R Arthur Obafemi Cecil Decker v Secretary of State for The Home Department (First Respondent) The Upper Tribunal (Immigration and Asylum Chamber) (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice Lewison,Lord Justice Jackson |
| Judgment Date | 03 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1752 |
| Docket Number | Case No: C4/2014/0651 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 November 2017 |
[2017] EWCA Civ 1752
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PHILIPPA WHIPPLE QC
Sitting as a Deputy High Court Judge
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Lewison
and
Lord Justice Hamblen
Case No: C4/2014/0651
Zainul Jafferji (instructed by Burton & Burton Solicitors) for the Appellant
Susan Chan (instructed by Government Legal Department) for the First Respondent
Hearing date: 26 October 2017
Introduction
This is an appeal against the decision of Philippa Whipple QC (sitting as a Deputy High Court Judge) dismissing the Appellant's consolidated judicial review claims. Those claims had sought to challenge the Respondent Secretary of State's deportation order signed on 27 January 2009 and the decision of the First Tier Tribunal ("FTT") that the Secretary of State had been entitled to refuse to issue the Appellant with an EEA residence card.
Factual and Procedural Background
The factual and procedural background to this claim is set out in paragraphs [1]–[27] of the judgment.
In outline, the Appellant is a national of Sierra Leone born on 31 December 1984 who arrived in the UK as a minor with entry clearance as a visitor on 19 May 2000. He came to the UK with his sister Winifred following the deaths of both his parents as a result of problems in Sierra Leone. They both claimed asylum, but their applications were refused. Winifred has now been granted indefinite leave to remain in the UK under the legacy exercise.
On 5 August 2005 the Appellant was convicted of seeking to obtain leave by deception and sentenced to 15 months detention in a young offenders' institution (he had submitted forged medical documents to support an application for leave to remain in the UK). On 17 March 2008 the Appellant was notified of the Respondent's decision to make a deportation order against him.
On 24 July 2008 the Appellant appealed against the Respondent's notified intention to make a deportation order. However, on 4 January 2009, while the appeal was still pending, he moved to Ireland with his sister, Jennifer (a British citizen). He did not inform the Respondent of his departure. His appeal was withdrawn on 8 January 2009.
The Respondent signed the deportation order against the Appellant on 27 January 2009 ("the deportation order").
The Irish authorities granted the Appellant an EEA residence card as an extended family member of his sister, Jennifer, who was exercising Treaty rights in Ireland.
In October 2009 the Appellant returned to the UK.
On 28 October 2009 the Appellant applied for an EEA residence card on the basis that he was dependent upon Jennifer and a member of her household. This application was first refused by the Respondent on 6 January 2010. It was further refused after reconsideration on 8 August 2011 and 11 January 2012.
On 27 March 2012 the Appellant's appeal against the refusal to grant him an EEA residence card was dismissed by the FTT ("the FTT decision").
On 9 May 2012 the Upper Tribunal refused permission to appeal.
On 20 August 2012 the Respondent issued her decision to refuse to revoke the deportation order.
Judicial review claims were issued: (1) against the decision to remove him, challenging the validity of the deportation order made whilst he was out of the country and the decision to detain him; (2) against the Upper Tribunal's decision to refuse permission to appeal, and (3) challenging the refusal and certification of his application to revoke the deportation order. These were consolidated by consent order on 29 April 2013.
Following a hearing on 29 January 2014 the judge dismissed all three judicial review claims in her judgment of 19 February 2014. This is the decision under appeal.
On 27 June 2016 Sales LJ granted permission to appeal against that decision on grounds (1), (3) and (5) and refused permission on all other grounds.
The issues on the appeal
The three grounds of appeal raise essentially two issues:
(1) Whether the deportation order was invalid because the Appellant was outside the UK when it was signed (Grounds and (5)). (Ground (5) argues that the refusal to revoke the deportation order was invalid, which is essentially the same issue as whether the order was valid in the first place);
(2) Whether the incorrect approach under article 27 of the 2004 Citizen's Directive was applied when the Appellant was refused an EEA residence card (Ground (3)).
Issue (1) — Whether the deportation order was invalid because the Appellant was outside the UK when it was signed
The power to deport a person from the UK is granted by the Immigration Act 1971 ("the 1971 Act"). Section 3 sets out those who are liable to be deported from the UK:
" 3 General provisions for regulation and control
…
(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."
Section 5(1) of the 1971 Act provides for the Respondent's power to deport:
" 5 Procedure for, and further provisions as to, deportation
(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 to him before the order is made or while it is in force.."
Section 5(6) of the 1971 Act makes provision for supervised departure:
"(6) Where a person is liable to deportation under section 3( 5) or (6) above but, without a deportation order being made against him, leaves the United Kingdom to live permanently abroad, the Secretary of State may make payments of such amounts as he may determine to meet that person's expenses in so leaving the United Kingdom, including travelling expenses for members of his family or household."
The judge rejected the Appellant's argument that a deportation order signed whilst the subject of the order is outside the UK is not a valid order for the reasons set out at [28]–[50] (Ground 1) and [121]–[123] (Ground 5) of her judgment. In summary, her reasons for so concluding (with references given to the relevant paragraphs of the judgment) were as follows:
(1) The relevant statutory provision, section 3(5) of the 1971 Act, did not contain any express requirement that the person must be present in the UK at the time the deportation order was signed [42];
(2) "To read in such a condition would go against the grain of the statute" which under section 5(1) has the double effect of both removing the person from the UK and prohibiting that person from entering. The double effect would suggest that the order was to be effective whether the person was inside or outside the UK [43];
(3) Reading in such a condition would undermine the policy of maintaining effective immigration control by removing foreign criminals and others whose presence in the UK was not conducive to the public good. It would result in a large gap, such that if the order was signed on a day when the subject was not in the UK, it would be invalidated, even if the subject had just gone to Calais for the day clandestinely to avoid deportation. If the person managed to slip back in unnoticed, the Respondent would potentially have to sign a second deportation order which could again be defeated in the same way if the subject left the country. That result made no sense [44–45];
(4) Rules and instructions given to immigration officials were not intended to limit the validity of a deportation order in ways not envisaged by the statute, nor did they have that effect [46];
(5) The contention that the Respondent's position would undermine the policy incentive for voluntary departure was misplaced as the Appellant had not left "voluntarily" in order to return to Sierra Leone; he had left the UK to avoid deportation and promote his prospects of staying in the UK by getting a UK residency card [para 47];
(6) The case of R v SSHD ex p William Duah Brew [1988] Imm AR 93 did not assist the Appellant. In that case as in this case, there was no realistic prospect that the subject of the deportation order would leave voluntarily [48].
In reaching these conclusions the judge referred to and relied upon findings made by the FTT, as set out in paragraph 40 of her judgment:
"40 The First Tier Tribunal found as a fact that the Claimant had moved to Ireland with his sister for the immediate purpose of avoiding the deportation proceedings which had been instituted against him and for the secondary purpose of enabling him to return to the United Kingdom in due course as the extended family member of a UK national who had exercised Treaty rights in Ireland: para 18. The First Tier Tribunal went on to conclude that:
"21. It would undermine the maintenance of effective immigration control, one of the central...
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...submitted that the same reasoning as given by the Court of Appeal in the case of Decker v Secretary of State for the Home Department [2017] EWCA Civ 1752, applies to the present case as a natural extension of the consequences of a person attempting to avoid the effect of a Deportation Order......
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