England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		30 July 2013

1. MR JUSTICE JEREMY BAKER: Qing Hua Pryor (hereafter known as "the claimant") is 42 years of age, having been born on 20 October 2070. She is a Chinese national. It is understood that on 17 February 2000 she entered the United Kingdom on a visitor visa. On 22 February 2000, it is contended by the claimant that she made an initial application for asylum, which was refused by the Secretary of State for the Home Department (herein after referred to as "the defendant"). On 22 February 2005, the claimant married a British citizen called Anthony Pryor. On 2 September 2008, at Chelmsford Crown Court following a trial, both she and her husband were convicted of three counts of keeping a brothel for use for prostitution, contrary to section 33A(1) of the Sexual Offences Act 1956, and were sentenced to 18 months' imprisonment.
2. On 11 February 2008, as a result of the claimant's convictions, the defendant intimated that consideration was being given to her deportation. The second application for asylum, dated 20 March 2008, was made by the claimant, which was again refused by the defendant on 13 November 2008. However, in the meantime, on 23 October 2008, the defendant gave a written notice to the claimant notifying her of the defendant's decision to make a deportation order, pursuant to section 105 of the Nationality, Immigration and Asylum Act 2002 (hereafter referred to as the "2002 Act").
3. The claimant lodged an appeal against the refusal of her second claim for asylum and the making of the decision to deport her. Those appeals were heard by the Asylum and Immigration Tribunal and dismissed in a decision promulgated on 23 April 2009.
4. Before progressing the history of events in this case, it is necessary to mention that when the case was presented to the court on 20 June 2013 it was apparent, from the various chronologies provided by the parties, that there was a good deal of confusion concerning those events. It appears that potentially significant parts of the paperwork were missing, such that the factual and legal basis upon which decisions had been made was unclear.
5. It had been assumed by those representing the parties that the defendant's decision to make a deportation order had been made under section 3(5) of the Immigration Act 1971 (hereafter referred to as the "1971 Act"), without recourse to the automatic deportation provisions contained in section 32 of the UK Borders Act 2007 (hereafter referred to as the "2007 Act"). Indeed it would appear that it was on this basis that the Asylum and Immigration Tribunal proceeded to consider the appeals. However, at a late stage of the hearing before the court a document, dated 3 February 2012, was produced, which appeared to suggest that the defendant's decision to make a deportation order had been made in accordance with the 2007 Act.
6. In the light of this state of affairs I gave leave for the defendant to file further evidence in the form of a witness statement in order to provide clarification on the history of the events. The further witness statement, which was forthcoming from the defendant, comprised that of Philip Muirhead, dated 5 July 2013. He has clarified that the defendant's decision to make a deportation order was made under section 3(5) of the 1971 Act. The reason for this is that although there were transitional provisions, which would have enabled the defendant to have recourse to section 32 of the 2007 Act in this case, this was not widely appreciated by those acting on behalf of the defendant at that time. This only became clear following the case of Rashid Hussein v Secretary of State for the Home Department [2009] EWHC 2429 (Admin).
7. In relation to the claimant's application for asylum, the Tribunal noted that if the first application was made it appears to have been made in a false name and date of birth. Moreover, it appears to have been made on a false basis, namely the claimant had been a member of the Falun Gong, whereas her second claim for asylum was made on the basis that while she was not a member of the Falun Gong she had been persecuted by the Chinese authorities as a result of their belief that she was a member of that organisation. The Tribunal did not consider that the claimant was a credible witness and found that her claim for asylum was unfounded.
8. Her appeal against the decision to make a deportation order was based on Article 8 grounds concerning the family life which she had established with her husband in the United Kingdom. The Tribunal found that if the claimant was deported her husband could apply for permanent residence in China. The Tribunal considered that the evidence, which suggested that due to his convictions the Chinese authorities might refuse his application, was untested. In any event, the Tribunal considered that the claimant's relationship with her husband could be continued through visits, phone calls and other means of communication.
9. In this regard, although the Tribunal did not state in terms that those visits were ones which it envisaged would be made by the husband to the claimant in China, it is implicit, from the context of the case, given both the issues before the Tribunal and the fact that the result of the dismissal of the appeal would entail the claimant's deportation with all the consequences for her return that that would envisage. The Tribunal considered that the claimant's convictions were so serious that as a result of public policy deportation was required. On this basis the Tribunal determined that the interference with the claimant's Article 8 rights was both lawfully justified and proportionate.
10. The claimant made an application for reconsideration of the Tribunal's decision, which was refused on 16 July 2009, the Senior Immigration Judge observing, among other matters, that "the Tribunal noted that there was no reason why your second husband could not accompany you to China on return". Further application for reconsideration was refused by the High Court on 27 July 2009 and the claimant's appeal rights became exhausted.
11. In the meantime Mr Pryor had applied for a visitor visa to China, which was refused on 7 August 2009. This prompted the claimant to make a number of applications to the defendant to allow her to remain in the United Kingdom on Article 8 grounds, all of which appear to have been based on her altered circumstances, namely the refusal of her husband's application for a visitor visa to China. One of these applications was dated 12 January 2011, whilst another was dated 8 February 2012.
12. Following the claimant's detention on 27 February 2012 under the Immigration Rules pending her removal, the earlier of these applications was considered by the defendant and refused in her letter dated 29 February 2012. In that letter the defendant notified the claimant of her determination that the further evidence provided by the claimant did not amount to a fresh claim within the meaning of section 353 of the Immigration Rules. She stated that:

