of Appeal, that may be exercised from within the United Kingdom under section 82(1) of the Nationality, Immigration and Asylum Act 2002 is exhausted, and said appeal is dismissed, or if [the appellant] does not have a right of appeal that may be exercised from within the United Kingdom, the Secretary of State, by this order, requires the said [appellant] to leave and prohibits him from entering the United Kingdom so long as this order is in force."

9. At the hearing before us, the Secretary of State sought to introduce evidence which was not before the FTT and the Upper Tribunal to explain the background of internal consideration within the UK Borders Agency regarding how the Deportation Order was proposed and then made. However, the application to introduce that new material came far too late, and the court ruled that it should be excluded. Accordingly, this appeal proceeds on the basis of the more limited materials properly before it, and without reference to that additional evidence.
10. Under cover of a letter dated 24 June 2013 from the UK Borders Agency the appellant was sent the Deportation Order and a Decision Notice setting out the reasons for the making of the Deportation Order, together with an appeal form. The letter and the Decision Notice were signed by Mr Afolabi, an official in the Immigration Enforcement Criminal Casework section of the UK Borders Agency, who is different from the signatory of the Deportation Order. From the way in which the documents were prepared, the inference is that a senior official signed the Deportation Order and then allocated responsibility for carrying it into effect to a more junior official within the Agency.
11. The Decision Notice stated that "the Secretary of State has decided to make a deportation order in accordance with section 32(5) of the UK Borders Act 2007" ("the 2007 Act"), referred to the Deportation Order which accompanied the Notice and explained the reasons why it was considered that section 32(5) applied in the appellant's case and why the appellant's arguments based on Article 8 had not been accepted.
12. The appellant appealed against the Deportation Order, relying on two grounds of appeal: (i) that the Deportation Order had been signed by an official on behalf of the Secretary of State before a valid decision to make such an order had been made, with the result that it could not be treated as lawful; and (ii) that his deportation would violate Article 8 rights of the appellant and family members.
13. The FTT upheld the appeal on the first ground, ruling that the decision to deport the appellant was not in accordance with the law (para. [23] of its decision). The FTT remitted the matter to the Secretary of State for further consideration and found it unnecessary to consider the second ground of appeal.
14. The Secretary of State appealed to the Upper Tribunal. The Upper Tribunal ruled that the FTT had been in error in holding that the decision to make the Deportation Order had been made unlawfully. It allowed the appeal and remitted the case for re-determination by the FTT on the Article 8 issue, with a direction that the first ground of appeal be determined in accordance with the Upper Tribunal's decision. The appellant now appeals to this court.

The Legal Framework

15. Under section 3(5)(a) of the Immigration Act 1971 ("the 1971 Act"), a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good.
16. In view of the length of the latest sentence of imprisonment in respect of the appellant, he qualifies as a foreign criminal for the purposes of section 32 of the 2007 Act. Section 32(4) of that Act stipulates that, for the purposes of section 3(5)(a) of the 1971 Act, "the deportation of a foreign criminal is conducive to the public good."
17. Section 32(5) and (6) of the 2007 Act provide in relevant part as follows:

"(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 …"

18. Section 33(1) of the 2007 Act provides that section 32(4) and (5) do not apply where an exception set out in section 33 applies. The material exception for present purposes is Exception 1. So far as relevant, section 33(2) states that Exception 1 "is where removal of the foreign criminal in pursuance of the deportation order would breach – (a) a person's Convention rights …".
19. Section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") provides for a right of appeal to the FTT in defined cases. Subsection (1) states that "where an immigration decision is made in respect of a person he may appeal [to the FTT]". Subsection (2) defines the meaning of "immigration decision": it sets out a list which includes matters such as "refusal of leave to enter the United Kingdom" (sub-paragraph (a)), "refusal of entry clearance" (sub-paragraph (b)) and various forms of "decision that a person is to be removed from the United Kingdom" (sub-paragraphs (g) to (ia)), as well as sub-paragraph (j) ("a decision to make a deportation order under section 5(1) [of the 1971 Act]").
20. Section 82(3A) of the 2002 Act provides in relevant part as follows:

"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 …"

21. It should be noted that an "immigration decision" is a defined term of art for the purposes of section 82. It is employed as a compendious description to cover a range of decisions and administrative acts or orders in relation to which a right of appeal to the FTT will arise. In referring as it does to "a decision to make a deportation order" or "a decision that section 32(5) applies", section 82 is not intended to create a strong legal distinction between the decision to make a deportation order (or a declaration that section 32(5) applies) and the order (or declaration) itself. It is simply convenient terminology to use in the context of the definition of the term, "immigration decision", to indicate that where a deportation order (or a declaration that section 32(5) applies) is made, there should be a right of appeal.
22. Section 79(1) of the 2002 Act provides that a deportation order may not be made in respect of a person while an appeal under section 82(1) could be brought or is pending. Section 79(3) states that the section "does not apply to a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007". The Deportation Order in this case contained a statement to that effect. Therefore, the automatic stay on removal under section 79(1) was disapplied in the appellant's case (although, had the Secretary of State sought to remove him while his appeal was pending, it might have been possible for the appellant to obtain injunctive relief from a court based on his Convention or other rights).
23. The Immigration (Notices) Regulations 2003 ("the Regulations") govern the way in which notice of immigration decisions which are appealable should be given. Regulation 2 defines the term "immigration decision" for the purposes of the Regulations as having the same meaning as in section 82(2) and (3A) of the 2002 Act.
24. Regulation 4 of the Regulations requires written notice of an immigration decision to be given. Regulation 5(1)(a) requires that such notice "is to include or be accompanied by a statement of the reasons for the decision to which it relates."
25. The time within which an appeal should be brought against an immigration decision runs from the date of service of the notice of the decision, which in this case occurred when Mr Afolabi's letter of 24 June 2013 with its enclosures (the Deportation Order, the Decision Notice and the appeal form) was served on the appellant.

