EO, R (on the application of) v Secretary of State for the Home Department

This is a renewed application made by Mr Ian MacDonald QC for permission to appeal against the refusal of the Administrative Court to give permission to seek judicial review of the Home Secretary’s refusal to revoke a deportation order against the applicant.

The case has the rather remarkable feature that the deportation order not only followed an unsuccessful appeal against it in the Asylum & Immigration Tribunal but was also followed by actual deportation to the United States, of which the applicant is a citizen by birth. He has however been resident in this country, as far as one can tell, since the age of about four. But his deportation was to be to Houston, Texas via Newark, New Jersey; and having been deposited in Newark, New Jersey, the applicant took the opportunity to come back across the Atlantic to Ireland, from where he re-entered the United Kingdom and was apprehended, with the result that he now finds himself in administrative custody pending what one can perhaps call re-deportation.

The proposed deportation is a bleak prospect for him. There can be no doubt about that. His family, which is Nigerian by origin, is apparently not represented there. He has neither relatives nor friends to turn to, and he is a fairly sick man, having a hydrocele condition and sarcoidosis which, although Mr MacDonald has honourably and candidly disavowed any Article 3 claim on the basis of them, are distressing conditions requiring medication which a poor man in the United States is not going to find it easy to obtain. That is part of the background.

The more immediate concerns are these. Without going through the entire history, the Article 8 claim of the applicant was dismissed by a decision of Immigration Judge Wellesley-Cole in November 2007, a decision which I am bound to say I find disturbing not only in the casualness of some of its composition but in particular in its apparent failure to give any, never mind due, weight to the fact that this was an undoubtedly persistent though not a grave offender who had, however, been in this country since the age of four. Much recent Strasbourg jurisprudence makes it clear that where deportation is going to be more in the nature of exile than simply the removal of somebody who has come here and become a public nuisance, it takes very weighty factors indeed to make deportation proportionate. No regard appears to have been paid to this element of the case at all.

But an application for reconsideration was rejected. It was sought to be challenged but the challenge ultimately failed. The result is that the dismissal of the appeal is res judicata. Nevertheless an application was made, as the applicant was entitled to make it, for revocation of the deportation order; and it is of the refusal to revoke the order that judicial review is sought.

The issue is in one sense a relatively narrow one. The ground of revocation is the whole human rights case as it now stands. That includes a daughter of a liaison, born in 2006. There is evidently an ongoing relationship although the liaison itself is not continuing. The contest is not as to whether an appeal lies against the refusal to revoke the deportation order. Ms Frazer for the Home Secretary accepts that an appeal does lie. The question is whether it is to be conducted in-country or out of country. It would be the applicant’s entitlement to conduct it in-country were it not for the fact that the case has been certified as clearly unfounded by the Home Secretary, on page 18 of a very lengthy letter dated 5 November 2009.

But in order to upset the certification of the claim, it seems to me that Mr MacDonald has got to do something which cannot be done, and that is to overset as incorrect or invalid the decision of Immigration Judge Wellesley-Cole. He seeks to do this by focusing on a paragraph on page 8 of the letter to which I have referred, which reads:

“There is nothing in the current representations to lead the UK Border Agency to find against the Tribunal, in its consideration under Razgar and Huang, or to accept any claims that the Tribunal did not apply a correct test with regard to its consideration under Huang.”

So far as one can make sense of that not very elegant paragraph, it appears to be accepting that it is open to the UK Border Agency to overrule a judicial decision of the kind that I have referred to. If that is the belief of the UK Border Agency, the sooner it forgets about it the better. Neither on the Home Secretary’s part nor on an applicant’s part is that a permissible course. What may arise, however, is a fresh case which includes those facts which were before the Tribunal but other facts too, and which calls for and receives a proper reconsideration. That is what we are looking at here.

The Administrative Court however has, first on sight of the papers and secondly on an oral hearing, decided that the case that the claim was not certifiable is unarguable; and I have to say that once one has eliminated the attack, which may be a good attack, on the Wellesley-Cole decision, that is an incontestable decision. It follows that there is not a sufficient ground upon which I can legitimately give permission to appeal against the refusal of the Administrative Court to allow the claim for judicial review to proceed in relation to the refusal to revoke the deportation order.

That, however, may well not be an end of this case. First of all, the appeal can be pursued from abroad and may be so pursued. Secondly, Mr MacDonald tells me that papers are prepared for an application to the Strasbourg Court, which for all I know will include a Rule 39 application, on the basis that the decision which is at the foundation of all that has now followed, namely the Wellesley-Cole decision, is unsustainable in the light of the court’s Article 8 jurisprudence. These are all matters for the future; but since the Home Secretary is represented here, I say, more for Ms Frazer’s than for Mr MacDonald’s ears, that I would very much hope that nothing will be done that makes it any more difficult than it already is for the applicant to pursue either or both of the remedies open to him: that is to say, on the one hand the domestic appeal, albeit pursuable only from abroad, and on the other any application he may now make to the Strasbourg Court. I say this because, as I have made clear, I am troubled by the fact that there is at the base of this case a worrying decision which it may well be should not have been taken in the way it was and from which all the succeeding problems have flowed. It is difficult to unravel such a decision, but it may still be that its consequences can be addressed.

So for those reasons I refuse the application.