"While the UK Border Agency would note that relocation to a foreign country might entail practical difficulties for your client and her husband, no evidence has been submitted which would indicate that it would be either impossible or exceptionally difficult for them to do so."

In those circumstances the defendant concluded that:

"Your client's situation has not materially altered, either by a change of circumstances since the order was made or by fresh information coming to light which was not before ... the Asylum and Immigration Tribunal ..."

13. On 1 March 2012, the defendant made a deportation order and directions were set for her removal on 23 March 2012. However, it transpires that on 14 March 2012 the defendant revoked the deportation order. At the earlier hearing it was not entirely clear as to why this step had been taken. What was apparent was that on 20 March 2012 the defendant notified the claimant that an application for leave to remain, postmarked "29 February 2012", was declined on the basis of the wrong form having been used. Moreover, on 26 March 2012, the defendant notified the claimant that a letter sent by her solicitors, dated 14 March 2012, was understood to be an application for reconsideration of the claimant's position on Article 8 grounds. This letter was drafted in very similar terms to the previous letter postmarked "29 February 2012".
14. The terms in which the defendant determined that the further evidence provided by the claimant did not amount to a fresh claim were in identical terms to the previous letter. However, it was in this further letter that the defendant disclosed that the original deportation order had been revoked. Although a clear explanation for the revocation was not provided in this letter, there was some suggestion in paragraph 14 that it may have been because the deportation order had been made in ignorance of the claimant's recent application for leave to remain.
15. The position has now been clarified in the witness statement of Philip Muirhead. It appears that the claimant's application to allow her to remain in the United Kingdom on Article 8 grounds, dated 8 February 2012, was that postmarked "29 February 2012". Therefore, although prior to the making of the deportation order on 1 March 2012 the defendant had refused the application dated 12 January 2011, she had not by then determined the claimant's application dated 8 February 2012. According to Philip Muirhead it is the policy of the defendant to determine all outstanding applications which could act as a "barrier to removal" prior to making a deportation order. Further, that if it is discovered that a deportation has been made in ignorance of such an application, and which has therefore not been determined, then it is the practice of the defendant to revoke the deportation order in order to determine the outstanding application. Thereafter, if the outstanding application was determined against the applicant, the defendant proceeds to make a further deportation order.
16. In the present case Philip Muirhead states that the deportation order of 1 March 2012 was made in ignorance of the claimant's application, dated 8 February 2012, such that when the latter application was discovered, and it was appreciated that it had not been determined, the defendant revoked the deportation order. Thereafter once the application had been determined against the claimant a further deportation order was made. So it was that on 29 March 2012 the defendant made a second deportation order which was served on the claimant, albeit that on 10 April 2012 the claimant was released on bail.
17. It is of note that on 27 April 2012 the Chinese authorities' refused a second visitor visa to Mr Pryor. In the meantime, on 15 March 2012, the claimant made an application under title "CO/2769/2012" for judicial review of the defendant's decision of 29 February 2012, on the basis that it was Wednesbury unreasonable and that, inter alia, it failed to properly acknowledge and take into account a change in the claimant's circumstances brought about by the Chinese authorities' refusal of the visitor visa to Mr Pryor.
18. The defendant's summary grounds of defence denied that the decision was unreasonable contending that the Tribunal had already envisaged that family life could be maintained through visits between the claimant and her husband. The Upper Tribunal refused permission to apply for judicial review, the judge observing that although Mr Pryor might not be able to visit China there was no reason why family life could not be maintained by means of visits between them in a third country.
19. By the time of the oral renewal for permission, which took place on 22 June 2012, the claimant decided, in addition to her ground of challenge in relation to the decision dated 29 February 2012, she would also seek to challenge the vires of the second deportation order dated 29 March 2012 on the basis, inter alia, that following the revocation of the first deportation order the defendant could not lawfully make a further deportation order without making a further decision to make a deportation order, giving rise to further appeal rights for the claimant.
20. At the oral renewal of the application for permission it was agreed between the parties that if this point was to be pursued by the claimant it would be more suitable to be dealt with in the Administrative Court. Therefore the application was withdrawn and the present claim for judicial review was made on 29 June 2012. Permission to apply for judicial review was subsequently granted by Burnett J on 23 January 2013.
