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

For section 104(4) of the Nationality, Immigration and Asylum Act 2002, a person “leaves” the United Kingdom when, by a voluntary physical act, he or she departs it. The provision does not require an intention never to return, nor a minimum actual or intended period of absence. A statutory immigration appeal is therefore abandoned when the appellant voluntarily travels abroad, even temporarily.

The court retains a residual judicial-review jurisdiction, but judicial review is not a general substitute for an appeal treated as abandoned. The statutory policy must be respected. In an ordinary case, converting an abandoned appeal into judicial review would frustrate that policy and should be refused.

The applicant, a Ghanaian national, appealed against a decision to make a deportation order. His appeal was dismissed by the First-tier Tribunal and then by the Upper Tribunal. While seeking permission to appeal to the Court of Appeal, he voluntarily travelled to Ghana, knowing that he would be unable to return while the deportation decision remained outstanding.

His departure led to an order treating his application as abandoned under section 104(4) of the Nationality, Immigration and Asylum Act 2002. He applied to set that order aside. Alternatively, he asked the court to treat his application for permission to appeal as an application for permission to apply for judicial review of the Upper Tribunal’s decision. The central issues were the meaning of “leaves” in section 104(4), and whether judicial review should be available after abandonment.

1. Application refused. The applicant’s application for permission to appeal from the Upper Tribunal had to be treated as abandoned under section 104(4) of the Nationality, Immigration and Asylum Act 2002. The court would declare that consequence, refuse permission to appeal, and refuse permission to apply for judicial review.

2. Per Toulson LJ, with whom Sullivan LJ agreed, “leaves” in section 104(4) has a physical meaning. It is satisfied where a person voluntarily departs from the United Kingdom, whether the absence is short or long and whether or not the person intends to return. The word implies a voluntary act, so an involuntary removal such as kidnapping would be different. The court left open the position of a person who briefly travels from and returns to United Kingdom shores without landing in another country.

3. The contrary construction would require the court to create an arbitrary threshold for a short absence, or to imply an unexpressed requirement that the departure be permanent. Neither course was justified by the statutory language or immigration context. A person who travels to another country has left the United Kingdom and will need permission to enter again. The applicant had plainly done so by travelling to Ghana.

4. The court followed [2011] EWCA Civ 1420 on the application of section 104(4) to an appeal from the Upper Tribunal to the Court of Appeal. It accepted the relevant approach in [2000] EWCA Civ 10, but rejected Mummery LJ’s obiter suggestion in [2003] EWCA Civ 1562 that a short holiday followed by a prompt return might not amount to leaving the United Kingdom.

5. The court possessed residual judicial-review jurisdiction, notwithstanding the statutory appeal scheme. However, the absence of an ouster clause did not make judicial review a general back-up remedy. Treating this ordinary abandoned appeal as judicial review would undermine Parliament’s legitimate purpose in clearing pending immigration appeals when appellants voluntarily leave the United Kingdom. The court left open whether an exceptional case might justify judicial review, but held that this applicant showed no arguable ground.

• Court of Appeal (Civil Division): Application refused. The court declared that the application for permission to appeal was abandoned under section 104(4) of the Nationality, Immigration and Asylum Act 2002, and refused permission to apply for judicial review: [2012] EWCA Civ 827.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the applicant’s appeal on 5 April 2011 and refused permission to appeal to the Court of Appeal on 16 June 2011.

• First-tier Tribunal: Dismissed the applicant’s appeal against the decision to make a deportation order on 7 December 2010.