England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/03/2011

Mr Justice Irwin:

Factual Background

1. The Claimant is a Turkish man who entered the United Kingdom clandestinely in 1997. Between then and the current hearing, he has had three appeals before the Asylum and Immigration Tribunal, in all of which he has raised either asylum or human rights grounds. On 17 June 1999, his asylum application was dismissed. In 2002 he made an application for leave to remain in the United Kingdom based on his rights pursuant to Article 3 of the European Convention of Human Rights. This was refused by the Secretary of State and his appeal was dismissed on 2 September 2002.
2. On 14 October 2003, the Claimant was convicted of offences concerning dealing in heroin. He was sentenced to 14 years imprisonment.
3. The Secretary of State wrote to the Claimant on 9 November 2008 indicating that the Claimant was liable to automatic deportation and asking him to provide reasons why he might fall within any of the exceptions to automatic deportation. On 8 December 2008, the Claimant made an application for asylum and also claimed that his deportation would breach his rights under Articles 2, 3 and 8 of the ECHR. On 18 March 2009, the Claimant's application for a certificate of approval of marriage was refused by the Defendant because the Claimant had failed to provide requested information to show that his relationship was genuine.
4. On 16 April 2010 a deportation order was signed against the Claimant. The text reads in part as follows:

"MEHMET EBCIN is a foreign criminal as defined by Section 32(1) of the UK Borders Act 2007:

The removal of MEHMET EBCIN 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 Borders Act 2007 (subject to Section 33)

Therefore in pursuance of Section 5(1) of the Immigration Act 1971, once any Right of Appeal under Section 82(1) of the Nationality and Asylum Act is exhausted, and the said appeal is dismissed, the Secretary of State, by this Order, requires MEHMET EBCIN to leave and prohibits him from entering the United Kingdom so long as this order is in force."

5. The Defendant refused the Claimant's further application for asylum and on 4 May 2010 served the Claimant with the Deportation order dated 16 April 2010.
6. An in country Right of Appeal was given against this Order, but this was dismissed by the First-Tier Tribunal of the Immigration and Asylum Chamber on 30 July 2010. Removal directions were set on 6 October 2010 with a planned date of departure of 18 October. On 11 October, the Claimant submitted further Article 8 ECHR representations asking for the automatic Deportation order to be revoked. These representations were considered and refused by the Defendant on 13 October 2010. The Defendant also considered whether the representations constituted a fresh claim within the meaning of paragraph 353 of the Immigration Rules, but concluded that the representations were not sufficient to represent a fresh claim and therefore no further right of appeal was given.
7. The instant proceedings were issued on 15 October. The Claimant was not deported on the 18 October pending consideration of the application. The matter was considered on paper by Burnett J. As part of his reasoning in granting permission he identified the question in hand as being:

"Whether a refusal to revoke an automatic deportation order made pursuant to Section 32(5) of the UK Borders Act attracts a Right of Appeal by virtue of Section 82(2k) of the 2002 Act. That in turn may depend upon whether the power to revoke the deportation order derives from the 1971 Act, and is qualified by the provision of the 2007 Act, or derives from the 2007 Act itself. If the latter, then there is no "immigration decision" which attracts a Right of Appeal because the refusal [is] in respect of a Deportation order under Section 5(2) of the 1971 Act. The refusal would be under Sections 32 and 33 of the UK Borders Act 2007."

8. I have of course reached no final conclusion as the facts of this case. However, given the history I have summarised, it can hardly be controversial to comment that the Claimant's factual case is unpromising. Yet as Burnett J elegantly identified, the question in hand is a legal problem of wide application.

The Legislation

9. The first statutory provisions requiring attention are set out in the Immigration Act 1971 ["the 1971 Act"] as follows:

"Section 3(5) 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 public good;

….

(6) Without prejudice to the operation of subsection (5) above, a person who is not [a British Citizen] shall also be liable to deportation from the United Kingdom if, after he has attained the age of 17, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court …..

Section 5(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 …….

(2) A Deportation order against a person may at any time be revoked by a further order of the Secretary of State …….."