21. Turning then to the claimant's submissions. The first of the claimant's grounds is based upon the submission that either upon the making of a deportation order, or its revocation, the previous decision to make such an order ceases to have effect such that if the deportation order is revoked for any reason the defendant is precluded from making another deportation order without first making another decision to make such an order, thus giving rise to a right of appeal. Applying this argument to the present case, as the defendant did not make another decision to make a deportation order following her revocation of the first deportation order, she had no power to make a second deportation order, which is therefore of no effect.
22. In support of this ground the claimant suggests that the defendant's power to revoke a deportation order under section 5(2) of the 1971 Act assumes that there will be an application by an individual for revocation on the grounds set out in paragraph 390 of the Immigration Rules, rather than conferring any power on the defendant to do so of her own motion. It is also pointed out that the power to revoke a deportation order under section 34(4)(b) of the 2007 Act is expressed to be for the purpose of "subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5)", which in turn gives a right of appeal as such a decision is an immigration decision for the purposes of section 32(3A)(a) of the 2002 Act.
23. It is submitted that if the revocation of a deportation order does not have the effect of extinguishing the life of the original decision to make such an order, then it would leave the claimant liable to be detained under paragraph 2(2) of Schedule 3 to the 1971 Act. The claimant relies upon R (George) v the Secretary of State for the Home Department [2013] 1 WLR 1319, wherein Sir Stephen Sedley referred to the reinstatement of an individual's leave to remain after the revocation of a deportation order as having "... the important consequence that an appealable immigration decision comes into being. This is orderly and respects the rule of law ... The alternative is the state of legal limbo..."
24. It is also pointed out that an individual against whom a deportation order has been made has a right of appeal in the event that the defendant refuses to revoke that order; the refusal being an immigration decision, pursuant to section 82(2)(k) of the 2002 Act. It is suggested that if the defendant could make a further deportation order in the absence of a further decision to make such an order, then this could subvert the appeal process and leave those whose leave to remain had revived, or those who left the United Kingdom, in a precarious position.
25. The second ground is in the alternative, namely that if the defendant did have power to make a second deportation order in the absence of a second decision to make a deportation order, then the making of the second deportation order was in itself an immigration decision within the meaning of section 82(2)(j) of the 2002 Act, giving rise to a right of appeal. In oral submissions the claimant expanded his submission by suggesting that if the making of the second deportation order was not an immigration decision, then the court should hold that the defendant's decision, dated 26 March 2012, was such a decision.
26. The third ground maintains the claimant's argument in the original judicial review claim, that the decision of the defendant not to treat her further representations under Article 8 as a fresh claim was Wednesbury unreasonable. In this regard it is submitted that in the context of Article 8 paragraph 24 of the defendant's decision letter of 29 February 2012 discloses that the defendant was using too high a threshold. It was submitted that this was not in accordance with paragraph 353 of the Immigration Rules, as explained in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 and WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
27. Turning then to the defendant's submissions. The defendant submitted that, as a matter of statutory construction, she was empowered to revoke a deportation order either after considering an application from an individual, or of her own motion. Moreover, once having done so, where it was appropriate to do so, she was entitled to make a further deportation order without having to remake the decision to make such an order, the original decision remaining extant. The wording of section 82 of the 2002 Act was clear, such that the making of a further deportation was not an immigration decision giving rise to a right of appeal, nor, in the context of this case, could the letter of 26 March 2012 reasonably be construed as being a decision to make a deportation order giving rise to appeal rights.
28. She submitted that there was no prejudice to the individual arising out of this situation as the person would already have been provided with appeal rights at the earliest stage of the decision-making process, and the individual would retain the ability to make an application to the defendant to revoke the order with consequential rights of appeal. Moreover, any alleged misuse of her powers would in the event be subject to review by the court. She submitted that if the original decision to make a deportation order ceased to have effect upon the making of the deportation order, then this would prevent replacement orders which, for any reason, were defective.
29. In relation to ground 3, the defendant submitted that even if, which was not conceded, the refusal by the Chinese authorities to issue Mr Pryor with a visitors visa was new material, the defendant was entitled to consider that the claimant's submissions were not significantly different from previous ones on the basis that it would not have created a realistic prospect of success. In this regard the defendant was entitled to have taken into account all of the material which the Tribunal considered when reaching its original decision. In these circumstances her decision is lawfully justified.
30. I turn then to look at the statutory framework. Section 3(5) of the 1971 Act provides:

