Amir Ali v Secretary of State for the Home Department

For revocation of indefinite leave under section 76(1) of the Nationality, Immigration and Asylum Act 2002, a person must actually be liable to deportation within section 3(5) or (6) of the Immigration Act 1971. A foreign criminal’s deportation being statutorily conducive to the public good under section 32(4) of the UK Borders Act 2007 does not itself satisfy section 3(5)(a). The Secretary of State must also deem that individual’s deportation conducive to the public good. Where no such deeming has been made, the statutory precondition for revocation is absent, even if deportation is presently prevented by Convention rights.

The appellant, a Pakistani national with indefinite leave to remain, received a 21-month custodial sentence for robbery and handling stolen goods. He was a foreign criminal for the purposes of the UK Borders Act 2007.

The Secretary of State decided that Article 8 prevented his deportation at that time, but revoked his indefinite leave under section 76(1) of the Nationality, Immigration and Asylum Act 2002 and granted three years’ discretionary leave. Immigration Judge Meah dismissed his appeal. Permission was granted to resolve the untested issue of whether automatic-deportation provisions made him “liable to deportation” for section 76 purposes.

1. Appeal allowed. The Secretary of State’s revocation of indefinite leave under section 76(1) of the Nationality, Immigration and Asylum Act 2002 was unlawful. The Immigration Judge therefore erred in dismissing the appeal.

2. Section 76(4) adopts the meaning of “liable to deportation” in section 3(5) and (6) of the Immigration Act 1971. The relevant routes are a deeming by the Secretary of State that deportation is conducive to the public good, deportation of a qualifying family member, or a court recommendation for deportation following conviction.

3. None of those routes applied. In particular, the Secretary of State had not deemed the appellant’s deportation conducive to the public good. His conviction alone did not establish liability under section 3(5)(a) or (6).

4. The appellant was a foreign criminal. Exception 1 in section 33 of the UK Borders Act 2007, arising from the accepted Article 8 barrier, disapplied the duty in section 32(5) to make a deportation order. Section 32(4) nevertheless applied and made deportation conducive to the public good for the purpose of section 3(5)(a).

5. That statutory consequence was not identical to the Secretary of State’s individual deeming required by section 3(5)(a). Section 32(4) removed any dispute about the basis of such a deeming if made; it did not replace the decision. Until the Secretary of State made that decision, the appellant was not liable to deportation and section 76 could not be used.

6. The Tribunal did not decide whether a Convention-rights bar meant that a person could not be deported “for legal reasons” under section 76(1). Its observations on that issue were expressly provisional.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal and held that the revocation decision under section 76(1) of the Nationality, Immigration and Asylum Act 2002 was unlawful.

• First-tier Tribunal (Immigration and Asylum Chamber): Immigration Judge Meah had dismissed the appeal, holding that the section 76 power was exercisable and properly exercised.