Easter Term
[2014] UKSC 28
On appeal from: [2012] EWCA Civ 1362
JUDGMENT
R (on the application of Fitzroy George) (Respondent) v The Secretary of State for the Home Department (Appellant)
before
Lord Neuberger, President
Lord Clarke
Lord Carnwath
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
14 May 2014
Heard on 14 March 2014
Appellant Robin Tam QC Jonathan Moffett (Instructed by Treasury Solicitors) |
Respondent Stephen Knafler QC Gordon Lee (Instructed by Sutovic and Hartigan Solicitors) |
LORD HUGHES (with whom Lord Neuberger, Lord Clarke, Lord Carnwath, and Lord Toulson agree)
The statutory provisions for deportation
(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 the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
(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 seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
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, 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.
(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
The final stage is provided for by section 5(5) and Schedule 3, which permits the Secretary of State to give "directions for … removal" of those against whom a deportation order is in force, which directions may stipulate such matters as the manner of removal and form of travel.
i) once the Secretary of State had decided under section 3(5)(a) of the 1971 Act that his deportation would be conducive to the public good, he became "liable to deportation"; the notice served on him in January 2007 warned him of an impending deportation order in consequence;
(ii) at that stage his indefinite leave to remain continued extant but precarious, as it did throughout the 18 months or so following, during which unsuccessful attempts were made to challenge the decision that he was liable to deportation; this is consistent with the general scheme of the immigration appeals system, under which whilst appeals are pending suitable (if varying) provision is made to preserve the position in the interim;
(iii) when in April 2008 the deportation order was made under section 5(1) of the 1971 Act the consequence was that his indefinite leave to remain was invalidated under the closing words of that subsection;
(iv) the immigration judge's ruling in March 2009 that his article 8 rights would be infringed by deportation was made on his appeal against the refusal by the Secretary of State to revoke the deportation order; the consequence is agreed to be that the deportation order was thereby revoked;
(v) he remains liable to be deported, but an order for his deportation cannot be made in his present circumstances because it would entail an infringement of his Convention rights.
The case for revival of indefinite leave to remain
(a) it is said that as a matter of construction, section 5(1) and (2) of the 1971 Act mean that upon revocation the position reverts to the status quo ante, viz the indefinite leave revives;
(b) it is said that the position is made clear by considering other statutes in pari materia, in particular section 76 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act"), and the automatic deportation provisions of the 2007 Act (paragraph 7 above).
Section 5(1) & (2) of the 1971 Act
(i) Draft Immigration Rules were prepared contemporaneously with the passage through Parliament of the 1971 Act (Immigration Rules: Control after Entry (Cmnd 4610) as amended by Cmnd 4792); these were considered by both Houses prior to the completion of the Act's legislative progress; the draft rules included paragraph 58 which stated in terms:
"Revocation of the deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to qualify for admission under the immigration rules".
(ii) That provision was then repeated at paragraph 66 of the substantive Statement of Immigration Rules for Control after Entry (HC 510), which was laid before Parliament on 23 October 1972.
(iii) Every subsequent Statement of Changes in Immigration Rules has contained the same proposition in identical terms, including the current one (1994) (HC 395) at paragraph 392; all have been laid before Parliament pursuant to section 3(2) of the 1971 Act, under the negative resolution procedure.
(iv) Successive editions of Macdonald's Immigration Law and Practice in the United Kingdom from the first (1983) until the current 8th (2010) record this same proposition without question.
If the wording were incapable of contrary reading, an error in its interpretation in the Rules, however long perpetuated, would not reverse its correct construction. But this wording is not clear. Moreover, the successive assumptions in the Rules about its meaning are very relevant when one comes to consider Mr Knafler's second submission, and in particular the terms of section 76 of the 2002 Act, which is the section which persuaded the majority of the Court of Appeal that he was right.
Section 76 of the 2002 Act
The Secretary of State may revoke a person's indefinite leave to enter or remain in the United Kingdom if the person—
(a) is liable to deportation, but
(b) cannot be deported for legal reasons.
A person's leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which he had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply.
This provision cannot be read, in the context of the 1971 Act where it appears, as applying to a person deported under section 5. If it did, there would be no need for section 5(1) to make any provision at all for the deportation order to invalidate the leave to remain. Nor, even if the effect of section 5(2) is to revive a former leave to remain if a deportation order is revoked, could this section bite at removal under the order since the formerly existing leave would at that stage be invalidated by section 5(1) and there would be nothing to lapse.
Section 10 of the 1999 Act
Automatic deportation under the 2007 Act
Conclusion