George v Secretary of State for the Home Department

This is an application for judicial review of the Defendant's refusal of 18 February 2010 to reinstate the Claimant's Indefinite Leave to Remain ("ILR") following his successful appeal against deportation on 31 March 2009 which appeal was upheld on reconsideration on 27 April 2009. Permission to apply was granted by Mr Elvin QC on 17 August 2010.

There are, I agree with Counsel for the Defendant, two questions which fall to be determined in this appeal, namely:

In the claim form, the Claimant claimed damages for delay in issuing status papers. He no longer pursues that claim.

The Claimant, who is a citizen of Grenada, has been resident in the UK since 1995 when he was then aged 11. In 2000, when he was aged 16, he was granted ILR. Since that time he has been involved in serious criminal conduct having been sentenced to four terms of custody. In January 2002 he was convicted and sentenced to 3 years detention in a Young Offender Institution for five counts of supplying class A drugs on separate occasions. In April 2005 he was convicted and sentenced to 4 years imprisonment for three counts of possession of controlled drugs (two of which were class A) with intent to supply.

In the light of that conduct, the Defendant formed the conclusion that the Claimant's removal from the UK was conducive to the public good and on 30 January 2007, the Claimant was notified that the Defendant had decided to make a deportation order pursuant to section 3 (5) of the Immigration Act 1971 ("the Act"). In a determination prepared on 19 December 2007 (which was never successfully appealed) the Claimant's challenge to the decision in which he relied upon his article 8 rights arising from his relationship with his daughter and partner was dismissed.

A deportation order was signed by the Defendant on 24 April 2008.

Following some further representations and a judicial review claim, which was compromised, the Defendant issued a further decision rejecting the Claimant's further human rights representations and granting him a right of appeal.

That appeal, against the refusal to revoke the deportation order, was eventually concluded in the Claimant's favour on 31 March 2009. The Immigration Judge recognised that the determination was a borderline one and was the consequence in part of material developments which post dated the deportation order. The Immigration Judge did not suggest or purport to direct that the Defendant should reinstate the Claimant's ILR. He merely found that although the Claimant was liable to deportation, his actual deportation would breach his article 8 rights.

It was mistakenly stated by one of the Defendant's employees in a letter on 18 December 2009 that ILR only ended when the deportation order was enforced. That was a mistaken interpretation of section 5 of the Act and was later corrected, but nothing turns on the mistake.

Section 3 of the Act, where relevant, states:

Section 5 (1) of the Act states:

“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 3D of the Act states:

Paragraph 392 of the Immigration Rules makes express provision as to what should happen in cases where the Defendant revokes a deportation order in circumstances where the person has been deported. It states:

There are other statutory provisions which have been referred to during argument but I can deal with those most conveniently later in this judgment when canvassing the arguments.

It is convenient for me to deal with a preliminary matter at this stage before going on to look at the main arguments. By a supplementary skeleton argument and proposed further amended grounds of review dated 7 November 2011, the hearing being on 8 November, the Claimant raised a point of claim not within his already amended grounds of claim. Mr Lee, for the Claimant, recognised that the late raising this matter gave little time for counsel for the Defendant to deal with the substantive arguments raised by the new point.

It was agreed by both counsel that I should determine whether the new point could possibly be relevant in this case. I heard argument on that point during the hearing. In the event of my finding it to be potentially relevant I would defer the preparation of my judgment and call for further argument at a further hearing. It would even be conceivable that I should stay the hearing to await the judgment of another judge of the High Court.

It is contended that on 3 November 2011 the Defendant disclosed to the Claimant for the first time matters which were of substantial materiality to his claim, namely that there was, at that time of the decision in the Claimant's case in relation to the refusal to revoke the deportation order and to grant temporary leave, an unpublished policy namely: "Criminal Case Work Directorate Process Instruction for Granting Leave" which had been in force since 15 July 2007.

It is contended that, although the existence of the policy was disclosed in other litigation and, indeed, is the subject of a challenge recently heard in the Administrative Court in the case of Mayaya –v- Secretary Of State For The Home Department (CO/1524/2011) the Claimant says that this policy was not disclosed in this case until very recently. It is not known when judgment will be given in the Mayaya case.

