Guled, R (On the Application Of) v The Secretary of State for the Home Department

A deportation order made in breach of public law may, in an appropriate case, be treated as void ab initio. The court must take a relative and pragmatic approach, considering whether only the parties are affected, whether innocent third parties relied on the order, and whether the Secretary of State admitted its unlawfulness. An order treated in that way does not invalidate existing limited leave to remain under the Immigration Act 1971. The rule that revocation does not revive prior leave applies where the deportation order was lawfully made. A pending application for indefinite leave must still be determined, but it does not create an automatic entitlement.

The claimant, a Somali national, entered the United Kingdom in 1995, was granted limited leave to remain, and was later convicted and recommended for deportation. An initial deportation order was revoked, followed by a second order directing removal to Somalia. The claimant’s appeal against the removal destination was never determined, and his 2002 application for indefinite leave to remain remained undecided for many years.

In 2014 the Secretary of State revoked the second deportation order as invalidly obtained and made a further order. In 2015 the claimant was granted humanitarian protection and five years’ limited leave, but not indefinite leave. The Upper Tribunal declared that the 2002 application remained outstanding but did not decide whether the second deportation order was void. The central issues were whether the order was unlawfully made, whether it invalidated the claimant’s existing leave, and what relief followed.

The appeal was allowed to the extent stated by Holroyde LJ. Lady Justice Nicola Davies and Lord Justice David Richards agreed.

1. By reason of the conviction, sentence and recommendation for deportation, the claimant was liable to deportation under section 3(6) of the Immigration Act 1971. The Secretary of State therefore had power under section 5(1) to make a deportation order. That did not, however, establish that the power had been lawfully exercised.
2. The challenge to the validity of the second deportation order was not an improper collateral attack. Its validity properly arose in the challenge to the later immigration decision. The claimant’s appeal against the order had never been determined, and the Secretary of State had later revoked it as invalidly obtained. Boddington v British Transport Police [1999] 2 AC 143 confirmed that public-law legality may be challenged by routes other than judicial review.
3. The Upper Tribunal was wrong to conclude that no public-law error had been shown. The file note established that a substantive summary had probably been submitted to the minister, but there was no evidence of its contents. The Secretary of State’s formal letter stating that the order had been invalidly obtained was important evidence and amounted, in the circumstances, to an admission of public-law error. The Secretary of State could not rely on a presumption of validity for an order revoked for that express reason.
4. The principle in Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 applied. However, nullity in this context was relative rather than absolute. In assessing the consequences of an unlawful order, the court had to focus on the unusual circumstances of the case. Here, only the parties were affected, no innocent third party had relied on the order to his detriment, the Secretary of State had admitted unlawfulness, and the principle itself was not challenged. The second order was therefore void ab initio and did not invalidate the claimant’s existing limited leave.
5. R (George) v Secretary of State for the Home Department [2014] UKSC 28 was distinguishable. It concerned a lawfully made deportation order later revoked because of subsequent Article 8 considerations. Its non-revival reasoning did not govern an order made in breach of public law.
6. The claimant had no automatic entitlement to indefinite leave. His 2002 application remained outstanding and had to be determined by the Secretary of State. The Upper Tribunal’s declaration was continued, with the additional declaration that the second deportation order had not invalidated the existing limited leave.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 92, the appeal was allowed to the extent of declaring that the second deportation order did not invalidate the claimant’s existing limited leave.
2. Upper Tribunal: Upper Tribunal Judge Rintoul held that the 2002 application for indefinite leave remained outstanding and declared that it had to be determined, but did not decide whether the deportation order was void ab initio.