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

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

Section 5(1) of the 1971 Act provides:

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

Section 5(2) of the 1971 Act provides:

"A deportation order against a person may at any time be revoked by a further order of the Secretary of State..." Section 82 of the 2002 Act provides:

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

(2) In this Part 'immigration decision' means—

...

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

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

Section 79 of the 2002 Act provides:

"(1)A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order—

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending.

...

(3) This 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.

(4) But a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies."

31. The Immigration (Notices Regulations) 2003, which are made pursuant to section 105 of the 2002 Act, provides for the giving of written notice by the Secretary of State to an individual in respect of whom a decision to make a deportation order is made by the Secretary of State. Paragraph 2 of Schedule 3 to the 1971 Act provides:
32. . . . . . .

"(2)Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."

. . . . . .

Once a deportation has been made:

"(5)A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State."

Paragraph 390 of the Immigration Rules provides:

"An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) the grounds on which the order was made;

(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances."

Section 32 of the 2007 Act provides:

"(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.

...

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, 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 ...".

Section 33 of the 2007 Act provides: "...

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

(a) a person's Convention rights ..." Section 34 of the 2007 Act provides:

"...

(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 -

...

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

Paragraph 353 of the Immigration Rules provides:

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

(i) had not already been considered; and

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

33. I turn then to consider the submissions made by the parties. Although the revocation of a deportation order made by the defendant is normally likely to be made in response to an application by the individual against whom the order was made, in my judgment there is nothing in the statutory scheme which limits the defendant's power to revoke a deportation order under section 5(2) of the 1971 Act to such a situation. Therefore, in so far as the claimant is concerned, there can be no challenge to the lawfulness of the defendant's decision to revoke the original deportation order on 14 March 2012.
34. However, having done so, the question arises as to the lawfulness of the second deportation order made by the defendant on 29 March 2012. Although section 5(1) of the 1971 Act only refers to the making of a deportation order, it is apparent from the scheme provided by the combination of the 1971 Act and the 2002 Act that a clear distinction is made between a decision to make a deportation order, and the making of the deportation order itself. Whilst the former gives rise to an appealable immigration decision, the latter does not. Indeed the latter cannot be made whilst an appeal could be brought against the former decision. Thus the two events are inevitably separated in time from each other.
35. In these circumstances the claimant submits that the second deportation order is unlawful on the basis that the original decision to make the order had expired and no new decision had been made; the expiration of the original decision having taken place either on the making of the original deportation order, or on its revocation. On the other hand, the defendant submits that the original decision to make a deportation order survived both of these events such that no new decision to make a deportation order was required and the second deportation order is lawful.
36. In the context of the factual situation which arises in their case, there is some superficial attraction in the defendant's submissions in that it is apparent that the reason why the defendant decided to revoke the first deportation order had nothing to do with any application made by the claimant for revocation. Nor had there been, so far as the defendant is concerned, any significant change of circumstances which led her to believe that the order was inappropriate; rather it was to allow her to consider the claimant's application, dated 8 February 2012, which had not previously come to her attention.
37. On the other hand, the claimant submits that if the defendant's submission is correct then it would apply to other situations, including one where an individual has made a successful application for revocation of the deportation order; whether that was revocation by the defendant or the tribunal on appeal. If the defendant's argument is correct then it must be envisaged that the defendant would, in those circumstances, be able to make a further deportation order without first having made a further appealable decision to make such an order. Thus effectively reversing her own decision or ignoring that of the Tribunal. Although the defendant in further written submissions states that it would not be rationally conceivable for a decision to be made on an arbitrary basis, the concession is made that in such an event recourse to judicial review would be required.
38. It is further submitted by the defendant that if a new decision were required following the revocation, prior to the making of the new order, then this would require a further appealable decision to be made in a situation where, for example, the only reason for the revocation was a defect in the original order. However, this is, to my mind, not a valid argument in that if the original order was defective, then, depending upon the nature of the defect, the original order is likely to have been of no effect as would be a nullity; such that, its revocation in that situation would not be required.