The significant part of the policy is cited in the supplementary skeleton argument and states as follows:

The policy was amended on 9 May 2011.

It is contended that the existence of an unpublished policy is material to the question of what leave to remain ought to have been granted to the Claimant in the event that the court agrees that the Claimant’s ILR remained invalid after the deportation order was revoked. A challenge has been made in Mayaya on the basis that the policy instructions unlawfully fetter the Secretary of State's discretion as to which offences to treat as serious, that the definition of serious crime is unlawful as contrary to the Qualification Directive and that it impermissibly sets down rules concerning exclusion that are not provided for in the Immigration Rules. Mr Lee for the Claimant submits that an unpublished policy must be unlawful in that any policy should be accessible so that a person affected by it has a right to make representations. Secondly, the policy shows that there is a discretion whether or not to treat an offence as a serious crime.

I have to consider, when deciding whether to allow an amendment to the grounds, whether the points to be raised arguably support a claim for judicial review. It seems to me quite plain that the Instruction, as it is called, purports to give guidance to caseworkers only in relation to consideration of crimes attracting a 12 month custodial sentence. It could not possibly have any impact in relation to either of the two significant terms of custody considered in this case, namely, respectively, three years and four years.

Moreover, consideration of the "non exhaustive" factors also make it clear that this guidance would simply not apply to a sentence greater than 12 months.

Additionally, Mr Lee gives no indication of how this guidance differs from published policy. The policy as set out at page 47 of the supplementary core bundle and indicates that "Individuals excluded from humanitarian protection will usually be granted discretionary leave for six months". That indicates that the Secretary of State retains a discretion as to what leave will be granted. Rule 339D of the Immigration Rules indicates that a person will not be eligible for a grant of humanitarian protection if he is excluded from it because there are serious reasons for considering that he has committed a serious crime. The rule goes on to indicate that a serious crime for these purposes is one for which is custodial sentence of at least 12 months has been imposed in the UK.

In order to succeed in establishing that the unpublished guidance would have made some difference Mr Lee would have to point to a submission that he would have made had he known of the guidance. It is clear from the most relevant Immigration Judge determination that the judge did indeed conclude that the crimes committed by the Claimant were very serious and, indeed, submissions made on behalf on the Claimant accepted that he had been convicted of a serious offence. It is inconceivable, in my judgment, that the undisclosed guidance could possibly have caused any case worker or an Immigration Judge to take the view that drug trafficking offences meriting three and four years were not serious offences.

I regard the submissions based on the unpublished policies as unarguable and I refuse permission to amend the grounds of claim.

The Claimant submits that, despite the apparently clear words of section 5, the invalidation of the leave granted prior to the making of the order, in the Claimant's case, ILR, cannot survive the setting aside or revocation of the deportation order. Mr Lee, for the Claimant, submits that the effects of section 5 are draconian and that a strict interpretation should be given to them. Moreover, he further argues that there is significance in there having been omitted from this Act a potentially material provision in a precursor to the 1971 Act, namely, section 9 (3) of the Commonwealth Immigrants Act 1962. Section 9 (1) of that Act gave the Secretary of State the power to make a deportation order and subsection (3) stated:

A similar provision proposed for the 1971 Act was deleted following an objection during its passage through Parliament. I was invited to consider the passage in Hansard dealing with the objection but, even if the requirements of Pepper-v-Hart were satisfied (which I doubt) I found that the passage was of no greater assistance in determining the intention of Parliament than the mere fact that the clause was not included in the 1971 Act.

Mr Lee also relies on the existence of section 76 of the 2002 Act and suggests that the fact that Parliament was minded, where the Secretary of State revokes a person's ILR if the person is liable to deportation but cannot be deported for legal reasons, to grant an in country appeal, is inconsistent with Parliament having intended by section 5, where a refusal to revoke a deportation order is successfully appealed, nevertheless, to preserve the revocation of ILR with no in country appeal.

