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Important new deportation cases

Written by
Colin Yeo, Free Movement
Date of Publication:
26 October 2012

On Tuesday this week the Court of Appeal handed down two important new cases on deportation. The first is Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363 and concerns the interaction of family and immigration law. The second is R (on the application of George) v Secretary of State for the Home Department [2012] EWCA Civ 1362, which examines the Lazarus-like resurrecting effect of revocation of a deportation order.

Mohan broadly endorses the approach towards children family law proceedings adopted by the Upper Tribunal in the twin cases of Nimako-Boateng (residence orders – Anton considered) [2012] UKUT 00216 (IAC) and RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC). Essentially, where there are ongoing family proceedings involving the care of a child it will normally be inappropriate to conclude any parallel immigration proceedings concerning a parent or carer. If an immigration appeal is pending it should either be adjourned or be allowed to the limited extent that a short period of leave is granted until the conclusion of the family case. This will allow the family courts to do their job, which is to decide best interests, enabling the immigration tribunal then to do its job which is to decide what flows from that assessment:

The judgment of the family court, with all the tools at its disposal (including the assistance of CAFCASS and the opportunity to assess all the adults, including Colleen), could and should inform the decision-making of the Tribunal on the issue of the proportionality of deportation, in relation to the best interests of [the child].

However, in some cases, as in the Nimako-Boateng itself, it will be appropriate for the tribunal to get on with it without waiting for an outcome from the family courts. Such cases would seem to be rare, though. The facts of Mohan included a 30 month sentence for possession of Class A drugs with intent to supply and a number of other offences. The Upper Tribunal (the name of the judge is omitted, sadly) had adopted a rather gung ho approach that the Court of Appeal held was inappropriate: there was not necessary only one outcome to the case.

Finally, Maurice Kay LJ closes his leading judgment by adapting the RS principles slightly:

Accordingly, I would allow this appeal and remit the case to the Upper Tribunal, which should approach its task broadly in the manner prescribed by RS. However, although the Tribunal in RS considered (at paragraph 44(iii)) that it should consider whether it is likely that the family court would be assisted by the expression of a provisional view of the likely eventual outcome of the immigration appeal, I take the view that that will usually be inappropriate in an apparently finely balanced case. Moreover, it does not live easily with the principle that, when the Tribunal proceeds to its ultimate decision, it must do so on the basis of the material before it at that time.

The other case is George. In this case the majority (Sir Stephen Sedley and Maurice Kay LJ, Stanley Burnton LJ dissenting) held that the powers (1) to make a deportation order with the effect of invalidating leave and (2) to revoke leave are two different powers conferred by s.5(1) Immigration Act 1971 and s.76 Nationality, Immigration and Asylum Act 2002. Where a deportation order is later revoked using s.5(2), the original leave is 'uninvalidated' (my clumsy phrase, not theirs) and revived. However, if she chooses then the Secretary of State can proceed to revoke that revived leave using s.76, which will trigger a right of appeal.

The George case is also notable for the continuing judicial spat between Sir Stephen Sedley and Stanley Burnton LJ, soon to follow Sir Stephen into retirement. Having been on the receiving end of perhaps unprecedented criticism from Stanley Burnton LJ at paragraph 30 in the case of Lamichhane [2012] EWCA Civ 260 ("that is judicial legislation, not interpretation"), Sir Stephen in George gives as good as he gets:

34. With great respect to Lord Justice Stanley Burnton, I do not think it matters that one can construct a relatively marginal scenario which this scheme of things does not address (see for example paragraph 24 of his judgment). As we are frequently reminded, it is not the job of judges to legislate.

35. Nor am I am able, with respect, to follow Lord Justice Stanley Burnton's semantic reasoning about the issue we have to decide. Revocation, invalidation and ceasing to have effect all mean much the same thing…

Let us hope that is the last word. If Sir Stephen needs a second, though, I suspect there are readers of this blog who would volunteer.