JG (Jamaica) v Secretary of State for the Home Department

A deportation order which itself records that it is made under section 32(5) of the UK Borders Act 2007 can itself constitute the relevant immigration decision for section 82 of the Nationality, Immigration and Asylum Act 2002.

The Immigration (Notices) Regulations 2003 require written notice and reasons, but do not require the reasons to be prepared before, or at the same time as, the decision. Reasons may be prepared later and served with the document recording the decision, provided that they are genuine and accurate and enable an effective challenge. Under the Carltona principle, the Secretary of State acts through departmental officials. A senior official may make the decision after briefing, while a knowledgeable caseworker subsequently records the reasons.

The appellant, a Jamaican national serving a five-year sentence for drugs offences, was the subject of a deportation order made on 17 June 2013. A senior UK Borders Agency official signed the order on behalf of the Secretary of State. A different official sent the order, a decision notice and appeal papers on 24 June 2013.

The First-tier Tribunal allowed the appellant's appeal because it considered that the deportation decision was not in accordance with the law. It did not determine his Article 8 claim. The Upper Tribunal allowed the Secretary of State's appeal and remitted the Article 8 issue to the First-tier Tribunal. The appellant appealed to the Court of Appeal. The central issue was whether the later decision notice showed that the deportation decision had been made unlawfully after the order was signed.

1. Appeal dismissed unanimously. Sales LJ, with whom Sullivan and Jackson LJJ agreed, held that the Upper Tribunal had been correct. The deportation order was lawfully made and the appellant's first ground of appeal failed.

2. The statutory expression “immigration decision” in section 82 of the Nationality, Immigration and Asylum Act 2002 is a compendious term. It does not impose a sharp legal distinction between a decision to make a deportation order and the order itself. The order signed on 17 June 2013 recorded the actual decision and stated that it was made under section 32(5) of the UK Borders Act 2007. It was therefore the relevant immigration decision.

3. Regulation 4 of the Immigration (Notices) Regulations 2003 required written notice of that decision. Regulation 5 required reasons, but neither its language nor its purpose required reasons to precede or accompany the making of the decision itself. A later-prepared statement of reasons was sufficient because it was served with the order and enabled the appellant to assess and challenge the decision. Such reasons must, however, be genuine and accurate. There was no basis for finding that the decision notice failed that requirement.

4. The proper inference was that the senior official had made the decision after being briefed, then assigned a caseworker to prepare the formal decision notice. That was a lawful and ordinary departmental process. Applying the Carltona principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, the Secretary of State was the single decision-maker acting through both officials. The Upper Tribunal's remittal of the unresolved Article 8 issue to the First-tier Tribunal therefore remained in place.

• Court of Appeal (Civil Division): dismissed the appellant's appeal and upheld the Upper Tribunal's conclusion that the deportation decision was lawful: [2015] EWCA Civ 410.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State's appeal from the First-tier Tribunal, held that the First-tier Tribunal had erred on the lawfulness ground, and remitted the Article 8 issue for re-determination.

• First-tier Tribunal: allowed the appellant's appeal on the ground that the deportation decision was not in accordance with the law, and did not determine the Article 8 ground.