Moreover as the case of EO (Deportation Appeals: Scope and Process) Turkey [2007] AR 645 indicates, the process by which the Secretary of State reaches her conclusion that a person's deportation is conducive to the public good is not challengeable on merits grounds but only by way of judicial review on normal public law grounds. Yet where section 76 applies, Parliament has determined to give a full merits appeal.

Mr Fortt, for the Defendant, contends that even having regard to the potentially penal consequences of section 5, the words of the statute are plain. Moreover, if there were to be a successful appeal against a refusal to revoke a deportation order, for example, in a case where the Secretary of State was entirely reasonable in making the original decision that the person should be deported but by the time of the appeal unassailable article 8 rights had arisen (so that section 76 could not apply) and where, pursuant to the automatic revocation of ILR, the person concerned had been detained, the Secretary of State would be liable in damages for the detention.

Additionally, Mr Fortt points out correctly that in this area of the law there has been very careful consideration given by Parliament to an intricate (perhaps excessively so) system of in country and out of country appeals. In other words, Parliament has considered in what circumstances there should be appeals and, as EO demonstrates, what decisions are not liable to appeal. He argues that the fact that the consequence of the revocation of a deportation order made under section 5 is not stated to be subject to an appeal is consistent with that having been an intended consequence by Parliament. I agree with this reasoning. It does not seem to me to follow that simply because appeal rights have been given in section 76, in a later statute, it should be assumed that Parliament would not have contemplated an automatic and permanent revocation of ILR by section 5 without giving a similar appeal right.

As Mr Fortt points out, correctly in my view, a simple decision by the Secretary of State to refuse ILR, unaccompanied by a decision to remove, does not give a right to an appeal. It is also right to point out that, where there is a refusal to revoke a deportation under section 5, there is judicial scrutiny on a merits basis by means of an appeal.

As to the inferences to be drawn from the decision of Parliament not to import into the 1971 Act a similar clause to section 9 (3) of the 1962 Act, Mr Fortt points out that section 9 (3) is concerned with a revocation and not the consequences of an appeal. The protection that that section gave the Secretary of State was a very wide one, no matter how unlawful the Secretary of State's decision making was or even if the purported revocation was wholly ultra vires. Acts done in pursuance of a grossly unlawful deportation order subsequently revoked by the Secretary of State would give no redress.

It is perfectly reasonable, contends Mr Fortt, to suppose that Parliament considered it was unnecessary to give such wide protection. That is not to say that everything done under an order which is revoked would be unlawful and invalid and it was plainly open to Parliament to have, without great difficulty, specified that, where a deportation order was made under section 5 and there was a successful appeal against a refusal to revoke, all things done under the deportation order became a nullity and the status quo ante had to be restored.

Again, I find this a convincing argument.

Mr Fortt also makes the point that in the 1971 Act itself (albeit as Mr Lee rightly points out, by amendment) by section 3 D Parliament did make provision for extensions of ILR where appeals were brought against decisions to revoke leave. There was by that section an extension of leave during the period when an appeal could be brought or while an appeal was pending. Again, I agree that that appears to be a clear indication that where Parliament intended that invalidation of leave was not to take effect in particular circumstances, it did make express provision to that end. If it was intended that the consequence of a successful appeal was that leave continued, then there is no sensible reason why such a provision was not made in the very same Act.

Finally, on the issue of the interpretation of section 5, Mr Fortt points to paragraph 392 of the Immigration Rules. This paragraph makes express provision as to what should happen in cases where the Secretary of State revokes a deportation order and the person has been deported. The revocation does not entitle the person to re-enter - it merely makes the person eligible to apply for immigration under the Immigration Rules. In other words, the rules do not provide for a restoration of the status quo ante. I agree that that is a strong indication that Parliament has considered the effect of a revocation of a deportation order and has in this situation determined that it would not be right for indefinite leave to remain to be automatically restored.

In my judgment, the wording of section 5 is tolerably clear and the other statutory or regulatory provisions touching on the question of deportation and revocation strongly suggest that had it been Parliament's intention that an appeal against the refusal to revoke a deportation order should automatically restore ILR it would have been a straightforward matter to achieve that. Instead, I am satisfied that, analogously to the position under rule 392, following a successful appeal, ILR remains revoked giving a discretion to the Secretary of State to determine whether to re-grant ILR or to give shorter discretionary leave.

