Rupert Junior Geddes v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 22 January 2024 |
| Neutral Citation | [2024] EWHC 66 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2017-LON-004371 |
[2024] EWHC 66 (Admin)
Mr Justice Lane
Case No: AC-2017-LON-004371
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr R Wilcox (instructed by Thompson & Co Solicitors) for the claimant
Mr J Waite (instructed by the Government Legal Department) for the defendant
Hearing date: 19 December 2023
Approved Judgment
This judgment was handed down remotely at 10:30am on 22 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an application for judicial review of the defendant's deportation order in respect of the claimant, dated 19 September 2017. The proceedings have a protracted history but are now entirely concerned with the construction of section 104 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Permission was granted by Lang J on 7 March 2023 on the single ground that it was arguable the deportation order was unlawful by reason of the claimant's then pending application for permission to appeal to the Supreme Court; and that, if the order were unlawful, the claimant had been illegally detained from 30 October to 15 November 2017, given that his detention was authorised by the defendant so as to give effect to the order.
I am grateful to Dr Wilcox and Mr Waite for their most helpful submissions. Both were of a high order.
BACKGROUND
The relevant background is as follows. The claimant is a national of Jamaica. On 22 January 2007, at Inner London Crown Court he was convicted of wounding with intent to inflict grievous bodily harm and was subsequently sentenced to six years' detention in a young offenders institution. At the date of conviction and sentence, the claimant was 17 years of age. He also had two warnings against him; for theft in June 2004 and common assault in September 2006.
On 28 April 2014, the defendant decided that the claimant's deportation was conducive to the public good, pursuant to section 3(5)(a) of the Immigration Act 1971. This decision was served on 1 May 2014. The claimant appealed to the First-tier Tribunal under section 82 of the 2002 Act. At that time, an appeal under section 82 was able to be brought directly against such a decision. On 19 November 2014, that Tribunal dismissed his appeal. The claimant appealed to the Upper Tribunal which, on 26 March 2015, dismissed the appeal. The claimant then appealed to the Court of Appeal which, in a judgment handed down on 20 October 2016, dismissed the appeal: RJG v Secretary of State for the Home Department [2016] EWCA Civ 1042. The claimant then changed solicitors to Thompson & Co, who were in a position to apply for public funding to pursue an appeal to the Supreme Court. On 24 November 2016, Thompson & Co applied to the Supreme Court for an extension of time for filing an application for permission to appeal, whilst they sought to obtain public funding. On 25 November 2016, the Supreme Court granted an extension of time until 28 days after the final determination of the application for public funding. A copy of that decision was provided to the defendant's solicitors on 29 November 2016. A final determination of the claimant's application for public funding was made on 30 May 2017. On 27 June 2017, the claimant filed his notice of appeal with the Supreme Court.
The claimant was detained on 30 October 2017 in order to give effect to his removal from the United Kingdom pursuant to the deportation order of 19 September 2017. This led to the initiation of the judicial review proceedings. On 13 November 2015, Supperstone J imposed a stay on removal until determination of the claimant's appeal to the Supreme Court. On 2 March 2013. Yipp J stayed the claimant's application for permission to bring judicial review until the Supreme Court had determined his application for permission to appeal. The Supreme Court eventually refused permission to appeal on 15 February 2022, over four years and seven months from the filing of the claimant's notice of appeal with that Court. The order of the Supreme Court said that “permission to appeal was adjourned pending the outcome in KO (Nigeria), but that decision does not make it appropriate to give permission to appeal in this case”. The judgment in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 had been handed down on 24 October 2018.
LEGISLATION
I shall set out the relevant legislative provisions. For reasons that will become evident, section 104 of the 2002 Act needs to be set out in its current form (which was the form existing at the time of the deportation order and detention), as well as in its original form and in the form it was from April 2005 to February 2010.
Nationality, Immigration and Asylum Act 2002
78 No removal while appeal pending
(1) While a person's appeal under section 82(1) is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section “pending” has the meaning given by section 104.
(3) Nothing in this section shall prevent any of the following while an appeal is pending—
(a) the giving of a direction for the appellant's removal from the United Kingdom,
(b) the making of a deportation order in respect of the appellant (subject to section 79), or
(c) the taking of any other interim or preparatory action.
(4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.
79 Deportation order: appeal
(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) that may be brought or continued from within the United Kingdom relating to 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.
(2) In this section “pending” has the meaning given by section 104.
…
The following are the relevant provisions of section 104, as from 15 February 2010 (my emphasis in subsections (1)(b) and (2)):
104 Pending appeal
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while—
(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,
(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or
(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.
As mentioned above, it is necessary to set out the relevant provisions of previous versions of section 104. As originally enacted in 2002, they were as follows (my emphasis in subsection (2)):
Pending appeal
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while a further appeal or an application under section 101(2)—
(a) has been instituted and is not yet finally determined, withdrawn or abandoned, or
(b) may be brought (ignoring the possibility of an appeal out of time with permission).
(3) The remittal of an appeal to an adjudicator under section 102(1)(c) is not a final determination for the purposes of subsection (2) above.
…
(5) An appeal under section 82(2)(a), (c), (d), (e) or (f) shall be treated as finally determined if a deportation order is made against the appellant.”
As amended on 4 April 2005 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the relevant provisions of section 104 became as follows (my emphasis in subsection (2)):
Pending appeal
(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while —
(a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination,
(b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed,
(c) an appeal has been remitted to the Tribunal and is awaiting determination,
(d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination,
(e) an appeal under section 103B or 103E is awaiting determination, or
(f) a reference under section 103C is awaiting determination.
…
(5) An appeal under section 82(2)(a), (c), (d), (e) or (f) shall be treated as finally determined if a deportation order is made against the appellant.”
Tribunals, Courts and Enforcement Act 2007
11 Right to appeal to Upper Tribunal
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.
(2) Any party to a case has a right of appeal, subject to subsection (8).
(3) That right may be exercised only with permission (or, in Northern Ireland, leave).”
13 Right to appeal to...
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