The Court of Appeal has upheld the Home Office’s power to make fresh deportation decisions against those who had previously successfully appealed against deportation, following changes to legislation and the Immigration Rules.

In this case, a Nigerian national with a criminal record and a family based in the UK had back in 2012 successfully appealed a deportation order on the grounds of Article 8 ECHR. Thereafter the Secretary of State made a fresh deportation order, based on the same evidence, following the changes to deportation law brought about by section 19 of the Immigration Act 2014, and its introduction of a different approach to weighing the public interest in such cases.

The Claimant had been unsuccessful in his claim Judicial Review, but appealed as Lord Justice Singh considered it arguable that the case of Harverye v SSHD [2018] EWCA Civ 2848 indicated that the fresh deportation decision was unlawful, and that there was an apparent inconsistency between Harverye and another recent decision of the Court of Appeal, MA (Pakistan) v SSHD [2019] EWCA Civ 1252.

The Court of Appeal held that there was no inconsistency between the two judgments, and that, as in the case of MA(Pakistan), the Secretary of State had been entitled to make a second deportation decision on the same facts. It was said that the “submission at the heart of the appellant’s case that the legislation operates retrospectively, [was] fundamentally misconceived”. The earlier 2012 decision had not “definitively determined the issue that the removal of the appellant would be a disproportionate interference with his (and his family’s) Article 8 rights”, but only that it would have been a disproportionate interference with his Article 8 rights “at the time when the determination was made”, and did not create any vested right.

To “move the goalposts” after the earlier decision may have been “harsh”, but although the Court expressed sympathy for the devastating impact on the Appellant and his family, the decision had not been unlawful or unfair.

The Court of Appeal also gave a clear statement that such proceedings should not have been brought by way of Judicial Review, when the Appellant could and should have raised his arguments in his statutory appeal. In a strong statement, the Court of Appeal held that that this was “an abuse of the process and the message needs to go out that this type of abuse will not be tolerated. The appellant is not entitled to have endless bites of the same cherry. … It would undermine the whole of the Tribunal system if litigants relying on Article 8 or other Convention rights were allowed, as a matter of course, to exhaust their rights of appeal and then bring a fresh indirect challenge by way of judicial review raising points that could and should have been argued before the Tribunal.”

The judgment can be read here.

David Manknell was instructed by the Government Legal Department to represent the Secretary of State.