Mr Lee contends that the Claimant falls into the category of "settled alien" which the European and domestic courts have concluded attracts significant protection even in the face of offending.

It is right that Immigration Judge Neuberger at paragraph 32 of his judgment accepted that the Claimant had established a private and family life in the UK and that his removal from this country would most certainly be a very serious interference with those lives. Additionally he accepted that the Claimant's motive for originally becoming involved in crime was the traumatic effect that the stabbing of a close friend that had upon him. The Immigration Judge found that the appellant had been in the United Kingdom for some 14 years (the decision was promulgated in March 2009). The judge accepted that he had no family in Grenada. Additionally, there is no doubt that, following the decision of the House of Lords in Beoku Betts [2008] UKHL 39, the judge also had regard to the article 8 rights of the Claimant's mother and his siblings. The appeal was allowed on human rights grounds and under the Immigration Rules.

Mr Lee contends that not only had circumstances changed between the decision of the Secretary of State to find that it was conducive to the public good to make a deportation order and the eventual successful appeal against the refusal to revoke the order, but also that the understanding of the law had changed, through Beoku Betts.

In the original appeal against the making of a deportation order, heard in December 2007 the AIT did not find the Claimant's relationship with his partner, Ms Ortuste, to be as close as he claimed. They had never lived together and there was a very limited relationship with the child of the union.. On 7 April 2005 the Claimant had received a sentence of four years imprisonment and after his release he had been detained so that he had had very little time to form a relationship with his child nor indeed to deepen his relationship with his partner. He was at large for only about a month in order to pursue his appeal rights. There is some suggestion that his partner had not told the truth about her stating that she had visited him in prison (contradictory evidence is at paragraph 17 of the reconsideration, SB 54) although Mr Lee suggests that the later reference to not having visited him referred to another sentence.

The AIT found that the Claimant's partner was in employment on a full or part-time basis but that she would wish to progress to further educational studies. They found that in the event that the deportation decision was upheld then she and the child might choose to return to Grenada together. In that event there would have been no infringement of his article 8 rights, nor those of his partner and child. In any event, even if they did not return to Grenada the AIT was satisfied that family contact could be maintained by visits, telephone calls and correspondence.

Balancing that against the criminal history of the Claimant the AIT found that the balance of proportionality weighed heavily in favour of the deportation order and they said at paragraph 36 "We think that if the deportation order is quashed he will return to drug-related offending, it is as simple as that."

They therefore refused to quash the decision to make a deportation order and it is correct to say that that decision has never been successfully appealed.

The deportation order was signed (or, at least, served) on the 24^th April 2008. The judgment in Betts was on the 25^th June 2008. On the face of it, therefore, it might be argued that there had never been the opportunity to argue against the lawfulness of the original deportation determination on the basis of law established in Betts.

Fresh representations were made by letter of 14 April 2008 at pages 83 to 85 of the supplementary bundle. These were no more than a repetition of the matter is that the adjudicator had ruled on. There was no further evidence from the Claimant's partner with those submissions. It is not, therefore, the case that there had been any additional submissions of any significance in relation to the Claimant’s partner and the child’s rights that had been made before the deportation order was actually made.

However, thereafter, by letter of 3 June 2008, before the decision in Betts, but obviously informed by the arguments that were to be raised in that case the Claimant's solicitors wrote to the Defendant's Criminal Casework Directorate arguing that the partner and daughters rights would be affected by the deportation and including a statement from Ms Ortuste.

The AIT determination, promulgated in January 2009, can be found from page 99 of the supplementary bundle onward. Betts was undoubtedly considered as part of this determination. However, Immigration Judge Clayton refused to permit the Claimant’s representative to adduce further evidence from Ms Ortuste by way of evidence in chief as, in his opinion, there had been ample time to take a further statement.