10. The Nationality, Immigration and Asylum Act 2002 ["the 2002 Act"] was amended in terms relevant to this case by the UK Borders Act 2007. In its amended form, the material provisions of the 2002 Act read as follows:

"Part 5 Immigration and Asylum Appeals

Appeal to Tribunal

Section 82 Right of Appeal: general

(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 [The Immigration Act 1971], and

(k) refusal to revoke a deportation order under Section 5(2) of [The Immigration Act 1971]

……

(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.

………………………..

Section 92 Appeal from within the United Kingdom: general

(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.

(2) this applies to an appeal against an immigration decision of a kind specified in Section 82 ……(j)

…………..

(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."

11. The relevant provisions of the UK Borders Act 2007 ["the 2007 Act"] read as follows:

"Section 32 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.

Section 33 Exceptions

(1) Section 32(4) and (5)-

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

……….

(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.

…………

(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the Community treaties.

………….

(7) The application of an exception-

(a) does not prevent the making of a deportation order;

(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4.

Section 34 Timing

……

(4) The Secretary of State may withdraw a decision that section 32(5) applies or revoke a deportation order made in accordance with section 32(5), for the purpose of-

(a) taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971………. and

(b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5)

Section 35 Appeal

……..

(3) [amends section 82 of 2002 Act as set out above by the insertion of subsection (3A)]"

