Decker, R (on the application of) v Secretary of State for the Home Department & Anor

A deportation order made under the Immigration Act 1971 is not invalid merely because its subject is outside the United Kingdom when it is signed. The Act makes presence no precondition of validity; the removal limb may be inoperative without invalidating the order’s other effects. Administrative policy cannot alter that statutory construction. A refusal of an EEA residence card to an extended family member on public policy or public security grounds must comply with Regulation 21. The decision-maker must address whether the person’s conduct presents a genuine, present and sufficiently serious threat affecting a fundamental interest of society. Failure to apply that test is an error of law.

The appellant, a Sierra Leone national, had been convicted of obtaining leave by deception. While an appeal against a proposed deportation was pending, he left the United Kingdom for Ireland without notifying the Secretary of State. A deportation order was then signed in his absence. After his return, his application for an EEA residence card as an extended family member was refused.

The First-tier Tribunal dismissed his appeal and the Upper Tribunal refused permission to appeal. The Administrative Court dismissed three consolidated judicial review claims in a judgment reported at [2014] EWHC 354 (Admin). The Court of Appeal considered whether the deportation order was invalid because the appellant was abroad when signed, and whether the refusal of the residence card was made using the correct public policy and public security test.

Hamblen LJ gave the judgment, with which Lewison and Jackson LJJ agreed.

1. Deportation order. The appeal was dismissed on the issue of validity. Section 3 of the Immigration Act 1971 sets out liability to deportation. Section 5(1) describes the effects of a deportation order: removal, prohibition on entry and invalidation of existing leave. The Act contains no express or implied requirement that the subject be present in the United Kingdom when the order is made. The fact that the removal limb may be otiose does not invalidate the order.
2. Section 5(6) concerns a different situation: a person liable to deportation leaves the United Kingdom to live permanently abroad before an order is made. It does not assist a person who leaves clandestinely to avoid deportation proceedings. Administrative instructions cannot alter the proper construction of primary legislation or invalidate an order authorised by it. R v SSHD ex p William Duah Brew was distinguishable because it concerned voluntary departure and did not assist on these facts.
3. EEA residence card. The principles in Article 27 of the Citizens’ Directive were capable of applying to extended family members. In any event, Regulations 17(5), 20(1) and 21 of the Immigration (EEA) Regulations 2006 required a refusal based on public policy or public security to comply with the Regulation 21 principles.
4. The Secretary of State and the First-tier Tribunal failed to ask and answer whether the appellant’s personal conduct represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. That failure to apply the correct test was an error of law. The omission could not be treated as immaterial because the appellant had offended when young, had committed no further offence, and was accepted to pose a low risk of reoffending. There was considerable room for argument about whether the statutory threshold was met.
5. The appeal was therefore allowed on the residence-card issue and the matter was remitted to the Upper Tribunal for reconsideration.

• Court of Appeal (Civil Division): dismissed the challenge to the validity of the deportation order, allowed the appeal concerning the EEA residence card, and remitted that issue to the Upper Tribunal.
• Administrative Court: dismissed the three consolidated judicial review claims in the decision reported at [2014] EWHC 354 (Admin).
• First-tier Tribunal and Upper Tribunal: the First-tier Tribunal dismissed the appeal against refusal of the residence card; the Upper Tribunal refused permission to appeal.