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

An earlier immigration adjudication is final and binding unless fresh evidence or a material change of circumstances provides legal justification for departing from it. A material change may be a change in law. The introduction of Part 5A of the Nationality, Immigration and Asylum Act 2002 therefore permitted a fresh deportation decision based on the same conviction and materially unchanged facts.

The new regime governed the future consequences of the conviction. It did not operate retrospectively or confer a vested right to remain following the earlier successful appeal. A person also abuses the court’s process by exhausting a statutory appeal and then using judicial review to advance legal arguments which could and should have been raised in that appeal.

The appellant successfully challenged an earlier deportation decision in 2012, when the Upper Tribunal found that removal would disproportionately interfere with his rights under article 8 of the Convention. After Part 5A of the Nationality, Immigration and Asylum Act 2002 came into force, the Secretary of State made a further deportation decision based on the same conviction. The First-tier Tribunal and Upper Tribunal dismissed his ensuing appeal.

He then sought judicial review of a fresh deportation order, detention and the refusal to treat further submissions as a fresh claim. Choudhury J dismissed the claim in [2018] EWHC 2166 (Admin). The central questions were whether the earlier adjudication precluded a new deportation decision absent materially changed facts, whether the statutory change could itself justify reconsideration, and whether the judicial review was an impermissible collateral attack on the later tribunal decision.

1. The appeal was dismissed unanimously. Andrews LJ, with whom Newey and King LJJ agreed, held that MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252 was binding. It established on materially indistinguishable facts that the changes introduced in 2014 entitled the Secretary of State to review the position and make a fresh deportation decision under Part 5A of the Nationality, Immigration and Asylum Act 2002.

2. MA (Pakistan) had not been decided per incuriam. That doctrine requires ignorance of a crucial statutory provision or binding decision which, if considered, would have compelled a different result. Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848 concerned a material factual change in an article 3 case and did not decide whether a change in law could justify reconsideration.

3. An earlier immigration adjudication is treated as final and binding unless there is legal justification for departure. Fresh evidence satisfying the Ladd v Marshall test or a material change of circumstances may supply that justification. Parties cannot instead rely on points which could and should have been raised in the original proceedings. A change in legislation or policy can remove a legal obstacle to deportation.

4. The 2014 provisions did not operate retrospectively. The earlier tribunal decided whether removal was disproportionate under the law and circumstances then prevailing. It neither conferred immigration status nor created a vested right never to be removed. The later tribunals had to apply the current law, while treating the earlier findings as their starting point.

5. Under section 117C(6), the public interest requires the deportation of a foreign criminal sentenced to at least four years’ imprisonment unless very compelling circumstances exist over and above the statutory exceptions. Parliament was entitled to impose that higher threshold even though its application could produce harsh consequences.

6. The judicial review was also an abusive collateral attack on the 2017 tribunal decision. The Henderson v Henderson rule prevented the appellant from exhausting his appeal rights and then advancing legal arguments which could and should have been raised during that appeal. Engagement of article 8 did not exempt the claim from ordinary procedural rules. The Secretary of State had also lawfully concluded that the further submissions did not satisfy paragraph 353 of the Immigration Rules.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2020] EWCA Civ 1425. The court upheld the dismissal of the judicial review claim.
2. High Court, Administrative Court: Choudhury J dismissed the claim for judicial review in [2018] EWHC 2166 (Admin).
3. Upper Tribunal: In 2017 the Upper Tribunal dismissed the appellant’s appeal against the First-tier Tribunal’s rejection of his article 8 claim. Permission to appeal was refused and the statutory appeal rights became exhausted.
4. First-tier Tribunal: The tribunal dismissed the appeal against the refusal of the appellant’s human rights claim, applying the statutory regime introduced in 2014.