QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF PRYOR
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Miss Kate Olley (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
"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 ..."
"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."
"(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."
"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."
"... 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 ..."