The Queen -v- Secretary of State for the Home Department (ex parte Shokunbi)

On an application for judicial review of a refusal to revoke a deportation order, the immigration decision-maker may rely on earlier decisions that have not been challenged by judicial review. The applicable policy is determined by the procedural history and the policy governing the application under consideration. Where enforcement proceedings were treated as beginning with an earlier warning and instruction to depart, a later marriage application was governed by DP3/96 rather than DP2/93. A decision letter gives adequate reasons where it identifies the earlier refusal, explains why prior appellate decisions will not be reopened, and states which policy applies. Without an arguable error of law, permission to appeal should be refused.

Mrs Shokunbi, a visitor who had overstayed, sought judicial review of the Immigration and Nationality Directorate’s refusal on 20 May 2000 to revoke a deportation order. She relied on her lengthy residence, marriage and earlier cohabitation, and argued that her case should have been considered under DP2/93 rather than DP3/96. Penry-Davey J refused judicial review on 9 February 2001. She applied to the Court of Appeal for permission to appeal, arguing that the earlier refusal based on her common-law relationship had not been disclosed and that the decision letter did not explain the refusal to apply DP2/93. The central issue was whether the refusal disclosed an arguable error of law.

Disposition

Rix LJ agreed with the reasoning of Penry-Davey J and refused permission to appeal. The application disclosed no arguable error of law.

1. The Immigration and Nationality Directorate was entitled to consider revocation on the basis of earlier decisions which had not been challenged by judicial review. The relevant history included the earlier refusal of the application based on the common-law relationship, the special adjudicator’s decision and the Appeal Tribunal’s refusal of permission.
2. Under DP3/96, enforcement proceedings were treated as having commenced with the instruction to depart and warning of liability to deportation given on 28 September 1990. Those proceedings therefore preceded the applicant’s marriage on 12 October 1996 and her subsequent application based on that marriage. The application had to be considered under DP3/96, not the earlier DP2/93 policy.
3. The first proposed ground did not disclose an error of law. There was no evidence that the refusal of the common-law application had not been received, and the judge below had considered that suggestion in any event.
4. The second proposed ground also failed. The decision letter referred to the earlier refusal, explained the Directorate’s unwillingness to reopen the decisions of the special adjudicator and appellate tribunal, referred to subsequent applications, and explained that DP3/96 governed the application. Those matters provided a sufficient basis for the refusal to apply DP2/93.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 9 July 2001, Rix LJ refused permission to appeal.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Penry-Davey J refused judicial review on 9 February 2001 of the decision not to revoke the deportation order.