ES (Togo) & Anor v Secretary of State for the Home Department

A deportation order remains effective unless revoked in the manner provided by statute or otherwise ceases to have effect. Temporary admission or permission granted while it is in force does not amount to implied revocation and is invalidated by the order. A discretionary long-residence policy must be applied by reference to its stated factors and the individual merits. Decision-makers may consider parental deception and realistic relocation options. In Article 8 cases, delay may increase private or family life and may be relevant to proportionality. However, where the claimant has no independent immigration entitlement, delay normally affects the outcome only if it has very substantial effects. The low threshold for Article 8 engagement may be assumed where the issue is insufficiently argued. The ultimate question remains whether removal is proportionate.

The first appellant, a Togolese national, entered the United Kingdom in 1985, overstayed, became subject to a deportation order in 1991, and later re-entered using a false passport. She obtained temporary permission to work and applied for indefinite leave to remain in 2000. The Secretary of State did not determine the application for more than six years. Both appellants had New Zealand passports and a right to reside there.

The Asylum and Immigration Tribunal upheld the refusal of indefinite leave to remain after reconsideration. It rejected the arguments that the deportation order had been impliedly revoked or waived, that the long-residence policy required leave to be granted, and that removal would breach Article 8. The appeal concerned the effectiveness of the deportation order, application of the policy, delay, and proportionality.

1. Disposition. Pill LJ delivered the leading judgment. May LJ agreed and added that the Secretary of State’s handling of the delay was deplorable. Sir Peter Gibson agreed. The appeal was dismissed unanimously.
2. Deportation order. Section 5 of the Immigration Act 1971 provides a complete statutory scheme governing the continuing effect of a deportation order. Under section 5(1), the order invalidates leave to enter or remain granted before it was made or while it remains in force. Section 5(2) requires revocation by a further order of the Secretary of State, subject to the specified statutory cessation provisions. Sections 5(3) and 5(4) did not apply. Following Watson v Immigration Officer, Gatwick [1986] Imm AR 75, the order could not be revoked by implication, even though the appellant had obtained admission and temporary permission. The Immigration Rules (HC 395), including paragraphs 320(2), 390, 395, 362 and 363A, were consistent with that conclusion.
3. Long-residence policy. The policy in DP5/96 was discretionary. Its stated factors, together with the individual merits, governed its application. Fouzia Baig v SSHD [2005] EWCA Civ 1246 did not approve the accompanying commentary word for word. The commentary gave examples and its reference to poor immigration history and deliberate delay was not conjunctive. The Tribunal was entitled to consider the first appellant’s deception, the absence of extreme hardship, and the realistic possibility of relocation to New Zealand.
4. Article 8 and delay. The court referred to AG (Eritrea) v SSHD [2007] EWCA Civ 801 on the low threshold for engagement and assumed, without ruling, that Article 8 was engaged. Under Huang v SSHD [2007] 2 AC 167, HB (Ethiopia) [2006] EWCA Civ 1713 and Strbac v SSHD [2005] EWCA Civ 828, delay could be relevant, but required very substantial effects where there was no independent immigration entitlement. The Tribunal sufficiently considered the second appellant, gave little weight to the employment contribution, and was entitled to regard the delay as having no such effects. The refusal was proportionate.

• Court of Appeal (Civil Division): [2008] EWCA Civ 230, 22 February 2008. Appeal dismissed.
• Asylum and Immigration Tribunal: The appeal against refusal of indefinite leave to remain was dismissed on 31 July 2006. Permission for reconsideration was granted, and the Tribunal again upheld the Secretary of State’s decision in June 2007; the judgment refers to the decision as dated 6 July 2007.