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

A refusal to revoke a deportation order may generate an appeal, but the appeal may be conducted in-country only if the claim has not been validly certified as clearly unfounded. A later application based on additional facts cannot be used to reopen or overturn an earlier judicial decision. The Secretary of State and an applicant must treat that decision as binding unless it is successfully challenged through an appropriate route. Where certification is otherwise incontestable, permission to seek judicial review should be refused. The court may nevertheless draw attention to serious concerns about the underlying decision and urge that subsequent domestic or Strasbourg remedies are not obstructed.

The appellant, a United States citizen resident in the United Kingdom since childhood, had been deported after an unsuccessful human-rights appeal and had subsequently re-entered the United Kingdom. He sought judicial review of the refusal to revoke the deportation order.

The Administrative Court refused permission, both on the papers and after an oral hearing. The central issue in the renewed application was whether any appeal against refusal to revoke the order could be pursued in-country, despite certification of the claim as clearly unfounded. The Secretary of State accepted that an appeal lay, but disputed the place from which it could be pursued.

1. Application refused. The appellant could not obtain permission to challenge the certification merely by attacking the earlier decision of Immigration Judge Wellesley-Cole. That decision, following dismissal of the Article 8 appeal and rejection of reconsideration, was res judicata.
2. A later revocation application remained available and could include the whole human-rights case as it then stood, including the appellant’s relationship with his daughter and other additional facts. It could not, however, be used by either party to overrule or invalidate the earlier judicial decision. The UK Border Agency’s apparent belief that it could overrule that decision was impermissible.
3. The appeal against refusal to revoke the deportation order could be pursued from abroad. Once the impermissible attack on the earlier decision was removed, the Administrative Court’s conclusion that the claim was not certifiable was described as incontestable. There was therefore no sufficient ground to grant permission for judicial review.
4. The court expressed concern about the underlying Article 8 decision, particularly its apparent failure to give proper weight to the appellant’s residence since childhood and the potentially exilic character of deportation. Those concerns did not alter the formal result, but the court hoped that neither the domestic appeal nor any Strasbourg application would be made more difficult.

Order: application refused.

• Court of Appeal (Civil Division): on a renewed application, refused permission to appeal against the Administrative Court’s refusal to permit judicial review of the refusal to revoke the deportation order.
• Queen’s Bench Division, Administrative Court: refused permission on the papers and after an oral hearing. The decision is identified in the judgment as having been made by His Honour Judge Milwyn Jarman QC.
• Asylum & Immigration Tribunal: dismissed the appellant’s Article 8 appeal in November 2007; an application for reconsideration was rejected and the subsequent challenge failed.