Submissions and Interpretation

12. In the hearing before me, the Secretary of State did not feel able to argue that section 32 of the 2007 Act gives a separate or discrete power to the Secretary of State to make a deportation order. Nor is it argued that the 2007 Act empowers the Secretary of State to revoke a deportation order. It is conceded that the proper analysis is that an order for the deportation of "foreign criminals", or an order for the revocation of such a deportation order, are made under the 1971 Act. In my judgment, this concession is both proper and inevitable. The language of Sections 32 and 33 are not such as to set up a fresh power to deport or revoke an order. Rather, the language of the 2007 Act circumscribes the exercise of the power to deport or to revoke a deportation order, the orders themselves being made under the 1971 Act. So for example, Section 32(5) does not read "the Secretary of State must deport a foreign criminal" and subsection (6) does not read "the Secretary of State may revoke a deportation order made in accordance with subsection (5) but shall not do so unless …….". Rather, Section 32(6), in employing the phrase "a deportation order made in accordance with subsection (5)," confirms that the 2007 Act sets express limits on the exercise of already existing powers. The same implication arises from the phrase "made in accordance with Section 32(5) of the [2007 Act]", imported into Section 82 of the 2002 Act.
13. It follows that a decision to deport a "foreign criminal" made in accordance with the provisions of the 2007 Act is, on the face of it, a decision to make a deportation order under Section 5(1) of the 1971 Act. Likewise, a refusal to revoke a deportation order made in accordance with Section 32(5) of 2007 Act also constitutes a "refusal to revoke a deportation order under Section 5(2) of the 1971 Act". Without more, a decision to deport a "foreign criminal" or a refusal to revoke such an order would be "immigration decisions" within the meaning of Section 82 of the 2002 Act, bringing a right to appeal to the Tribunal in respect of such decisions.
14. Section 92 precludes an in-country appeal "unless [the] appeal is of a kind to which this section applies". S92(2) states that the section does apply to an immigration decision of a kind specified in section 82(2)(j) – ie a decision to make a deportation order. It is to be noted that S92(2) does not grant a similar right of appeal in-country to a decision under s82(2)(k) – a refusal to revoke a deportation order. Thus, under these provisions of the 2002 Act, there is a distinction between the decision to deport, and the refusal to revoke a deportation order: the former gives rise to an automatic in-country appeal, and the latter does not.
15. That distinction is abolished if s92(4) applies. Where the individual has made an asylum claim or a human rights claim whilst in the UK and appeals against "an immigration decision", then "this section also applies" – ie there is an in-country right of appeal. Both the decision to deport and the refusal to revoke such a decision are "immigration decisions" for the purpose of this Part of the Act (s82(2)).
16. These provisions make logical sense. Before considering the effects of the amendments introduced by the 2007 Act, the legislation had the following consequences: an appeal against the making of a deportation order was in-country, but an appeal against a refusal to revoke a deportation order was not, unless the individual had claimed asylum or made a human rights claim in the UK: if such a claim had been made, then the appeal was in-country whichever "immigration decision" was being appealed.
17. The next step is to look at the effects of Section 82(3A) of the 2002 Act, introduced by the 2007 Act.
18. The provisions of Section 82(3A) set out above disapplies Section 82(2)(j) from being "a decision to make a Deportation order which states that it is made in accordance with Section 32(5) of the [2007 Act]". Section 82(3A) goes on to state that the decision that Section 32(5) of the 2007 Act applies (i.e. that the individual is a "foreign criminal" who must be made the subject of a deportation order unless a relevant exception applies), is itself an immigration decision. Hence the amended statute has the effect that the decision "that the 2007 Act applies" is an immigration decision, but the making of the consequent deportation order is not. The consequence is that by operation of s92(4), there is an in-country right of appeal for the person who has made an asylum or human rights claim in the UK against the decision that s32(5) applies ("is he a foreign criminal?") but not against the deportation order which must follow, (unless an exception applies).
19. Section 82(3A) does not disapply Section 82(2)(k). On the ordinary meaning and interpretation of the statute, a refusal to revoke a deportation order "made in accordance with" Section 32(5) of the 2007 Act, remains an "immigration decision". If the person has made an asylum claim or a human rights claim, then there is a right to an in-country appeal derived from s92(4).
20. Parliament could very easily have removed this right of appeal, for example by a slightly amended s82(3A), reading "Subsection (2)(j) does not apply to a decision to make a deportation order, and subsection (2)(k) does not apply to a refusal to revoke a deportation order, where the deportation order states that it is made in accordance with section 32(5) of the UK Borders Act 2007…"
21. Section 32 of the 2007 Act gives no express power to 'disapply' the provisions of the section. Indeed, as we have seen, there is an obligation on the Secretary of State to make a deportation order if the relevant conditions are fulfilled. Again, there is an express preservation of the power to revoke such an order, whilst the person is inside the UK, if an exception (or section 34(4)) applies. It will be remembered that Section 32(6) of the 2007 Act limits the power of the Secretary of State to revoke a deportation order made in accordance with subsection (5). There are three circumstances in which the Secretary of State may revoke such a deportation order. The first is where the Secretary of State thinks that an exception under Section 33 applies.
22. Exception 1 arises where removal of the foreign criminal in pursuance of Deportation order would breach "a person's convention rights or the United Kingdom's obligations under the Refugee Convention". Hence, where removal would breach convention rights or override an asylum claim, the Secretary of State may revoke a deportation order. Refusal to do so would usually on the face of it, be "an immigration decision where the appellant had made an asylum or human rights claim whilst in the United Kingdom". Indeed on first principles it is hard to see how Exception 1 could ever apply if the appeal were not in-country, since otherwise the individual would always be deported before the question of convention rights or asylum could be tested on appeal. Exactly the same point arises in relation to Exception 3.
23. Section 33(1) does state that section 32(4) (the statutory inference that deportation for a "foreign criminal" is conducive to the public good) and section 32(5) (the obligation to make a deportation order) "do not apply" where an exception applies. It seems to me this is not a power to disapply, but a recitation of factors which may mean the subsections do not apply, and which must no doubt be considered when the Secretary of State is taking " a decision [whether] section 32(5) applies".
24. Consideration of section 32 of the 2007 Act makes it plain that the decision as to the application of Section 32(5) on the one hand, and the revocation of a deportation order made in accordance with subsection 5 on the other hand, are discrete matters. A person either does or does not satisfy the definition of "foreign criminal" within section 32(1)-(3). Section 32(4) makes it plain the deportation of a foreign criminal is conducive to the public good, although that provision must be read beside Section 33(7)(v) which provides that where an exception applies there is no remaining assumption that the deportation of the person is (or is not) conducive to the public good. The provisions taken together make it clear that the Secretary of State may still choose to deport a "foreign criminal" where an exception applies. Thus even where removal would breach a person's convention rights or the United Kingdom's obligations under the Refugee Convention, a deportation order may be made, presumably on the basis that the public good outweighs the individual's rights in a proportionate way.
25. It is not necessary to work through all of the hypothetical factual bases to conclude that the "disapplication" of Section 32(5), and the decision whether or not to revoke a deportation order made in accordance with subsection 5, are separate decisions. No doubt in the great majority of cases they will be very closely connected and they do each depend upon the individual demonstrating a relevant Exception. However there seems to me to be a clear enough scheme: [1] a decision by the Secretary of State as to whether the person concerned is a "foreign criminal" [2] a decision as to whether, by reference to an Exception subsections 32(4) and 32(5) do not apply, even though the person is a "foreign criminal". No doubt in reaching her decision, the Secretary of State must consider all those matters. If the answers to those questions are [1] "yes" and [2] "no", then the Secretary of State must make an order to deport "in accordance with" section 32(5).
26. She still has a power expressly reserved to revoke such an order, if it appears after all that an exception applies. The natural meaning of the term "revoke" must surely make it the apt word when the Secretary of State is asked to look again, once an order has been made. And as we have seen, by reason of s82(k), a refusal to revoke such an order is an "immigration decision" for the purposes of section 92(4), of the 2002 Act.

