Theresa May, who has vowed to cleanse the UK of the malaise of criminal foreigners, must be delighted with the Supreme Court’s decision in this case. The court held that revocation of a deportation order does not revive a criminal immigrant’s past indefinite leave to remain (ILR). Rather, the SSHD is free to decide afresh what leave to grant. Fitzroy George (G), a 30-year old from Grenada, entered the UK in 1995 and was granted ILR in 2000. Because of G’s criminality, the SSHD formed the view that his deportation was conducive to the public good. Apart from driving offences, G was convicted of supplying cocaine in 2002, for which he received three years in a Young Offenders’ Institution, and possession with intent to supply heroin and cocaine in 2005, for which he received four years’ imprisonment.
Despite G’s resistance, the SSHD succeeded in making a deportation order against him in 2008. He was notified accordingly but made a further application to revoke the deportation order contending that deporting him would breach his article 8 ECHR rights. (G and his partner from his school days lived apart but he had a relationship with his daughter who saw him frequently and occasionally stayed with him.) The SSHD was unsympathetic as regards article 8 but Immigration Judge Neuberger determined that deporting G would breach his right to a family life. In light of the judge’s decision, which did not include a direction to reinstate ILR, the SSHD granted discretionary leave (DL) for six months which upon expiry was replaced by DL for three years. Despite disagreement over the status of G’s old ILR, the parties agreed that the deportation order had been revoked as a result of the immigration judge’s decision.
Arguing that the revocation of his deportation order reinstated his original ILR, G sought judicial review of the decision to not restore his ILR. He failed before HHJ Bidder but the Court of Appeal (Sir Stephen Sedley & Maurice Kay LJ, Stanley Burnton LJ [dissenting]) allowed his appeal. Aggrieved, the SSHD appealed and the Supreme Court (Lord Neuberger PSC & Lords Clarke, Carnwath, Hughes & Toulson JJSC) unanimously allowed her appeal.
Giving the only judgment, Lord Hughes JSC found no legal symmetry for ILR to coexist alongside G’s status that his presence was not conducive to the public good and at paragraph 32 his Lordship held that:
On its correct construction, section 5(2) of the 1971 Act does not mean that if the deportation order is revoked, the invalidation by section 5(1) of leave to remain is retrospectively undone and the previous leave to remain does not revive. Mr George remains liable to deportation, even though it cannot at present be carried out. His position in the United Kingdom must be regularised, but that does not entail a recognition of indefinite leave to remain. The Secretary of State’s grant to him of successive limited leaves is perfectly proper. Whether or not it may become appropriate after the passage of time to re-grant indefinite leave is a matter for her.
Equally, the court pointed out at paragraph 31 that legal obstacles to deportation – such as conditions in a person’s home country or family ties to the UK – are “not necessarily permanent” and could change over time. Where family life precluded deportation and ILR was reinstated and a person “turned his back on his family, or they on him as might not infrequently occur” then such person would still remain irremovable despite no longer having any family life.
G’s counsel pleaded a twofold case for revival of his ILR upon the revocation of the deportation order:
- That as a matter of construction, section 5(1) and (2) of the Immigration Act 1971 mean that upon revocation the position reverts to the status quo ante, i.e. the ILR revives.
- That this conclusion is clarified by considering other statutes on the same subject which must be analysed together, in particular section 76 of the Nationality, Immigration and Asylum Act 2002, section 10 of the Immigration and Asylum Act 1999, and the automatic deportation provisions of the UK Borders Act 2007.
The submission that revocation under section 5(2) of the 1971 Act rescinds the threefold consequences laid down in section 5(1) of the 1971 Act – i.e. a direction to leave, a prohibition on return and the invalidation of any existing leave to remain – was rejected by Lord Hughes JSC at paragraph 10 because the argument did “little more than assume what it seeks to prove.” A direction to leave and a prohibition on return required “obedience by action or omission” from the person concerned whereas the invalidation of existing leave is a statement of a legal effect. For his Lordship, the statutory wording was inconclusive in relation to whether revoking a deportation order resurrects leave to remain invalidated by making the deportation order.
Moreover, at paragraph 10, the Supreme Court thought that section 5’s drafting pointed to revocation being “prospective rather than retrospective.” That is to say that from the moment the deportation order is revoked someone like G is no longer under an obligation to leave and is free to return subject to the caveat that “the invalidation of leave which has occurred through the making of the deportation order is not undone.”
