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

Where a person would have been deported after a full appeal process but leaves the United Kingdom before a deportation order is made, the Secretary of State may impose an exclusion order giving effect to at least the same period of exclusion. Natural justice does not ordinarily require a further opportunity for representations where the person’s case has already been fully considered and the proposed exclusion has been notified without representations being made.

An exclusion order may be indefinite, but the person may apply for it to be lifted. The absence of a further pre-decision hearing will not justify relief where the person is no worse off and there is no material prejudice.

The claimant sought judicial review of the Secretary of State’s decision to exclude him from the United Kingdom. He had been convicted of possessing cannabis with intent to supply and had successfully avoided the making of a deportation order by leaving the United Kingdom after his appeal rights were exhausted.

The Secretary of State then considered an application under paragraph 320(6) of the Immigration Rules and made an exclusion order. The claimant argued that he had not been given a proper opportunity to make representations and that compassionate circumstances had not been considered. The central issues were whether the procedure was unfair and whether the exclusion order placed him in a worse position than a deportation order.

1. Claim dismissed. The claimant accepted that an exclusion order framed with a minimum period of 10 years, mirroring the consequence of a deportation order under paragraph 391 of the Immigration Rules, could not sensibly be challenged. That substantially disposed of the claim.
2. Fairness depends on the circumstances of the individual case and the legal framework. The claimant had received a full appeal hearing before an independent tribunal, where his representations and human rights arguments had been considered and rejected. His solicitors had then been notified that an exclusion order would be sought, but made no further representations.
3. In those circumstances, natural justice did not require the Secretary of State to seek further representations or wait for them before deciding the application. Good administration required that a person who would have been deported had he remained in the United Kingdom should be subject, at minimum, to the same exclusion.
4. The indefinite nature of the exclusion order did not create material prejudice. The claimant remained able to apply for the order to be lifted, including after the equivalent 10-year period, and the making of the order did not itself count against that application. The issue would be whether compelling circumstances justified departure from the policy concerning persons convicted of serious drug offences.
5. Even if procedural unfairness had been established, relief would have been refused in the court’s discretion because there was no evidence of a significant change of circumstances and the policy was stated with clarity.