Harverye v The Secretary of State for the Home Department

A successful appeal based on a statutory exception to deportation does not permit the Secretary of State to make a fresh deportation decision on unchanged circumstances. A fresh decision may be made without a new conviction where there has been a material change affecting the exception. Materiality is assessed by identifying the factual basis of the earlier decision and considering objectively whether it has fallen away. A change may consist of the expiry of transient conditions or a reversion to the norm. The Secretary of State should explain the alleged changes in the decision notice, although inadequate reasons do not themselves invalidate the decision. The appeal was dismissed because the election-related risks and financial circumstances underpinning the earlier Article 3 finding had materially changed.

The appellant, a Zimbabwean national and foreign criminal, was subject to an automatic deportation order following a sentence of five and a half years’ detention. His first appeal succeeded because the First-tier Tribunal and, on appeal, the Upper Tribunal found a real risk of treatment contrary to Article 3 arising from the political situation in Zimbabwe at the time of impending elections.

A second deportation decision was made in 2014. The First-tier Tribunal allowed the appellant’s appeal, finding no fresh conviction and no sufficient change in circumstances. The Upper Tribunal allowed the Secretary of State’s appeal, holding that the election period had passed and that the earlier Article 3 risk no longer arose. The central issue was whether a material change of circumstances made the second decision lawful and justified reconsideration of the statutory exception.

The appeal was dismissed. The Court of Appeal upheld the Upper Tribunal’s decision that the second deportation decision was lawful and that the evidence no longer established an Article 3 risk.

1. The appellant’s status as a foreign criminal and the public interest in deportation were not in issue. Under the UK Borders Act 2007, an exception may prevent removal without preventing the making of a deportation order. The application of an exception does not extinguish the public interest in deportation or make the earlier order invalid.
2. SSHD v R (Antonio) established that a fresh conviction is not required before a subsequent deportation decision where the earlier decision has been revoked. It also confirmed that, following revocation or a successful appeal, a fresh immigration decision is required so that the person has a further right of appeal. That principle did not authorise reconsideration on unchanged circumstances. Finality of judgments required a material change after a successful appeal.
3. The material-change question required attention to what was material to the earlier determination and an objective reading of that determination as a whole. The earlier Article 3 risk arose from the anticipated need to remain in high-density areas of Harare, exposure to Chipangano, the heightened tension surrounding elections and the appellant’s limited financial means. The elections had passed and the appellant was likely to have greater access to funds, making travel to Bulawayo possible. The factual basis of the earlier exception had therefore fallen away. A reversion to the normal country position, rather than a wholly new development, could constitute a material change.
4. The Secretary of State should state clearly in the decision notice what material changes are relied on. This is important because the reasons will feature in any later appeal and the appellant must have a fair opportunity to obtain evidence and legal assistance. The omission did not, however, require the decision to be set aside in this appeal.
5. Hickinbottom LJ added that grounds of appeal must identify concisely the relevant error or injustice, while the arguments belong in a concise and properly focused skeleton argument. Non-compliance may attract procedural or costs sanctions. These were additional observations, agreed by Haddon-Cave LJ.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal: [2018] EWCA Civ 2848.
• Upper Tribunal (Immigration and Asylum Chamber) — on 26 August 2016, allowed the Secretary of State’s appeal from the First-tier Tribunal and upheld the deportation position.
• First-tier Tribunal — on 3 March 2015, allowed the appellant’s appeal against the second deportation decision. The earlier First-tier Tribunal decision of 22 February 2012, upheld by the Upper Tribunal on 17 July 2013, had allowed the first appeal on Article 3 grounds.