KAMAL HUSSAIN (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The Devaseelan guidance governs a tribunal judge determining a later appeal. It requires the earlier determination to be the starting point, but does not bind the later judge. It does not govern the Secretary of State.

The Secretary of State must instead act on the final tribunal determination. Where successive tribunal decisions reach different conclusions, there is no basis for treating the older decision rather than the later one as the operative starting point. A party who considers the later determination unlawful should pursue an appeal against it. Judicial review, being a remedy of last resort, cannot ordinarily be used to bypass that unappealed remedy.

The applicant, a Bangladeshi national with indefinite leave to remain, challenged a replacement deportation order made because the Secretary of State considered his deportation conducive to the public good.

A First-tier Tribunal had allowed an earlier deportation appeal in 2012 under paragraph 399A of the Immigration Rules. Following further offending, Judge Ford dismissed a later appeal in 2014. Judge Ford found that the applicant retained ties with Bangladesh and did not satisfy paragraph 399A. The applicant did not appeal that determination.

In judicial review proceedings, he contended that the Secretary of State was required by Devaseelan v SSHD [2002] UKIAT 00282 to rely on the earlier favourable determination rather than Judge Ford’s later adverse decision. The central issue was whether the Devaseelan guidance imposed that obligation on the Secretary of State.

1. The application was dismissed. The replacement deportation order was not rendered unlawful by the earlier 2012 tribunal determination.

2. Devaseelan v SSHD [2002] UKIAT 00282 provides guidance to judges deciding a later appeal. An earlier determination is the starting point, but it is not binding. The guidance is directed to a second judicial decision-maker and does not prescribe how the Secretary of State must act.

3. The Secretary of State is essentially bound to act on a final tribunal decision allowing or dismissing an appeal. That obligation derives from the line of authority beginning with R v SSHD ex parte Mersin [2000] EWHC 348 (Admin), rather than from Devaseelan. In this case, the relevant final decision was Judge Ford’s 2014 dismissal of the later appeal.

4. Where two judicial determinations have reached opposing conclusions, Devaseelan supplies no reason for a third decision-maker to prefer the older determination to the newer one. The applicant’s proper course, if he alleged legal error in Judge Ford’s decision, was to seek permission to appeal it. He did not do so. Judicial review is a remedy of last resort and could not be used to obtain the practical disregard of that unappealed decision.

5. In any event, an appeal against Judge Ford’s determination on Devaseelan grounds would have been unlikely to succeed. Judge Ford was entitled to reassess the applicant’s credibility in light of findings about his family relationship. She could also regard evidence of earlier visits to Bangladesh as additional material which the 2012 tribunal did not appear to have considered. Her determination therefore stood, and nothing identified prevented the Secretary of State from relying on it in proceeding to deportation.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the replacement deportation order dismissed.

• First-tier Tribunal: Judge Ford dismissed the applicant’s later appeal in a determination sent on 16 April 2014. No appeal was pursued.

• First-tier Tribunal: An earlier panel allowed the applicant’s deportation appeal in 2012, finding that paragraph 399A of the Immigration Rules applied.