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

When removal under an unlawful immigration certificate deprives a person of a statutory in-country appeal, that deprivation is the starting point and weighs strongly in favour of a mandatory order for return. It creates no presumption of return. The court retains a wide discretion and must balance all relevant, fact-sensitive circumstances.

An in-country appeal is important, and an out-of-country appeal has disadvantages, but such an appeal is not invariably ineffective. Its practical effectiveness depends on the issues, the available evidence, communication with legal representatives and the feasibility of participation by video link.

A Chinese national was deported after the Secretary of State refused to revoke his deportation order and certified the case under Section 96(2) of the Nationality, Immigration and Asylum Act 2002. The certificate prevented an appeal against that refusal. The Secretary of State later withdrew the certificate, agreed to reconsider the application, but declined to return the appellant for the reconsideration or any subsequent appeal.

Sir Michael Harrison assumed that the certificate was unlawful but refused a mandatory order requiring the appellant's return: [2011] EWHC 2936 (Admin). The issue was whether he had adopted the correct approach to his discretion, including whether the loss of an in-country appeal created a presumption in favour of return.

Appeal dismissed. Richards LJ gave the judgment of the court. Elias and Lloyd LJJ agreed.

1. The judge was entitled to assume, without deciding, that the Section 96(2) certificate was unlawful. That assumption carried as much weight in the discretionary assessment as an actual ruling would have carried. Full argument on the certificate's lawfulness had not occurred and a ruling was unnecessary.

2. Removal on the strength of an unlawful certificate deprives the person unlawfully of the statutory in-country appeal. This must be the court's starting point and is a strong factor favouring return, because return would restore the position that lawful action would have preserved. It is nevertheless unhelpful to describe that consideration as creating a presumption. The discretion to grant a mandatory injunction remains wide. All relevant circumstances must be balanced, and such cases are fact-sensitive.

3. The judge had adopted that approach in substance. He treated the assumed unlawfulness and resulting loss of the in-country appeal as the appellant's strongest consideration. He was also entitled to regard the removal's apparent lawfulness at the time as highly material against return. The certificate was valid on its face, permission for judicial review had been refused on the papers, and no oral application for a stay was made before removal.

4. The judge properly treated the child's best interests as a primary consideration under ZH (Tanzania) and considered Section 55 of the Borders, Citizenship and Immigration Act 2009. He was entitled to assess the likely period of family separation alongside the other circumstances.

5. The statutory in-country right of appeal is important and an out-of-country appeal has undoubted disadvantages. Such an appeal is not, however, invariably ineffective. In this case the partner could give evidence in the United Kingdom, communications with the family and solicitors were practicable, and no evidence showed that participation from China by video link would be unavailable or inadequate for the relatively simple factual credibility issue.

6. The seriousness of the conviction was a relevant but non-determinative public-interest consideration. The judge took all relevant matters into account and reached a conclusion reasonably open to him. There was therefore no basis for appellate interference.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2012] EWCA Civ 1022 . The court upheld the refusal to order the appellant's return.
2. Administrative Court: Sir Michael Harrison assumed that the Section 96(2) certificate was unlawful but refused, in the exercise of his discretion, to require the Secretary of State to return the appellant to the United Kingdom: [2011] EWHC 2936 (Admin).