Adrian Vassell, R (on the application of) v The Secretary of State for the Home Department

Certification under section 96 is unavailable where the new decision relies on a matter which could not have been raised in the earlier appeal. That question is distinct from the merits of the new matter.

A four-stage process governs certification. It includes the statutory conditions and a separate discretionary decision. When considering that discretion, the decision-maker must consider relevant material, but the decision should be read as a whole. An express repetition of every relevant matter at the final discretionary stage is unnecessary where the decision demonstrates that it was considered.

The applicant, a Jamaican national with indefinite leave to remain, challenged by judicial review the Secretary of State’s decision of 5 March 2014. The decision refused to revoke a deportation order and certified the applicant’s further representations under section 96 of the Nationality, Immigration and Asylum Act 2002.

His earlier appeal against deportation had been dismissed. His further representations relied principally on an independent social worker’s report concerning the effect of deportation on his British-citizen son. The Secretary of State considered paragraph 399A of the Immigration Rules, but certified the representations on the basis that they raised no matter which could not have been raised earlier.

The central issue was whether the applicant’s completion of the required period of continuous residence after the earlier appeal was a new matter preventing certification, and whether the child’s best interests had been left out of account in the discretionary decision.

1. The judicial review application succeeded. The decision to certify the application to revoke the deportation order under section 96 was unlawful and was quashed.

2. Applying the four-stage process stated in J v Secretary of State for the Home Department [2009] EWHC 705 (Admin), the Tribunal held that the applicant had, by the date of the new decision, lived continuously in the United Kingdom for more than 20 years after discounting his actual periods of imprisonment.

3. That position had not existed when his earlier deportation appeal was determined. It was therefore a new matter for section 96(1)(b). The Secretary of State could not certify the decision, regardless of her view of the merits of the applicant’s asserted lack of ties with Jamaica.

4. It was artificial to exclude the residence issue because it was also addressed in the pre-action correspondence. The decision itself had accepted 20 years’ continuous residence and had considered paragraph 399A(a), rejecting the claim only on the separate question of ties with Jamaica.

5. The separate challenge to the discretionary stage failed. Although the decision’s final certification paragraph did not expressly repeat the independent social worker’s report, the report had been addressed extensively elsewhere. Read as a whole, the decision did not show that the Secretary of State had ignored the child’s best interests or excluded them from her discretion.

• Upper Tribunal (Immigration and Asylum Chamber): This judicial review succeeded in relation to certification under section 96. The certification decision of 5 March 2014 was quashed.
• Earlier deportation appeal: The First-tier Tribunal dismissed the applicant’s appeal against the deportation order on 24 January 2013. The Upper Tribunal dismissed the subsequent appeal on 5 July 2013. Permission to appeal was later refused by the Upper Tribunal and the Court of Appeal.