39. In the present case, however, the defendant chose to revoke the original deportation order. In the course of the hearing the issue as to the necessity of the defendant having taken this course of action was queried. Even if there is some rationale in delaying the making of a deportation order until no outstanding applications from the proposed deportee have been determined (a matter which it is conceded in the defendant's recent written submissions may be based on an erroneous understanding of the legislation and was conceded at the resumed hearing) where, as in the present case, the deportation has already been made, it is difficult to understand the purpose of revoking an order in order to determine an application of which the defendant had been unaware. That was certainly not required.
40. Indeed, as is submitted on behalf of the claimant in the course of the resumed hearing, and as foreshadowed in his second skeleton argument, the scheme of the legislation is one which provides for all of the steps which are required in the making of a deportation order, and therefore ought not to be one which can be subject to a decision by the Secretary of State, such as has been made in this case, which could only be remedied by way of judicial review.
41. In that regard it is pointed out that under section 79(1) of the 2002 Act it is provided that a deportation order may not be made, or implemented, under section 5(1) of the 1971 Act where a person has a right of appeal pending or could be brought. It is highlighted that in contradistinction, there is nothing in the scheme of the Acts which precludes the making of a deportation order after a decision has been made, but before any outstanding claims have been determined.
42. In my view, in the two respects that the defendant seeks to submit, that there would be detriment to the good administration of the immigration system if the claimant's submission is correct, is not, in my judgment, in accord with reality. On the other hand, it does appear that there is merit in the submission of the claimant that in the situation posited on her behalf an individual who had the benefit of a meritorious revocation would, of the very least, be in a position of uncertainty liable to the making of a further deportation order and liable to detention under paragraph 2(2) of Schedule 3 to the 1971 Act.
43. In these circumstances the submission of the defendant that this would simply not arise, or if it did arise arbitrarily it would be open to judicial review, is not, to my mind, a satisfactory answer. Furthermore, although arising out of the 2007 Act not only is the distinction between what is essentially a decision to make a deportation order and the making of a deportation order maintained, but the power under section 34(4)(b) to revoke a deportation order is expressed to be for the purpose of, inter alia, making a new decision, or taking action under section 3 of the 1971 Act, which in turn would give a right of appeal. It may be considered anomalous that, absent clear provisions to the contrary, an individual whose deportation order is revoked under the provisions of the 1971 Act is in a less advantageous position than the one who is dealt with under the2007 Act, especially where, as here, but for the misunderstanding out of the application of the latter statute, the claimant's case would have been dealt with under the 2007 Act.
44. To my mind, and having regard to the construction of the 1971 Act, the decision to make a deportation order has to be distinguished from the making of the deportation order itself. It seems to me that once a deportation order has been revoked the decision to make that deportation order falls away. Moreover, as this is a matter of principle, I do not consider that it is affected by the underlying motive of the defendant's decision to revoke the deportation order.
45. In the event that the original decision to make a deportation order does not survive revocation of the subsequent deportation order, it matters not whether its extinguishment is caused by the making of the deportation order or its revocation, albeit on this I tend to the latter view. In any event, in order to make a further lawful deportation order, after the revocation of the former one, I consider that a further decision to make such an order is required. If none has been made, then it seems to me that any subsequent deportation will not have been made lawfully.
46. Although in the light of my conclusion in relation to the first matter it is not necessary to deal with the remaining grounds which have been raised, in deference to the arguments which have been made I will consider these at this stage. It is submitted, in the alternative, that either the making of the further deportation decision or the defendant's decision, dated 26 March 2012, was an appealable immigration decision. In my judgment neither submission can be sustained. In relation to the further deportation order not only is it apparent on the evidence that this was not such a decision, but there was no compliance with any of the statutory notice provisions which are mandatory in character. In so far as the latter decision is concerned, this, in effect, was a repetition of the previous application and decision, which had been determined by the defendant on 29 February 2012, and was not a further immigration decision within section 82(1) of the 2002 Act.
47. Turning to the ground which was raised in the original judicial review claim, it is necessary, first of all, to appreciate the task which the defendant is obliged to undertake where an application is said to raise a fresh claim. In the context of an asylum claim this is set out in the judgment of Buxton LJ in WM (DRC) v The Secretary of State for the Home Department and The Secretary of State for the Home Department v AR (Afghanistan) [2006] EWCA (Civ) 1495 where at paragraph 6 he said:

