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

Under the automatic deportation scheme, the UK Borders Act 2007 circumscribes existing deportation powers under the Immigration Act 1971; it does not create separate powers to make or revoke deportation orders. A refusal to revoke an automatic deportation order therefore remains an immigration decision under section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002. Where the person has made an asylum or human rights claim in the United Kingdom, section 92(4) gives an in-country right of appeal. That right cannot be removed by administrative practice or an asserted expectation that further representations will be treated as challenging the original decision.

The claimant, a Turkish national serving a sentence for serious drug offences, was made subject to an automatic deportation order under section 32(5) of the UK Borders Act 2007. After an earlier appeal had been dismissed, he made further asylum and human rights representations and asked the Secretary of State to revoke the order. The request was refused and the representations were not treated as a fresh claim under paragraph 353 of the Immigration Rules.

The claimant sought judicial review, arguing that the refusal was an immigration decision carrying an in-country right of appeal under sections 82(2)(k) and 92(4) of the Nationality, Immigration and Asylum Act 2002. The central issue was whether the 2007 Act displaced that statutory right.

1. The claim succeeded. The refusal of 13 October 2010 to revoke the automatic deportation order was an immigration decision under section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002. Because the claimant had made asylum and human rights claims in the United Kingdom, section 92(4) gave him an in-country right of appeal.
2. The UK Borders Act 2007 does not establish a separate power to make or revoke a deportation order. Sections 32 and 33 regulate the exercise of the existing powers under sections 3(5) and 5(1) and (2) of the Immigration Act 1971. Section 32(6), by referring to a deportation order made in accordance with section 32(5), confirms that analysis.
3. The decision that section 32(5) applies and the later decision whether to revoke a deportation order are distinct decisions. The first concerns whether the person is a foreign criminal and whether an exception prevents the statutory obligation from applying. The second involves the expressly preserved power to revoke an order when an exception applies or section 34(4) is engaged.
4. Section 82(3A) removes section 82(2)(j) for a decision to make an automatic deportation order, while expressly making the decision that section 32(5) applies an immigration decision. It does not remove section 82(2)(k), which concerns refusal to revoke. Parliament could have excluded that provision but did not do so.
5. Section 33(1) does not create a general power to disapply section 32(5). It identifies circumstances in which the statutory provisions do not apply and which must be considered in deciding whether section 32(5) applies. Even where an exception is engaged, a deportation order may still be made if proportionately justified.
6. The Secretary of State could not avoid the statutory appeal right by treating an application to revoke as representations against the original section 32(5) decision. The statutory language required clear words before the right of appeal could be abolished. The order restraining removal was continued until further order.

The proceedings were a first-instance judicial review. Burnett J granted permission and continued interim protection against removal; the present court determined the substantive issue and granted the claim.