The court explained at paragraph 11 that the wording in section 5(2) – “shall cease to have effect” – is not connected with revocation and applies only if a person becomes a British citizen. Equally, despite the possibility of mounting contrary arguments, it is completely clear that those operating or commenting upon the 1971 Act have endorsed the view that revocation does not undo the invalidation of leave to remain achieved by section 5(1). Successive versions of the Immigration Rules, laid before Parliament pursuant to section 3(2) of the 1971 Act under the negative resolution procedure, made it abundantly clear that:
Revocation of the deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to qualify for admission under the Immigration Rules.
The court remarked at paragraph 12 that ever since its inception Macdonald’s Immigration Law and Practice in the United Kingdom recorded “this same proposition without question.”
For Lord Hughes JSC, revival of previous leave does not correspond to the natural meaning of section 5 of the 1971 Act. At paragraph 29 his Lordship clarified that revival is an extensive legal concept which “would have been specifically provided for if it had been intended.” Although on the one hand the Supreme Court opined that statutes on the same subject should be construed consistently, rejecting the logic embraced by the majority in the Court of Appeal, on the other hand Lord Hughes JSC held that:
30. … [A] later statute is not a reliable guide to the meaning of an earlier one, especially in a field such as immigration where social and political pressures have led to fast-moving changes in the legislation. In particular, the history of the treatment of section 5(2) of the 1971 Act in successive rules laid before Parliament both before and ever since the 1971 Act was passed shows very plainly that there cannot have been a legislative assumption that revival was its effect.
G succeeded in the Court of Appeal on the point that section 76 (Revocation of leave to enter or remain) of the 2002 Act contained the sole power to revoke a person’s ILR. But for the Supreme Court, the revocation of a deportation order in a case like G’s – who was irremovable for legal reasons –did not revive prior ILR. Lord Hughes JSC was unconvinced that section 76 contained the only power to revoke ILR. His Lordship did not buy into the argument that Parliament would not need to enact section 76(1) of the 2002 Act – whereby the SSHD is empowered to revoke ILR in respect of a person liable to deportation but who cannot be deported for legal reasons – if section 5(1) of the 1971 Act could achieve the same result. Instead, Lord Hughes JSC reasoned that the making of a deportation order irrevocably cancelled ILR.
In G’s case, the bar to his deportation became apparent after the deportation order had been made. But in other cases similar bars could be apparent as soon as someone became liable to deportation and a deportation order would never be made. For the Supreme Court, the section 76(1) power to revoke ILR serves a useful purpose because if human rights prevent deportation in a case and a deportation order cannot be made it still makes “good sense” to modify ILR into time-limited or conditional leave to safeguard the public interest.
Moreover, the automatic deportation regime under the 2007 Act worked well with the section 76(1) power because in instances where the SSHD failed to make a deportation order owing to human rights considerations, section 76 could nevertheless be relied upon to alter a person’s ILR. Furthermore, the Court of Appeal had erred in its view that section 76 of the 2002 Act illustrates that Parliament considered section 5 of the 1971 Act to revive leave to remain upon the revocation of a deportation order. Rather, “the assumption at the time was the opposite” and Parliament intended that a deportation order should terminate leave to remain.
In circumstances where a deported person needs to visit the UK, the said person would need to approach the SSHD to revoke his deportation order and grant fresh leave. Reinstating ILR in such circumstances would be wrong.
Lord Hughes JSC also clarified, at paragraphs 20 – 21, that since the problem at hand involved the construction of the 1971 Act in real time, the terms of the Immigration (Leave to Enter and Remain) Order 2000 – which “had not seen light of day” in 1971 – did not change anything in the Supreme Court’s conclusion.
G’s argument by analogy with section 10 (Removal of certain persons unlawfully in the United Kingdom) of the 1999 Act did not find favour with the Supreme Court either and at paragraphs 25 and 26 the court considered it wrong to decide the provision’s precise meaning “in the absence of facts raising the issue.”
Lord Hughes JSC arrived at the same conclusion as regards the 2007 Act. His Lordship explained at paragraph 28 that “[t]he import of the 2007 Act needs to be resolved on facts arising from it and not hypothetically on a case to which it has no application.”