"He has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353 (i) according to whether the content of the material has already been considered. If the material is not 'significantly different' the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgment will involve not only judging the reliability of the new material, but also judging the outcome of the tribunal proceedings based on that material. ..."

It is also important to appreciate the nature of the test which it is necessary for the court to apply when considering the defendant's position not to treat the claimant's further representations under Article 8 as a fresh claim. That was also addressed by Buxton LJ at paragraph 11:

"... The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see s7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State in making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

48. These questions have to be considered on the basis that the defendant's decision can only be impugned if it is Wednesbury unreasonable. Moreover, in the context of this case the focus of attention is upon the consideration of the claimant's Article 8 rights. It is clear that the original Tribunal's decision was primarily based upon the claimant's husband being able to obtain permanent residence in China, a matter recognised by the Senior Immigration Judge. It is correct that as an alternative the Tribunal considered that family life could be maintained through other means of communication, but even this was predicated on the basis that the claimant's husband would be able to visit her in China.
49. It was subsequent to these decisions that it became clear, firstly, on 7 August 2009 and latterly, on 27 April 2012, that because of the husband's criminal convictions he would be unable to obtain either a permanent or visitors visa to China. It is against this background that the defendant's decision not to treat the claimant's subsequent application for leave to stay on Article 8 grounds has to be considered. In reaching her decision it is not entirely clear as to whether the defendant accepted that the refusal of the husband's claim for a visitor visa amounted to new material which was significantly different than already submitted. The fact that she used the words, "Your client's situation has not materially altered, either by a change of circumstances since the order was made or by fresh information coming to light..." tends to suggest that she did not do so.
50. If that is the situation then that, to my mind, is a conclusion which is unsupported by the evidence in that although it was being suggested in the Tribunal proceedings, on behalf of the claimant, that her husband would be unlikely to obtain a visa to reside in China, that suggestion was dismissed by the Tribunal as being untested with the consequence that, as noted, the primary basis upon which the Tribunal considered that their family life could be maintained would be by the husband being able to permanently reside with the claimant in China, indeed, even in the alternative, that he would be able to do so by visiting her there.
51. In relation to the question as to whether the new material taken together with the old created a realistic prospect of a Tribunal considering that there would be a disproportionate breach of the claimant's Article 8 rights to family life if she was to be deported, it appears that the defendant's answer was that whilst relocation to a foreign country might entail practical difficulties it would not be impossible, or exceptionally difficult. (In this regard it was confirmed at the hearing of this claim that the reference to a foreign country was in fact a reference to China: a matter which may have been misconstrued by the Upper Tribunal in the original claim for judicial review); such that, having regard to her immigration history and criminal convictions there was no realistic prospect of the Tribunal considering that there would be a disproportionate breach of the claimant's family life.
