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

A human rights claim need not qualify as a fresh claim under paragraph 353 of the Immigration Rules before a person may bring an in-country appeal against refusal to revoke a deportation order.

A later authoritative declaration of the law does not ordinarily justify reopening decisions which parties made under the law as previously understood. Incorrect information about appeal rights does not invalidate an otherwise valid decision notice. Where deportation was lawful and an effective out-of-country appeal remained available, the court would neither require the deportee’s return nor determine an academic dispute about whether further submissions constituted a fresh claim.

A Jamaican citizen was deported after the Secretary of State refused to revoke his deportation order and determined that further Article 8 submissions did not constitute a fresh claim under paragraph 353 of the Immigration Rules. HHJ Mackie QC dismissed his judicial review claim: [2008] WHC 2778 (Admin).

After that decision, the Court of Appeal and Supreme Court established in BA (Nigeria) that an in-country appeal did not depend upon the existence of a fresh claim. The appellant contended that the earlier misunderstanding of the law invalidated the basis on which his deportation proceeded and justified an order securing his return. Alternatively, he challenged the conclusion that his submissions were not a fresh claim.

1. Appeal dismissed. The court unanimously held that the appellant’s deportation was lawful and that the later clarification of his appeal rights did not require the consequences of earlier procedural choices to be reversed.
2. Under section 92(4) of the Nationality, Immigration and Asylum Act 2002, a human rights claim supporting an in-country appeal need not constitute a fresh claim within paragraph 353 of the Immigration Rules. Both parties had previously proceeded upon a reasonable but erroneous understanding of the law. Nevertheless, the appellant could have asserted his statutory right of appeal against the refusal to revoke the deportation order. He did not do so, and the unappealed decision remained valid.
3. The incorrect appeal information in the Secretary of State’s decision notice did not invalidate that notice. Although regulation 5(3) of the Immigration (Notices) Regulations 2003 required appeal information to be included, the error did not make the ensuing deportation unlawful. The cases in which courts had secured the return of unlawfully removed individuals were therefore distinguishable.
4. The appellant could seek permission from the First-tier Tribunal to appeal out of time. The Secretary of State would not oppose an extension if an appeal was commenced within 28 days. Although section 95 prevented reliance from abroad on section 84(1)(g), the appellant could rely on section 84(1)(c) in respect of his own Article 8 rights and section 84(1)(e) in respect of the rights of his family. The Secretary of State’s concession to that effect would bind him before the First-tier Tribunal and Upper Tribunal.
5. An appeal from Jamaica would be more difficult but remained effective. The material issues depended principally upon documentary evidence, including medical reports, and the appellant could participate by video link. The court had no power to order the Secretary of State to use best endeavours to return him or, alternatively, would decline to exercise any such power.
6. The dispute about whether the further submissions were a fresh claim had become academic because its resolution could not affect the appellant’s statutory appeal rights. The court would not entertain an appeal on an academic issue.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2010] EWCA Civ 160. The deportation remained lawful, and the fresh-claim issue was academic.
2. Administrative Court: HHJ Mackie QC dismissed the judicial review claim, holding that the Secretary of State had lawfully concluded that the further submissions did not amount to a fresh claim: [2008] WHC 2778 (Admin).