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

A removal decision is not retrospectively unlawful merely because an earlier decision on which it relied is later found unlawful. A court may nevertheless order return after a lawful removal, although lawfulness is a highly material factor against relief.

Where removal was unlawful when it occurred, especially because it deprived the person of a statutory in-country appeal, that unlawfulness is the starting point for the discretionary remedy and will ordinarily carry substantial weight in favour of return. In exercising that discretion, the tribunal must consider all relevant circumstances, including the person’s conduct, the nature of the outstanding appeal, practical ability to pursue it abroad, and any travel restrictions. The framework for out-of-country appeals under section 94B does not govern relief for an unlawfully removed person.

The applicant, a Nigerian national, sought judicial review after his removal to Nigeria while an application for permission to appeal against the dismissal of his protection appeal was pending.

The First-tier Tribunal had sent the hearing notice to his former address and dismissed the appeal in his absence. Permission to appeal was later granted, the decision was set aside, and the appeal was remitted for a fresh hearing. Before that occurred, the respondent removed the applicant, notwithstanding information indicating that removal directions should be deferred.

The applicant sought a declaration that the removal was unlawful and an order requiring the respondent to arrange his return so that he could pursue his in-country protection appeal. The respondent relied on the applicant’s criminality, immigration history, the possibility of a video-link appeal from Nigeria, and the effects of the Covid-19 pandemic.

1. Application granted. The Tribunal declared that the applicant’s removal on 28 March 2018 was unlawful and ordered the respondent to use her best endeavours to arrange and facilitate his return to the United Kingdom for his appeal.

2. Under Nationality, Immigration and Asylum Act 2002, section 78 prohibited removal while the appeal was pending. By section 104, an appeal was not finally determined while an application for permission to appeal could be made or awaited determination. The applicant was served with the First-tier Tribunal’s decision on 20 March 2018 and applied for permission on 21 March, within the applicable period. His removal therefore breached section 78.

3. The Tribunal accepted that a removal based on an earlier decision is not rendered unlawful solely because that earlier decision is later found unlawful. But that principle did not assist the respondent: this removal was unlawful on the facts and law existing when it occurred. The respondent knew, or ought to have known, the material facts. The advice to defer removal was correct, and the later message from a Tribunal clerk gave no rational basis to proceed.

4. Unlawful removal was both the starting point for the discretionary remedy and a very weighty factor favouring return. The removal also deprived the applicant of a statutory in-country appeal concerning a protection claim which the respondent had accepted as a fresh claim with a realistic prospect of success. The defective First-tier Tribunal hearing and the respondent’s unverified assertion about service made those considerations exceptionally strong.

5. The applicant’s serious offending and problematic immigration history were relevant but carried limited weight in the circumstances. The Tribunal also gave limited weight to the proposed out-of-country video-link appeal. The section 94B and Article 8 procedural framework considered in Kiarie & Byndloss v Secretary of State for the Home Department [2017] UKSC 42 did not determine relief where unlawful removal had deprived a person of a statutory in-country protection appeal.

6. Covid-19 created practical uncertainty but did not justify postponing relief. The applicant’s case for return was very strong, and the respondent had not shown clearly that an out-of-country appeal was the better option having regard to timing, communication with lawyers, and the applicant’s circumstances in Nigeria. Liberty to apply was to be included in the order.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review allowed. The applicant’s removal was declared unlawful and the respondent was ordered to use her best endeavours to facilitate his return.

• Upper Tribunal (Immigration and Asylum Chamber): on 22 May 2018, allowed the applicant’s appeal from the First-tier Tribunal and remitted it for a fresh hearing.

• First-tier Tribunal: dismissed the applicant’s protection appeal in his absence on 19 December 2017. Permission to appeal was granted on 4 April 2018 after it emerged that notice of hearing had been sent to the former address.