The judge accepted that, with the passage of time since the earlier consideration of the article 8 argument (some 18 months had elapsed since his release from custody) that there was a deeper relationship both with his partner and their daughter than had before been the case. Despite that, the Judge did not consider that deportation would breach the Claimant’s or the partner’s or daughter’s article 8 rights as the countervailing interest of the prevention of crime, the maintenance of order and of good immigration control was not disproportionate to those rights.

The only reason that that decision was then ordered to be reconsidered (see page 110 of the SB) was that the Judge had acted in a procedurally unfair way in refusing to allow further examination in chief. In no other way was his decision found to be wrong in law. Thus it is simply not possible to argue that, prior to the re-determination which actually was in favour of the Claimant, Betts was not properly taken into account.

In fact, the only additional evidence that would have been added to the evidence before Immigration Judge Clayton, was the fact that Ms Ortuste was intending to take up a university place, an unconditional offer having been made to her. That factor is highlighted by Immigration Judge Neuberger in the reconsideration at paragraph 33 (page 58, SB). The significance of the university offer is shown by paragraph 18, namely, that on taking that place up it was the intention of Ms Ortuste and the Claimant to move to Bournemouth together.

The additional evidence not allowed by IJ Clayton was clearly of significance as IJ Neuberger regarded the decision (in favour of the Claimant) as “borderline” (para 32, SB58).

I am not persuaded that the argument that the Betts decision, in the circumstances of this case, undercuts the original deportation decision of the Secretary of State. The proportionality argument, which was found in favour of the Claimant in the reconsideration, was a finely balanced one, dependent on recent changes in the circumstances of the Claimant and his partner, changes which were of relatively short duration. In those circumstances, on the facts, I do not consider it can strongly be argued that the original decision to deport can be attacked or that this court should be driven to conclude that the only fair response to the appeal against deportation under the Immigration Rules and on human rights grounds is to order the Secretary of State to grant ILR.

Nor, in my judgment, does authority support such a conclusion. Indeed, a line of authorities, namely, C –v- Secretary Of State For The Home Department [2008] EWHC Admin 2448, N –v- Secretary Of State For The Home Department [2009] EWHC 1581 and IT (Sierra Leone) –v- Secretary Of State For The Home Department [2010] EWCA Civ 787 establish the proposition that the Defendant’s policy of granting 6 months’ discretionary leave in the case of offenders who were precluded from being deported because that would have breached their human rights was entirely proper, indeed, was practical and sensible. In IT, Lord Justice Pill said, at paragraph 15:

“Following a successful article 8 appeal, the respondent cannot remove the appellant but it is for her to decide whether to exercise her discretion to grant leave to remain and, if so, for how long. It was for the respondent, and not the Tribunal, to decide the length of leave to remain…..There was nothing irrational in limiting leave to remain to 3 years. Events might occur during that period which would seriously damage the appellant’s claim that he should be permitted to remain on article 8 grounds”.

I am not persuaded that the logic of that position is undermined by Mr. Lee’s contention that, were the Claimant in this case, for example, to commit further drug trafficking offences, it would be open to the Defendant again to consider the question of whether it was conducive to the public good for him to be deported. The relatively short lived relationship with Ms Ortuste might deteriorate and, generally, there is good sense in keeping the position under review.

The case of R (Boafo) v Secretary Of State For The Home Department [2002] EWCA Civ 44 was distinguished in IT on the basis that in Boafo’s case, the appeal was against a refusal to grant ILR where an immigration adjudicator had allowed an appeal against an earlier refusal by the Secretary of State to grant ILR and where the adjudicator had not, under section 19 of the Immigration Act 1971 given, as the adjudicator had power to give under section 19(3), directions giving effect to the adjudicator’s decision. In fact, having regard to the statutory and regulatory regime, it was held in Boafo, that, absent an appeal by the Secretary of State from the adjudicator’s decision, despite the absence of directions, ILR necessarily followed from the decision. Instead, the Secretary of State had refused to grant ILR. Thus in Boafo, it was necessary for the Secretary of State to be ordered to grant ILR because that was requisite to give effect to the decision of the adjudicator. Here, the only course which the Secretary of State must take to give effect to the Tribunal Judge’s decision is not to remove the Claimant. That is a similar situation to R (EF & others) v Secretary Of State For The Home Department, also known as Farinloye v Secretary Of State For The Home Department [2010] EWCA Civ 203.

