Kwan, R (on the application of) v Secretary Of State for the Home Department

A removal decision must be assessed by reference to the material available when it was made. Later medical or compassionate material may lead the Secretary of State to reconsider whether, and if so when, removal should occur, but it cannot legally invalidate the earlier decision. A challenge to the timing or service of removal directions may become academic once the specified removal date has expired, particularly where the applicant has in any event remained in the country for substantially longer. The continuing decision whether and when to remove a person subject to a deportation order remains for the Secretary of State.

The applicant, a Hong Kong national who had overstayed and was subject to a deportation order, sought judicial review of removal directions issued by the Secretary of State. He argued that the directions were served too late, allowed too little time, and failed to accommodate compassionate circumstances arising from the ill health of him and his wife. Ouseley J refused permission to apply for judicial review on all three grounds. On an application for permission to appeal, the Court of Appeal considered whether later medical material could challenge the original directions and whether the service and notice complaints remained justiciable after the removal date had passed.

1. Disposition. The application for permission to appeal was refused. The Court of Appeal considered that Ouseley J had correctly rejected all three proposed grounds of challenge.
2. Subsequent information. Medical letters received by the Immigration Service after the removal directions had been issued could not be relied on to challenge the legality of the Secretary of State’s earlier decision. The Secretary of State would nevertheless review whether, and if so when, removal should take place and whether the medical circumstances justified an extra-statutory concession. That continuing administrative review was distinct from a legal challenge to the original decision.
3. Service and notice. Any complaint that the directions were served too late or allowed too short a period had become academic and immaterial. The specified removal date had long expired, and the applicant had secured several further months in the country. There was therefore no useful challenge remaining on those grounds.
4. Immigration history. It was not an error for the judge to take account of the applicant’s immigration history when assessing a fresh challenge. That history was relevant and could not properly be overlooked.
5. The decision whether, and if so when, to deport or remove a person subject to a deportation order remained with the Secretary of State.

1. Court of Appeal (Civil Division): On 16 May 2001, Lord Justice Simon Brown refused the application for permission to appeal. [2001] EWCA Civ 722.
2. Administrative Court, Queen’s Bench Division: On 26 January 2001, Ouseley J refused permission to apply for judicial review of the removal directions.
3. Earlier proceedings: The applicant’s appeals concerning deportation and asylum, and his applications for judicial review and permission to appeal, had previously been unsuccessful. This Court refused permission to appeal in July 2000.