The Secretary of State for the Home Department v ZP (India)

An application made from outside the United Kingdom to revoke a deportation order is governed by paragraph 391 of the Immigration Rules. The decision-maker must assess whether maintaining the order for its prescribed period is proportionate. The prescribed period represents the starting assessment of the public interest, and early revocation requires very compelling reasons.

The passage of time may strengthen an otherwise compelling case but cannot alone justify early revocation. The default is that a deportee serves the full prescribed period. The public interest includes individual prevention, general deterrence, society’s revulsion and public confidence. A child’s best interests are a primary, but not the paramount, consideration.

The respondent, an Indian national, was convicted of immigration-related dishonesty and sentenced to two consecutive terms of 12 months’ imprisonment. A deportation order was made in 2008 and enforced in 2009, separating her from her British husband and young son.

She later applied from India for revocation, relying on article 8 of the European Convention on Human Rights, section 55 of the Borders Citizenship and Immigration Act 2009 and evidence of the damaging effect of the separation upon her son. The First-tier Tribunal dismissed her appeal. Its decision was subsequently set aside by consent, and the Upper Tribunal remade the decision, allowed the appeal and revoked the order.

The Secretary of State appealed. The central issues were which statutory and Immigration Rules provisions governed a post-deportation application, what standard governed early revocation, and whether the Upper Tribunal’s proportionality assessment was legally sustainable.

1. Appeal dismissed. Section 32(6) of the UK Borders Act 2007 contains alternative gateways. When a foreign criminal applies from outside the United Kingdom, the Secretary of State may revoke the deportation order even though no section 33 exception applies. The public interest supporting exclusion nevertheless continues after deportation: paras [14]–[15].

2. Paragraph 390A of the Immigration Rules governs pre-deportation revocation applications. Paragraph 391 governs applications by people who have already been deported. Paragraph 391A does not apply to a case covered by paragraph 391, while paragraph 392 merely explains the effect of revocation: paras [21]–[27].

3. Under paragraph 391, the decision-maker must assess the proportionality of maintaining the order for the prescribed period. The public interest in continued exclusion must be balanced against interference with private and family life. The prescribed period embodies the Secretary of State’s assessment of the public interest and supplies the starting point. Revocation before its expiry therefore requires compelling reasons. This exercise is broadly the same as the article 8 assessment described in MF (Nigeria) [2013] EWCA Civ 1192: paras [23]–[25].

4. Time already spent outside the United Kingdom can strengthen a case supported by compelling factors. It cannot, by itself, provide a compelling reason for early revocation. Subject to specific compelling reasons, the default is that the deportee serves the whole prescribed period: para [25].

5. A child’s best interests are a primary consideration under section 55 of the Borders Citizenship and Immigration Act 2009, but they are not the primary consideration. Ordinary harm to children from family separation does not itself establish exceptional circumstances. The tribunal must identify with particularity the circumstances said to be exceptional: paras [29], [46].

6. The public interest is not confined to the risk of reoffending. It also encompasses general deterrence, society’s revulsion at serious offending and public confidence. Read fairly, the Upper Tribunal had considered those elements despite its confusing use of the term “deterrence”: paras [43]–[44].

7. The case was close to the borderline, but the Upper Tribunal was entitled to find real and increasing psychological damage to the child, substantially caused by separation from his mother. It could also consider the respondent’s four-year exclusion and the likely effect of revocation upon public confidence. Its conclusion that very compelling circumstances outweighed continued exclusion was neither perverse nor inadequately reasoned. The facts established no general benchmark for other cases: paras [48]–[51].

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed by [2015] EWCA Civ 1197. The Upper Tribunal’s revocation of the deportation order was upheld.

2. Upper Tribunal (Immigration and Asylum Chamber): After the First-tier Tribunal decision was set aside by consent, the Upper Tribunal remade the decision, allowed the respondent’s appeal and revoked the deportation order.

3. First-tier Tribunal: The respondent’s appeal against the refusal to revoke the deportation order was dismissed. That decision was later set aside by consent at an error-of-law hearing.