The defendant's submissions

27. The Defendant's position is summarised in a number of key propositions, set out in her written submissions. Where deportation orders are made "under the automatic regime established by" the 2007 Act:

"further representations submitted by an applicant after a decision that s32(5) applies"

and a deportation order is made:

"will be treated [emphasis added] as representations that section 32(5) of the 2007 Act should not apply – not as an application to revoke the automatic deportation order…Therefore, a rejection of those representations is not a 'refusal to revoke' under s82(2)(k) of the 2002 Act. As there is no 'immigration decision' no [in-country] right of appeal flows from that".

In plainer language, if an applicant asks for a deportation order to be revoked, that will be treated as a representation that s32(5) does not apply, thus avoiding an in-country right of appeal. Moreover, in a case where the applicant is in the UK,

"if the Defendant considers that s32(5) no longer applies as a result of matters raised in the further representations, she will revoke the automatic deportation order…".

So again in plainer language, where an Applicant asks for a revocation of the deportation order, that will be treated as a representation that s32(5) no longer applies, avoiding an in-country right of appeal, unless and until the Defendant agrees there is merit in the representations, at which point it will be treated as a successful application to revoke the order.

28. On the other hand, if the Applicant has left the country "further representations will be treated as an application to revoke [emphasis added] the automatic deportation order under s592) of the 1971 Act, the power to revoke at this point being unrestricted by the provisions of …the 2007 Act.".
29. Also in those written submissions, the Defendant states that: "The expectation is that those who are subject to an automatic deportation order will exercise their initial right of appeal from abroad. That is intended to be the 'default' location of the deportee during an appeal against a decision that section 32(50 applies. It is in this context that the Secretary of State's power to revoke automatic deportation orders should be viewed." There is no further real explanation or basis for the expectation, intention or context recited.
30. All of this argument overlooks the fact that there is preserved in the 2007 Act a power to revoke an automatic deportation order in respect of an applicant who remains within the UK. The power is circumscribed but it is precisely focussed on those whose asylum claims or human rights claims are in question and have been raised while the subject is present in the UK. No doubt many such claims will be raised on a spurious basis and will be rightly rejected at first instance and on any appeal. However, some will be genuine and well-founded. If the Secretary of State makes an error and rejects such a well-founded application to revoke a deportation order, the consequences may on occasion be serious or grave. On the face of the language of the statute, it seems to me a right of appeal in-country is preserved, and it cannot be right that it should be abolished without clear language. Nor can it be abolished as a consequence of a practice of treating an application to revoke a deportation order as something else, whatever "expectation" or "intention" may be in play.
31. I am fortified in that conclusion by the knowledge that there are mechanisms for dealing with spurious claims. As the Claimant has pointed out, the Secretary of State has power under section 94 of the 2002 Act to certify a claim as "clearly unfounded" and under S96 to certify that the matter sought to be raised should have been raised in an earlier appeal, thereby excluding a fresh appeal.
32. For these reasons, in my judgment a refusal to revoke a automatic deportation order made in accordance with the 2007 Act is an immigration decision within s82(2)(k) of the 2002 Act, giving rise to an in-country appeal, if the condition in s92(4) of the 2002 Act is fulfilled. It is fulfilled here. Accordingly, I grant the Claimant's application for judicial review of the decision of 13 October 2010. I invite submissions from the parties as to the appropriate consequential orders. The Order of Burnett J of 1 November 2010 restraining the removal of the Claimant from the United Kingdom is continued until further order.