Cyrus, R (on the application of) v Secretary of State for the Home Department

For interim relief in public-law proceedings, a legal error in certifying a human-rights claim is not immaterial merely because the same decision might have been reached under the correct test. The decision-maker must establish that the hypothetical lawful decision would itself have been lawful. Where certification is a statutory precondition to making a deportation order, an unresolved error in certification may undermine the order. The court applies a modified American Cyanamid approach, with particular weight given to the claimant’s practical prejudice and the integrity of public administration. Restoration of immigration leave may be ordered pending an in-country appeal, while preserving the tribunal’s freedom to determine the substantive human-rights claim.

The claimant, who had lived in the United Kingdom all his life and had been convicted of manslaughter committed when he was aged 12, challenged decisions to deport him and to certify his human-rights claim for an out-of-country appeal. The Secretary of State accepted that the certification decision under Nationality and Immigration, Asylum Act 2002, section 94B, had focused erroneously on serious irreversible harm rather than the wider statutory question.

By the interim-relief hearing, the Secretary of State had reconsidered the matter, permitted an in-country appeal from a fresh decision, and released the claimant. The issue was whether interim restoration of indefinite leave to remain was appropriate, including whether the certification error was immaterial and whether an unlawful certification invalidated the deportation order.

1. The application for interim relief succeeded. The court ordered restoration of the claimant’s indefinite leave to remain pending resolution of his forthcoming appeal. The order was interim and was not intended to affect the outcome of that appeal.

2. The guidance considered in R (Kiarie) v Secretary of State for the Home Department [2015] EWCA Civ 1020 was incomplete and misleading because section 94B(3) gives an example of a ground for certification, whereas section 94B(2) states the wider statutory limit. The Secretary of State accepted that the decision-maker had focused erroneously on serious irreversible harm.

3. The possibility that the same decision might have been reached under the correct approach did not establish immateriality. The Secretary of State had to show that the hypothetical lawful certification decision would itself have been lawful. On the material before the court, that had not been established. The claimant’s lifelong residence in the United Kingdom, absence of evidence of family or other contact in Jamaica, and the fact that the principal criminal conduct occurred at age 12 were relevant matters in assessing proportionality during the likely appeal period.

4. Certification was accepted to be a precondition to the deportation order. The court therefore regarded the argument that the deportation order remained lawful despite the defective certification as difficult where the legal error could not be shown to be immaterial.

5. The parties agreed that a more stringent approach applies to interim relief where the public interest is engaged, subject to the strong public-law presumption that public decisions should be respected unless formally set aside. The court assessed the balance of convenience, including the claimant’s inability to work, access ordinary support, secure accommodation, pursue education, or travel for required reporting.

6. The court accepted the proposition from R (Fitzroy George) v Secretary of State for the Home Department [2014] UKSC 28 that revocation of a deportation order does not automatically revive previously held indefinite leave to remain. That case did not determine the present interim application because the claimant’s circumstances were materially different.