R v The Secretary of State for the Home Department

Revocation of a deportation order under section 5(2) of the Immigration Act 1971 operates prospectively. It does not reverse the section 5(1) invalidation of leave caused when the order was made. Previous indefinite leave therefore does not revive.

A person may remain liable to deportation although removal is presently barred by Convention rights. The Secretary of State must regularise that person’s presence but may do so through limited or conditional leave. Later immigration legislation cannot reliably determine the meaning of the 1971 provision, particularly given the rapid and sometimes imperfectly cohesive development of the statutory scheme.

The respondent had held indefinite leave to remain. Following several convictions, the Secretary of State deemed his deportation conducive to the public good and made a deportation order. An immigration judge subsequently determined that removal would infringe his article 8 family-life rights, with the agreed consequence that the deportation order was revoked.

The Secretary of State declined to recognise a revival of indefinite leave and instead granted successive periods of discretionary leave. The respondent’s judicial review claim failed at first instance but succeeded by a majority in the Court of Appeal: [2012] EWCA Civ 1362; [2013] 1 WLR 1319.

The central issue was whether revocation under section 5(2) of the Immigration Act 1971 retrospectively restored leave invalidated by section 5(1), or left the Secretary of State free to decide afresh what leave should be granted.

1. Appeal allowed unanimously. Lord Hughes delivered the judgment, with which Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Toulson agreed. The first-instance order dismissing the judicial review claim was reinstated.

2. Section 5(2) of the Immigration Act 1971 did not provide that revocation of a deportation order retrospectively undid the section 5(1) invalidation of earlier leave. Although the statutory words were capable of either construction, their natural meaning was prospective. Revocation ended the order’s continuing operation but did not undo legal consequences occurring while it remained in force. Revival was a significant legal consequence which Parliament would probably have stated expressly had it intended that result.

3. The history of the immigration rules strongly supported that construction. Rules prepared during the passage of the 1971 Act, and every subsequent relevant statement of rules, treated revocation as making a person eligible to seek admission rather than restoring earlier leave. That consistent history refuted the Court of Appeal majority’s conclusion that Parliament must have assumed revival when enacting section 76 of the Nationality, Immigration and Asylum Act 2002.

4. Section 76(1) of the 2002 Act retained an independent purpose. It enabled indefinite leave to be revoked where a person was liable to deportation but a legal obstacle was recognised before any deportation order had been made. Accordingly, the provision was not rendered redundant by construing section 5(2) as producing no revival. Stanley Burnton LJ’s example of revoking an order to permit a previously deported person to make a limited visit provided additional support for that construction.

5. The different removal regime under section 10 of the Immigration and Asylum Act 1999, and hypothetical difficulties arising under the automatic-deportation scheme in the UK Borders Act 2007, could not determine the meaning of legislation enacted substantially earlier. Later statutes in pari materia should be construed consistently where possible, but are not reliable guides to an earlier enactment in a rapidly changing legislative field.

6. The respondent remained liable to deportation even though Convention rights presently prevented removal. His presence had to be regularised, but indefinite leave did not follow. Successive grants of limited leave were lawful, and any future grant of indefinite leave remained for the Secretary of State to determine.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was allowed unanimously. The first-instance order dismissing the judicial review claim was reinstated: [2014] UKSC 28.
2. Court of Appeal: By a majority, the court allowed the respondent’s appeal and accepted that his indefinite leave had revived: [2012] EWCA Civ 1362; [2013] 1 WLR 1319.
3. High Court: The judge dismissed the respondent’s claim for judicial review. No citation is stated in the judgment.