SL (Vietnam) v Secretary of State for the Home Department

A discretionary immigration decision may be unlawful where the decision-maker disregards a relevant policy. The consequences of a past unlawful failure to apply a policy may remain relevant after the policy has ceased to confer an immediate entitlement.

When deciding whether deportation is conducive to the public good, the Secretary of State must consider material disadvantages caused by earlier administrative and appellate errors. These may include the loss of lawful residence, permission to work, an opportunity to seek further leave and an in-country appeal. Failure to consider such matters invalidates the decision unless the omission was wholly immaterial.

The appellant, a Vietnamese national, entered the United Kingdom unaccompanied at the age of 14. His asylum claim was refused, but the Secretary of State failed to apply a policy under which he should have received exceptional leave to remain until his eighteenth birthday. Further administrative and appellate errors prevented timely correction.

After the appellant was convicted of involvement in cannabis production, the Secretary of State decided to deport him. The Asylum and Immigration Tribunal dismissed his appeal, and Senior Immigration Judge Southern found no error of law upon reconsideration.

The appellant contended that the historic policy failure was a relevant consideration in the deportation decision and that the tribunal had erred in rejecting his claim under article 8 of the European Convention on Human Rights.

1. Appeal allowed by a majority and remitted. Jackson and Ward LJJ held that the failure to apply the Minors Policy formed part of a series of errors which deprived the appellant of lawful status and associated procedural and practical opportunities. The Secretary of State had to retake the deportation decision under section 3(5)(a) of the Immigration Act 1971 and paragraph 364 of the Immigration Rules.

2. Jackson LJ held that an immigration decision may be unlawful where it is reached in disregard of a relevant policy. The effects of the earlier failure may remain relevant even after the policy has ceased to apply. Here, proper application of the policy would have conferred leave until the appellant's eighteenth birthday. He could then have sought an extension and remained and worked lawfully while any application and appeal were determined.

3. The earlier errors did not justify or excuse the criminal offence. They nevertheless formed part of the appellant's history and could affect the exercise of the deportation discretion. The authorities confirmed that the Secretary of State should consider disadvantages caused by past failures to apply policy and the need to correct resulting injustice. It was possible, though not inevitable, that consideration of those matters would have produced a different decision.

4. Ward LJ agreed that the policy failure was a relevant factor. Since it had not been considered, the deportation decision was unlawful unless the omission was wholly immaterial. The court could not conclude that it was immaterial. The assessment of what might have happened had the appellant possessed lawful status was for the Secretary of State.

5. Patten LJ dissented on the first ground. In his view, there was no evidence that the loss of lawful status contributed to the offending or that an application for further leave would have succeeded. The earlier policy failure was therefore irrelevant to the deportation decision.

6. The second ground was rejected unanimously. The conclusion that deportation would not interfere with family life was open because the appellant's partner could accompany him to Vietnam. The court expressed no view about a future article 8 assessment, which could involve the couple's subsequently born child.

1. Court of Appeal (Civil Division): By a majority, allowed the appeal on the first ground and remitted the deportation decision to the Secretary of State. The second ground was dismissed.
2. Asylum and Immigration Tribunal, reconsideration: Senior Immigration Judge Southern held that the original tribunal had made no error of law and dismissed the application for reconsideration.
3. Administrative Court: Ordered reconsideration of the original tribunal decision.
4. Asylum and Immigration Tribunal: Dismissed the appeal against the Secretary of State's decision to make a deportation order.