Arthur Obafemi Cecil Decker, R (On the Application Of) v Secretary of State for the Home Department & Anor

A deportation order is not invalid merely because the person concerned is outside the United Kingdom when it is signed. The statutory scheme permits an order both to require departure and to prohibit re-entry, and internal guidance cannot restrict the statute’s operation.

There is no requirement to exhaust all possible appeal rights before detention pending deportation. Detention remains lawful if the Hardial Singh principles are satisfied, including a genuine prospect of removal, reasonable diligence and consideration of absconding risk.

An extended or other family member under Article 3(2) of Directive 2004/38/EC is not a “family member” for Article 27. The higher threshold for a Cart challenge applies separately to each ground.

The claimant, a Sierra Leonean national detained pending removal, brought three consolidated judicial review claims. He challenged the validity of a deportation order signed while he was in Ireland, his detention, decisions concerning an EEA residence-card application, the Upper Tribunal’s refusal of permission to appeal, refusal to revoke the deportation order, certification of his human rights claim, and the notification of appeal rights.

The central issues were whether presence in the United Kingdom was required when a deportation order was made; whether detention was premature; whether an extended family member could invoke Article 27 of Directive 2004/38/EC; whether the First-tier Tribunal’s findings were unfair or unsafe; and whether the later decisions were unlawful.

1. Deportation order. The Deportation Order was valid. Section 5(1) of the Immigration Act 1971 contains no express requirement that the subject be in the United Kingdom when the order is signed. Reading such a condition into the statute would undermine its purpose and create an artificial opportunity to evade deportation by leaving the country temporarily. Immigration Rules and internal instructions guide officials on whether deportation or exclusion is appropriate; they do not limit statutory validity. Ground 1 failed.
2. Detention. The Secretary of State had power to detain under paragraph 2(2) or, once the order was in force, paragraph 2(3) of Schedule 3 to the 1971 Act. There was no requirement to await exhaustion of every possible appeal. Applying Hardial Singh, [1984] 1 WLR 704, as clarified in R (I) v Secretary of State for the Home Department, [2003] INLR 196, detention was lawful because deportation was genuinely intended, removal remained reasonably achievable, and the claimant presented a substantial risk of absconding. The pursuit of legal challenges did not automatically make detention unlawful. Ground 2 failed.
3. EU residence rights. An “other family member” under Article 3(2)(a) of Directive 2004/38/EC is not a “family member” within Article 2(2) or Article 27. The claimant therefore had no automatic EU right of residence and Article 27’s public-policy safeguards did not apply to him as a matter of EU law. His protection arose from the national facilitation scheme under Article 3(2) and the Immigration (European Economic Area) Regulations 2006.
4. Residence-card discretion. Regulation 17(4) conferred a discretion to issue a residence card to an extended family member. The First-tier Tribunal lawfully considered the claimant’s previous dishonesty, later attempted deception, low risk of reoffending, family circumstances, integration and links with Sierra Leone. Those matters provided a rational basis for finding a genuine, present and sufficiently serious threat to the effective immigration-control system under regulation 21. The reasoning was case-specific, not general prevention. Ground 3 failed.
5. Cart challenge and fairness. The higher “second appeals” threshold applied separately to each ground of a Cart challenge. The claimant was on notice of the sham-marriage and Ireland issues through the refusal letters and had failed to address them before the First-tier Tribunal. The Upper Tribunal’s refusal disclosed no important point of principle or practice and no compelling reason to hear the challenge. Ground 4 failed.
6. Remaining grounds. The challenge to refusal to revoke the Deportation Order was unarguable because the order was valid. The certification of the human rights claim as clearly unfounded was lawful, and there was no in-country right of appeal because the claimant was neither an EEA national nor a qualifying family member and his human rights claim had been validly certified. Permission was refused on grounds 5, 6 and 7.
7. All three judicial review claims failed and were dismissed.

The judgment records a lengthy procedural history involving three consolidated judicial review claims. The Court of Appeal granted permission on specified grounds on 12 March 2013, and McCombe LJ remitted one further ground to the Administrative Court on 19 June 2013. The Administrative Court determined all consolidated grounds and dismissed each claim.