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

For permission purposes, a refusal to revoke an automatic deportation order remains a refusal under section 5(2) of the Immigration Act 1971, even though section 32(6) of the UK Borders Act 2007 constrains that power. It therefore falls within section 82(2)(k) of the Nationality Immigration and Asylum Act 2002. The absence of certification under sections 94(2) or 96(1) meant that an appeal right arose. The court emphasised that it was not finally deciding the statutory issue, but held that the proposed appeal had a real prospect of success. Permission was granted to appeal and to proceed with judicial review in the Court of Appeal, and the injunction was continued.

The appellant, an Angolan national subject to an automatic deportation order, had unsuccessfully challenged deportation before the Asylum and Immigration Tribunal and the Upper Tribunal. He later made further representations based on an alleged family relationship. The Secretary of State declined to treat the representations as a fresh claim and stated that there was no further right of appeal.

On renewed judicial review proceedings, Cranston J refused permission, considering the underlying case unmeritorious. The issue before the Court of Appeal was whether the Secretary of State’s refusal to revoke the deportation order was an appealable immigration decision under section 82(2)(k) of the Nationality Immigration and Asylum Act 2002, and whether the court could dispose of the matter by reference to the merits.

Application granted. Jackson LJ granted permission to appeal and, instead, permission to proceed with the judicial review claim in the Court of Appeal. The injunction restraining removal was continued until determination of the judicial review proceedings or further order.

1. Statutory construction. Section 5(2) of the Immigration Act 1971 confers the power to revoke a deportation order. Section 32(6) of the UK Borders Act 2007 substantially constricts the exercise of that power where the order is an automatic deportation order. It does not create a separate revocation power or displace section 5(2) as the statutory source of the power.
2. A refusal to revoke an automatic deportation order is therefore, on the judge’s provisional analysis, a refusal under section 5(2) and falls within section 82(2)(k) of the Nationality Immigration and Asylum Act 2002. That paragraph neither asserts nor implies that the refusal becomes non-appealable merely because another statutory provision affects the power to revoke.
3. The concern that this construction could generate sequential hopeless appeals was answered by sections 94(2) and 96(1) of the Nationality Immigration and Asylum Act 2002, which provide certification mechanisms. The Secretary of State had not considered whether either provision should be used. In those circumstances, the appellant had a right of appeal under section 82.
4. The Administrative Court could not determine the underlying merits in place of the tribunal where Parliament had assigned the issue to the First-tier Tribunal, with an appeal to the Upper Tribunal. The judge considered that the proposed appeal had a real prospect of success under rule 52.3(6)(a) of the Civil Procedure Rules. The statutory interpretation was expressly provisional and was not binding on the full Court of Appeal.
5. Under rule 52.15(3), the court could grant permission to proceed with the judicial review claim instead of merely granting permission to appeal. Under rule 2.15(4), it could direct that the claim proceed in the Court of Appeal.

• Court of Appeal (Civil Division). Jackson LJ granted permission to appeal and permission to proceed with judicial review in the Court of Appeal.
• High Court, Administrative Court. Cranston J refused permission to proceed with judicial review on 30 November 2010. An earlier application had also been refused by HHJ Stewart on 25 October 2010, after which amended grounds were substituted.
• Upper Tribunal. The Upper Tribunal dismissed the appeal and upheld the tribunal decision on 14 June 2010.
• Asylum and Immigration Tribunal. The tribunal dismissed the appellant’s challenge to the deportation order on 25 November 2009.