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

When a deportation order has invalidated pre-existing leave, revocation of the order removes that continuing statutory consequence and the earlier indefinite leave to remain revives. The Secretary of State may nevertheless exercise the power under section 76(1) of the Nationality, Immigration and Asylum Act 2002 to revoke that leave where the person remains liable to deportation but cannot lawfully be deported. That decision is appealable. The construction preserves lawful immigration status and independent adjudication. It does not make the earlier leave retrospectively unlawful.

The appellant, a Grenadian national who had held indefinite leave to remain, became subject to a deportation order under section 5(1) of the Immigration Act 1971 following serious offending. An immigration tribunal later held that deportation would breach his Article 8 rights, and the order was revoked. The Secretary of State granted successive periods of discretionary leave but did not restore the earlier indefinite leave.

The Administrative Court dismissed the judicial review claim in [2011] EWHC 3247 (Admin). Permission to appeal was limited to the statutory-construction issue: whether revocation of the deportation order revived the earlier indefinite leave, or instead left the Secretary of State with a discretion to grant fresh leave.

1. The appeal was allowed by a majority comprising Sir Stephen Sedley and Lord Justice Maurice Kay. Lord Justice Stanley Burnton dissented.
2. Section 5(1) of the Immigration Act 1971 invalidates existing leave to enter or remain when a deportation order is made. That effect is prospective. It does not render the holder’s earlier lawful presence retrospectively unlawful.
3. The majority construed section 5(2) as removing the continuing legal effect of the deportation order when it is revoked. The order can no longer invalidate the earlier leave. The appellant’s indefinite leave therefore revived on revocation, subject to any fresh lawful exercise of the Secretary of State’s power under section 76(1) of the Nationality, Immigration and Asylum Act 2002.
4. Section 76(1) applies where a person was initially liable to deportation, became subject to a deportation order, and remains liable to deportation after its revocation, but cannot be deported for legal reasons. The Secretary of State may revoke the revived indefinite leave. Such a decision gives rise to an appealable immigration decision under section 82(2)(f) of the 2002 Act.
5. Lord Justice Stanley Burnton would have dismissed the appeal. He considered that revocation ended the deportation order for the future without restoring the earlier leave, partly because the appellant’s conduct had forfeited it and the contrary construction created difficulties where a deported person later sought temporary admission.

The matter was not otherwise determined on the merits of any future appeal against revocation of the indefinite leave.

1. Court of Appeal (Civil Division): The appeal was allowed by a majority on the statutory-construction issue.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: His Honour Judge Bidder QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim in [2011] EWHC 3247 (Admin). Permission to appeal was granted only on the first issue.