Cakani v Secretary of State for Home Department

The Secretary of State has power under the Immigration Act 1971 to exclude a foreign national outside the United Kingdom where exclusion is conducive to the public good. That power does not depend on detailed authorisation in the Immigration Rules. Guidance governing the exercise of a discretion must be laid before Parliament only where it contains requirements compelling a particular outcome. A voluntary departure under the Facilitated Returns Scheme may properly be taken into account when deciding whether to revoke exclusion. The decision-maker may use criteria analogous to those in paragraph 391 of the Immigration Rules, provided each case is considered on its facts and consistently with the Act and Rules. The application for judicial review was dismissed.

The claimant, an Albanian national, had been convicted of possessing false identity documents and sentenced to 12 months’ imprisonment. After receiving notice of liability to deportation, he left the United Kingdom voluntarily under the Facilitated Returns Scheme and signed a disclaimer acknowledging that exclusion was possible. The Secretary of State subsequently directed his exclusion under paragraph 320(6) of the Immigration Rules.

The claimant married a British citizen and made unsuccessful applications for entry clearance. He challenged decisions refusing to revoke the exclusion decision, alleging lack of statutory power, an immaterial mistake concerning a deportation recommendation, unlawful reliance on paragraph 391, breach of Article 8, and inadequate reasons.

1. Statutory power and the Immigration Rules. The power to exclude derived from the broad powers in sections 1 and 3 of the Immigration Act 1971, supplemented by Schedule 2 paragraph 1(3), rather than from paragraph 320(6) itself. That paragraph expressly envisaged personal exclusion decisions on conducive grounds. The Act and Rules constrained the discretion, but did not require every detail of the exclusion practice to appear in the Rules.
2. The principles in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33 and R (Munir) v Secretary of State for the Home Department [2012] UKSC 32 did not assist the claimant. Guidance must be laid before Parliament where it imposes a requirement which compels a particular outcome. Guidance which assists officials in referring cases for personal consideration, without compelling the Secretary of State’s decision, need not be laid. The CCD guidance did not require every qualifying foreign national prisoner who left under the Facilitated Returns Scheme to be excluded.
3. Mistake of fact. Although an internal record incorrectly referred to a court recommendation for deportation, the contemporaneous documents showed that the exclusion decision was based on the claimant’s criminal convictions and circumstances, not on that error. The reference to the conviction leading to deportation in a later letter was a slip and was immaterial.
4. Revocation. Neither the Act nor the Rules prescribed exhaustive criteria for revoking exclusion. It was rational and lawful to consider criteria analogous to paragraph 391 of the Immigration Rules, including the reasons for exclusion, changed circumstances, voluntary departure under the Facilitated Returns Scheme, the signed disclaimer, and the fact that the convictions remained unspent. A person who voluntarily departed after being warned that exclusion was possible could not ordinarily expect earlier return than a person deported after conviction.
5. Article 8 and reasons. The later decision expressly considered family and private life, proportionality, and the child’s best interests. The conclusion that those interests were outweighed by the cumulative countervailing considerations was open to the Secretary of State. The detailed decision also satisfied the duty to give reasons. The judicial review application was dismissed.

First-instance judicial review. Permission was granted by Collins J on 12 October 2011. The High Court dismissed the application.