Discussion

26. Mr Gill QC, for the appellant, submits that the decision to make the Deportation Order was taken after that Order was signed and that, as a result, the relevant "immigration decision" was unlawful. In the language of section 84(1)(e) of the 2002 Act, it was a decision which was "not in accordance with the law", which is a valid ground of appeal in relation to it.
27. In my judgment, this argument cannot be accepted. It wrongly confuses the Decision Notice dated 24 June 2013 with the actual decision to make the Deportation Order, which was in fact taken when an official signed that Order on 17 June 2013.
28. The relevant "immigration decision" in this case, for the purposes of section 82(1) of the 2002 Act, was contained in the Deportation Order itself, which clearly recorded the decision to make such an order and which stated that it was made in accordance with section 32(5) of the 2007 Act. This constituted an "immigration decision" as defined in section 82(3A) of the 2002 Act.
29. Once the decision had been taken to make a deportation order which stated that it was made in accordance with section 32(5) of the 2007 Act (i.e. a decision within section 82(3A) of the 2002 Act), as occurred on 17 June 2013, the Secretary of State came under an obligation, by virtue of regulation 4 of the Regulations, to give written notice of it. Under regulation 4, taken by itself, it would have been sufficient simply to send the appellant the Deportation Order.
30. By virtue of regulation 5(1) of the Regulations, however, the notice given under regulation 4 was required to include or be accompanied by a statement of the reasons for the decision to which it related. The Deportation Order set out reasons, albeit of an exiguous kind, and it is arguable that it would itself have satisfied the requirements of regulation 5 even if sent without the Decision Notice. However, this was not an argument advanced by Mr Dunlop for the Secretary of State and there is no need to consider it. As the covering letter dated 24 June 2013 explained, the Decision Notice was the document which the Secretary of State maintained set out the reasons for making a deportation in accordance with section 32(5) of the 2007 Act.
31. Regulation 5 does not state that a statement of the reasons for the decision to which it relates must be produced before or at the same time as the immigration decision itself, and there is no basis for implying such a requirement. The purpose of the obligation is to ensure that a person affected by an immigration decision knows the reasons why it has been made and, in light of those reasons, has an opportunity to challenge the lawfulness of the decision by appealing in relation to it. A statement of the reasons for the decision can readily fulfil that function even if prepared after the decision has been taken, so long as it is served with the document recording the decision. That is what happened in this case.
32. There is, of course, an implied requirement that the statement of the reasons drawn up pursuant to regulation 5 should be genuine and accurate. But there is no basis in this case for thinking that the reasons in the Decision Notice were anything other than genuine and accurate. If the reasons in the Decision Notice had been anything other than genuine and accurate, the Secretary of State would have been under a duty to inform the court of this, pursuant to the ordinary obligation of candour upon a public authority in judicial review proceedings. The argument has proceeded at each level on the footing that the reasons are genuine and accurate, but that a legal problem arose because they were given in a document signed after the Deportation Order was made.
33. It would not be plausible to draw the inference that the more senior official who signed the Deportation Order did so for no reason or for reasons known solely to himself. Rather, the fair inference from the limited materials available to the FTT, Upper Tribunal and in this court is that the senior official signed the Deportation Order personally after being briefed about the case, and assigned the task of writing up the Decision Notice to the relevant caseworker with responsibility for the case. This is an entirely usual and acceptable way in which decisions are taken and formal documentation in relation to them is prepared within government departments, and indeed in most large organisations. Senior officials or managers do not have the luxury of time to consider each decision which they have to take from scratch, and are dependent on recommendations made to them by more junior staff with detailed understanding of the case and their own review and adoption of reasoning which is proposed to them. This also occurs where decisions are taken by Ministers, with the assistance of their departments.
34. Where reasons have to be given for a decision, they can be explained after the decision itself has been taken and it is acceptable for that to be done by someone who has knowledge of the reasons, even if not himself the decision-maker. That is, indeed, the regular position which obtains in judicial review proceedings when evidence is adduced to explain the reasons that a Minister had for taking a decision which is the subject of legal challenge. It is usual for the reasons to be explained in evidence from a civil servant with the relevant knowledge, rather than in evidence from a Minister personally.
35. It should be observed that in formal terms, and as correctly reflected in the Deportation Order and the Decision Notice, by virtue of the Carltona principle (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560) there was one decision-maker in this case: the Secretary of State. She acted through her department and its agencies, including the UK Borders Agency, and the civil servants in them, including Mr Afolabi and the more senior official who signed the Deportation Order. The reasons for the decision in the appellant's case by that official, and then written up formally by Mr Afolabi in the Decision Notice, were the reasons of the Secretary of State. There was nothing untoward or unlawful in the decision-making process being carried out in this way.
36. For these straightforward reasons, I would dismiss this appeal. The Upper Tribunal correctly relied on the fundamental point made above: see, in particular, para. [29] ("The making of the deportation order expressly under s. 32(5) is a decision that s. 32(5) applies to the case. To treat it otherwise would be bizarre") and para. [30]. It is not necessary to lengthen this judgment by examining additional, more elaborate arguments put forward by Mr Dunlop and the additional reasoning of the Upper Tribunal in support of its conclusion.

Lord Justice Sullivan:

37. I agree.

Lord Justice Jackson:

38. I also agree.