George v Secretary of State for the Home Department

Under section 5(1) of the Immigration Act 1971, a deportation order invalidates existing leave to remain. A successful appeal against refusal to revoke that order does not automatically revive indefinite leave to remain. The Secretary of State retains a discretion over whether to grant indefinite leave or shorter discretionary leave, provided the person is not removed in breach of article 8. A human-rights finding preventing removal does not itself prescribe the person’s immigration status. A policy of granting six months’ discretionary leave to serious offenders was lawful and rational where continuing review of criminality and family circumstances was justified.

The claimant, a Grenadian national resident in the United Kingdom since childhood, challenged the Secretary of State’s refusal to reinstate his indefinite leave to remain. His leave had been invalidated when a deportation order was made after serious drug convictions. The order was later not revoked following an appeal, but the claimant’s appeal ultimately succeeded because removal would breach his article 8 rights. The claimant argued that the successful appeal rendered the invalidation of his indefinite leave a nullity, or alternatively required the Secretary of State to grant indefinite leave. He also sought to raise a late challenge concerning an unpublished policy.

The central issues were whether the appeal revived indefinite leave and whether the Secretary of State retained a discretion to grant only limited leave.

1. Late amendment. The proposed challenge to the unpublished policy was unarguable. The policy concerned cases involving a 12-month sentence, whereas the claimant had received sentences of three and four years. The claimant could not identify any realistic way in which the policy could have affected the decision. Permission to amend was refused.
2. Effect of the deportation order. Section 5(1) of the Immigration Act 1971 clearly provides that a deportation order invalidates leave granted before it was made or while it remains in force. The Act contains express provisions extending leave during certain appeals under section 3D. No equivalent provision restores leave after a successful appeal against refusal to revoke a deportation order. Paragraph 392 of the Immigration Rules likewise indicates that revocation does not restore the previous status. Indefinite leave therefore remained revoked.
3. No automatic entitlement to indefinite leave. The tribunal’s decision meant that the claimant could not lawfully be removed. It did not direct the Secretary of State to reinstate indefinite leave or determine the immigration status to be granted. The authorities, including C v Secretary of State for the Home Department, N v Secretary of State for the Home Department and IT (Sierra Leone) v Secretary of State for the Home Department, supported a discretion to grant limited leave and to keep the position under review.
4. Distinction from other authority. Boafo concerned an appeal which necessarily required the Secretary of State to give effect to an adjudicator’s decision granting indefinite leave. This case concerned only a decision that removal would breach article 8. The relevant obligation was not to remove the claimant.
5. The claimant’s article 8 appeal was borderline and depended on changing personal and family circumstances. Granting six months’ discretionary leave was lawful and sensible. The application for judicial review was dismissed.

First-instance judicial review application. The judgment states that the claimant’s earlier appeal against refusal to revoke the deportation order succeeded on 31 March 2009 and was upheld on reconsideration on 27 April 2009.