The Secretary of State for the Home Department v Joseph Hilman Greenwood

In automatic-deportation cases, the appeal lies only against the Secretary of State’s decision that section 32(5) applies, not against the deportation order itself. A notice recording that decision is not unlawful merely because it is dated after the deportation order. The making of an order expressly under section 32(5) itself indicates that the decision-maker considered that section applicable.

The statutory scheme permits reconsideration after an order has been made, including consideration of exceptions under section 33. A later notice may facilitate the statutory appeal and give reasons without invalidating the order or the decision. A tribunal must determine grounds raised where they remain material. Any directions given after allowing an appeal must be clear. The First-tier Tribunal does not appear to have a power simply to remit a matter to the Secretary of State.

The claimant, a Jamaican national with serious drug convictions, was the subject of an automatic deportation order dated 17 June 2013. On 24 June 2013 the Secretary of State served a notice stating that section 32(5) of the UK Borders Act 2007 applied.

The First-tier Tribunal allowed the claimant’s appeal on the basis that the later decision was not in accordance with the law because it followed the deportation order. It did not determine the claimant’s article 8 ground and purported to remit the matter to the Secretary of State.

The Secretary of State appealed. The central issue was whether the sequence of dates invalidated the appealable section 32(5) decision and, if not, what consequences followed for the First-tier Tribunal’s determination.

1. Appeal allowed. The First-tier Tribunal’s determination was set aside and the case was remitted to the First-tier Tribunal.

2. Under section 82(3A) of the Nationality, Immigration and Asylum Act 2002, automatic deportation involves two distinct events: the making of the deportation order, which is not appealable, and the Secretary of State’s decision that section 32(5) of the UK Borders Act 2007 applies, which is appealable. The First-tier Tribunal had therefore erred by treating a supposed “decision to deport” as the decision before it.

3. Section 32(5) imposes the mandatory rule that a deportation order must be made where no exception in section 33 applies. The making of an order expressly under section 32(5) is itself the clearest indication that the Secretary of State decided that section 32(5) applied. The statutory scheme also contemplates reconsideration after an order is made, including consideration of representations which may establish a section 33 exception.

4. Accordingly, the fact that the appealable notice and reasons were dated after the deportation order did not itself show an unlawful process or invalidate the decision that section 32(5) applied. The notice required by the Immigration (Notices) Regulations 2003 facilitates the right of appeal and communicates the reasons. Its date does not establish that the reasons were first identified only after the order was made. Nor was there evidence that the existing order prevented fair reconsideration.

5. The First-tier Tribunal also erred by not deciding the article 8 ground once its first-ground conclusion was found erroneous. Although it can be proper in practice to leave other grounds undecided after allowing an appeal, that course cannot sustain the determination if the ground on which the appeal was allowed fails.

6. The purported remittal was not a clear or lawful direction. The First-tier Tribunal has power to allow or dismiss an appeal and to give directions, but it does not appear to have a general power to remit a matter to the Secretary of State. Directions must be sufficiently clear for the parties to know whether to challenge them and whether they have been complied with.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s determination, and remitted the case for determination of the outstanding article 8 ground.
• First-tier Tribunal: Allowed the claimant’s appeal to the extent that it held the later notice under section 32(5) was not in accordance with the law, without deciding article 8, and purported to remit the matter to the Secretary of State.