Mr. Lee relies on the case of Akdivar v Turkey, 99/1995/605/693, a judgment of the ECtHR, where the court held, at paragraph 47:

“The Court recalls that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to such breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitutio in integrum). However, if restitutio in integrum is in practice impossible the respondent States are free to choose the means whereby they will comply with a judgment in which the Court has found a breach, and the Court will not make consequential orders or declaratory statements in this regard.”

The distinction between Adkivar and this case is that in Adkivar there had been an established breach of human rights. In this Claimant’s case however, there has been no breach of his human rights: he has not been removed.

More significantly, in Bouromand –v Secretary Of State For The Home Department [2010] EWHC, Beatson J made it clear that, in principle, where human rights grounds prevent removal from the UK, that does not mean that the Secretary of State’s determination of a person’s status is restricted:

“Neither the Directive nor the Strasbourg jurisprudence requires any particular status to be granted to a non-refugee whose removal from the United Kingdom is prevented by the United Kingdom’s human rights obligations. The only immediate obligation on the United Kingdom is not to remove that person. While, as Mr Southey submitted…a decision to make a deportation order would plainly not be in accordance with the law if the Claimant was entitled to humanitarian protection , it does not follow that as a consequence the Tribunal was required to determine whether the Claimant was entitled to humanitarian protection. The decision that a deportation order could not lawfully be made does not require a decision as to the category or non-removable person into which the Claimant falls.”

Although the Claimant in Bouroumand did not have indefinite leave to remain before the decision was made to remove him, it does not seem to me that that factual distinction affects the principle which Beatson J. was enunciating.

In R (on the application of C) –v- Secretary Of State For The Home Department [2008] EWHC 2448 (Admin) the issue again was a challenge to the grant of only discretionary leave for 6 months when humanitarian protection had also been granted. The reason why the Claimant in that case could not be removed was that he had been convicted of most serious offences in the UK and there was evidence that, if removed to China, he would suffer double jeopardy. It was submitted that the policy of only allowing 6 months’ discretionary leave was an unwarranted interference with his private life – he was restricted in terms of travel; at the time he had to apply for permission to marry; he was at a disadvantage on the labour market.

Judge Jarman accepted that the authorities supported the Secretary of State having a discretion as to what leave to grant and on the issue of proportionality (assuming that the restrictions affected the Claimant’s private life) said:

“In my judgment, where, as here, the Claimant has committed what is undoubtedly a serious offence, has been the subject of deportation and the only reason he has not been deported is the very commission of that offence, it is proportionate to adopt and implement a policy of giving discretionary leave to remain for periods of six months in order to review not only the Claimant’s conditions but the conditions in the country to which deportation might be sought”

That echoes Pill LJ’s judgment in IT and the policy reasons which are also obviously present in this case, namely, the desirability of reviewing the continuing relationship between the Claimant and his partner and child, his involvement in drugs and his continued good behaviour. Again, I do not consider that the principle behind the decision of His Honour Judge Jarman is in any sense undercut by the fact that, again, the Claimant in that case had not had ILR before the decision to deport was made.

The same policy was upheld in N – v- Secretary Of State For The Home Department by Collins J.

Thus, having concluded that the words of section 5 are clear and that there is no reason to imply that the effect of a successful appeal of a decision to refuse to revoke a deportation order is to revive ILR, neither do I find, either on principle, or in the particular circumstances of this case, that the Secretary of State was bound, once Immigration Judge Neuberger had allowed the Claimant’s appeal, to grant ILR. Indeed, having regard to the “borderline” nature of that decision and the manifold uncertainties in and unpredictability of the Claimant’s private and family life and the question marks over his resolution to lead a law abiding life, the same policy reasons distinguished by successive judges in the cases I have cited above, convince me that the Secretary of State was acting lawfully and sensibly to confine her grant of leave to a discretionary six months in this case.

In the event I dismiss the application.