Ofosu, R (on the application of) v Secretary Of State For the Home Department

A prior grant of indefinite leave to remain does not, by itself, prevent the Secretary of State from acting on a court’s recommendation to deport and making a deportation order, provided the proper processes are followed. Disappointed expectations do not create a legal bar. Where the material shows that relevant representations and compassionate circumstances were considered, and there is no material change in circumstances after the grant, the claimant may have no arguable ground for judicial review.

The claimant, a Ghanaian national, had previously been refused asylum, convicted of attempted rape and sentenced to imprisonment with a recommendation for deportation. After representations seeking exceptional leave to remain, he received an earlier grant of indefinite leave to remain as a refugee. He was later told that the refugee-status decision had been made in error, although the indefinite leave decision was said to remain unaffected. A deportation order was then made.

Ouseley J refused permission to apply for judicial review. On the renewed application, the claimant argued that the deportation decision had failed properly to consider his circumstances and representations, and that he had not been given a proper opportunity to make representations. The central issue was whether the earlier grant of indefinite leave prevented deportation in the absence of a material change in circumstances.

1. Disposition. Lord Justice Carnwath dismissed the renewed application for permission to apply for judicial review. There was no order for costs.
2. The claimant accepted that the Secretary of State was legally entitled to act on the recommendation for deportation and make a deportation order, provided the proper processes were followed. His principal contention was that the earlier grant of indefinite leave created a legal constraint because there had been no material change in circumstances.
3. The court identified no legal principle preventing the Secretary of State from making a deportation order merely because indefinite leave had previously been granted. The claimant’s disappointed expectations, however understandable, did not themselves invalidate the later decision. The court expressly left open whether a material change in circumstances might affect the position, since no such change was suggested.
4. Ouseley J had taken into account the caseworker’s statement. That statement confirmed the error in the earlier refugee-status decision, considered the claimant’s circumstances and the representations made in 1999, including the letter from Ghana, and concluded that there were no compassionate grounds for withholding the deportation order. Against that material, and absent a legal bar arising from the grant of indefinite leave, there were no arguable grounds for permission.

• Court of Appeal (Civil Division): On the renewed application, dismissed the application for permission to apply for judicial review under [2002] EWCA Civ 561.
• Administrative Court, Queen’s Bench Division: Ouseley J refused permission to apply for judicial review. No citation is stated in the judgment.