52. If this was the defendant's answer to this question this court has to consider whether it has been shown that her decision was Wednesbury unreasonable.
53. In my judgment, there can be no realistic doubt but that the evidence of the refusal of the Chinese authorities to grant the husband a visitors visa amounted to material which was significantly different to that which had been before the Tribunal. In the event that the claimant is deported to China it effectively precludes the continuation of the physical relationship between the claimant and her husband, and its continuation by other means would be limited to non-contact communication. In this regard, I am reminded of the observations of Lord Bingham in EB (Kosovo) v the Secretary of State for the Home Department [2009] 1 AC 1159 at paragraph 12, where he said:

"... It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal ..."

54. Although there does not appear to have been any express finding as to the quality of the relationship between the claimant and her husband, I note that they have been married since 2005 and there does not appear to be any challenge to its nature and permanency. I, of course, bear in mind that the defendant was entitled to take into account not only the immigration history of the claimant, but also her criminal convictions. However, in view of the likely consequences of a deportation order on the ability of the claimant to have a meaningful continuation of her relationship with her husband, I have reached the conclusion that the decision of the defendant not to treat the claimant's application as a fresh claim was, in these particular circumstances, Wednesbury unreasonable.
55. By way of conclusion, as the second deportation order of 29 March 2012 appears to have been made in the absence of a subsisting decision by the defendant to make such an order, the deportation order was made unlawfully and is liable to be quashed. Further, as I have concluded that the defendant's decision on 29 February 2012 was one that was Wednesbury unreasonable, that too is liable to be quashed [also is the decision of 26 March]. That will be the order of the court, in due course, in relation to the orders of 29 March 2012 and the decision dated 29 February 2012.
56. MR GOODMAN: Just one point of clarification. My Lord referred to the decision of 29 February. There was the further decision of 26 March, which was also the refusal of the fresh claim, which should be referred to as being quashed as well.
57. MR JEREMY BAKER: I think that must follow.
58. MR GOODMAN: I therefore seek my costs in consequence both of this claim and of the first claim for judicial review. Unless there is any dispute about that I will explain further the reasons why that is appropriate, but it certainly is on the history of this. I will just ascertain whether it is necessary to address you further.
59. MR JEREMY BAKER: I do not anticipate there will be a dispute, but I will certainly listen.
60. MISS OLLEY: I do not resist costs on principle. I am checking to see if there is anything in relation to the judicial review claim that I need to be aware of.
61. MR JEREMY BAKER: I understand.
62. MISS OLLEY: It appears not, my Lord.
63. MR JEREMY BAKER: Then I will so order.
64. MR GOODMAN: Can I ask, therefore, if those costs can be assessed, if not agreed? We will endeavour to agree them on the summary basis between the parties.
65. MR JEREMY BAKER: Thank you very much. Are there any other matters?
66. MISS OLLEY: Nothing further, my Lord.
67. MR JEREMY BAKER: Can I express my thanks to you both for your helpful and clear submissions? Miss Olley, I have some sympathy for you having been placed in a somewhat invidious position.
68. MISS OLLEY: I am grateful, my Lord.