Pryor, R (On the Application Of) v The Secretary of State for the Home Department

A decision to make a deportation order is distinct from the making of the order. Once a deportation order made under section 5(1) of the Immigration Act 1971 is revoked, the underlying decision falls away. A further deportation order therefore requires a further appealable decision to make it.

Further representations amount to a fresh claim where they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success. Evidence that a spouse cannot obtain entry to the country of removal may satisfy that threshold where the earlier assessment of family life depended on the spouse being able to relocate or visit.

The claimant, a Chinese national married to a British citizen, challenged a second deportation order and refusals to treat further Article 8 representations as a fresh claim. Her first deportation order had been made under section 3(5) of the Immigration Act 1971, then revoked while an outstanding application was considered. A second order was subsequently made without a further decision to make a deportation order.

The claimant also relied on evidence that the Chinese authorities had refused her husband's applications for visas. The central issues were whether the second deportation order was lawful and whether the refusal to treat the further representations as a fresh claim was Wednesbury unreasonable.

1. The claim succeeded. The second deportation order dated 29 March 2012 was unlawful and was liable to be quashed. The decisions dated 29 February and 26 March 2012 were also quashed. The defendant was ordered to pay the claimant's costs.

2. Sections 3(5) and 5(1) of the Immigration Act 1971, read with section 82 of the Nationality, Immigration and Asylum Act 2002, distinguish between the appealable decision to make a deportation order and the subsequent making of the order. The order cannot ordinarily be made while an appeal against the decision could be brought or remained pending.

3. Section 5(2) of the Immigration Act 1971 does not limit revocation to cases where the individual has applied for it. The Secretary of State may revoke an order of her own motion. However, revocation causes the original decision to make the order to fall away. A fresh decision is therefore required before another lawful deportation order can be made. The motive for revocation does not alter that principle.

4. The making of the second deportation order was not itself an appealable immigration decision, and the letter dated 26 March 2012 was merely a repetition of the earlier refusal. Neither gave rise to a further right of appeal.

5. Applying paragraph 353 of the Immigration Rules and the approach in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the decision-maker had to ask whether the new material was significantly different and, if so, whether it created a realistic prospect that a tribunal would find removal disproportionate. The refusals of the husband's Chinese visas were materially different because the earlier assessment had proceeded on the basis that he could relocate to, or visit, China. Given the continuing marriage and the resulting inability to maintain physical family life, the refusal to treat the representations as a fresh claim was Wednesbury unreasonable. The claimant's immigration history and convictions remained relevant but did not cure the error.

The judgment records that the Asylum and Immigration Tribunal dismissed the claimant's appeals on 23 April 2009. Applications for reconsideration were refused, and the claimant's appeal rights became exhausted. Permission for the present judicial review claim was granted by Burnett J on 23 January 2013. The Administrative Court allowed the claim and quashed the second deportation order and the relevant fresh-claim decisions.