Paulo Antonio v Secretary of State for the Home Department

Under the pre-2014 statutory appeal scheme, an appeal against a decision that automatic deportation applies is not an appeal against the proposed destination or removal directions. Section 84(1)(g) addresses whether removal in consequence of the decision would breach Convention rights; it does not make statutory destination requirements part of the immigration decision.

In a limbo case, the court must apply the three-stage approach in [2019] 4 WLR 132. The absence of an immediate prospect of removal does not alone extinguish the public interest in deportation or make a deportation order improper. The individual’s conduct contributing to the difficulty of removal is relevant.

The appellant had been convicted of serious robbery offences and the Secretary of State decided in 2013 that he was a foreign criminal to whom section 32(5) of the UK Borders Act 2007 applied. A deportation order was made. The appellant maintained that he was Portuguese, but Portugal did not accept him as a national, and the Secretary of State later considered that he might be Jamaican. She accepted that he was neither Portuguese nor Jamaican and that removal was unlikely.

The First-tier Tribunal dismissed the appellant’s appeal. Following a de novo rehearing, the Upper Tribunal also dismissed it. The issues before the Court of Appeal were whether the statutory appeal could address the legality of removal to the proposed destination, whether the continuing deportation order was unlawful or disproportionate in a limbo situation, and whether it served an improper purpose.

Appeal dismissed. The Court of Appeal unanimously upheld the Upper Tribunal’s decision.

1. The appeal concerned only the Secretary of State’s decision that section 32(5) of the UK Borders Act 2007 applied. Under sections 82(3A) and 84 of the Nationality, Immigration and Asylum Act 2002, the proposed destination was not an integral part of that immigration decision. Section 84(1)(g) permitted consideration of whether removal in consequence would breach Convention rights, but could not expand or redefine the statutory decision under appeal.
2. The reasoning in MS (Palestinian Territories) v Secretary of State for the Home Department [2010] 1 WLR 1639 applied. Requirements governing the country to which removal directions might ultimately be given did not create a separate ground of appeal that the immigration decision was not in accordance with the law.
3. The Upper Tribunal correctly applied the guidance in RA (Iraq) v Secretary of State for the Home Department [2019] 4 WLR 132. A limbo argument requires proof that immediate or foreseeable deportation is not possible, that no further steps can presently facilitate it, and that no change is anticipated so that removal prospects are remote. The court must then assess the individual circumstances, including immigration history, family and private life, seriousness of offending, elapsed time, removal prospects, and any failure to co-operate.
4. The public interest in deportation is not extinguished merely because removal is currently difficult or unlikely. The relevant circumstances included the seriousness of the appellant’s offences, the absence of significant family or private life, the remoteness rather than impossibility of removal, and his failure to provide reliable information. The balancing exercise therefore disclosed no disproportionate interference with Convention rights.
5. The reliance on R (Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875 was misplaced. A concession concerning immigration bail, made on a ground for which permission had not been granted, was irrelevant to the statutory appeal against the automatic deportation decision and concerned a materially different factual situation.
6. The deportation order was not being used for an improper purpose. Its purpose was to express and implement the public interest in removing foreign criminals; restrictions on the appellant’s conduct in the United Kingdom resulted from his lack of leave, not from an unlawful attempt to regulate him through the order.

The court noted obiter, adopting an observation of Baroness Hale in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207, that a future case might arise where the prospect of safe return became so remote that refusing status would be irrational. That exceptional situation did not arise here.

1. Court of Appeal (Civil Division): [2022] EWCA Civ 809. Appeal dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Rintoul, decision promulgated on 20 May 2021. The First-tier Tribunal’s decision was set aside for unrelated reasons and the appeal was reheard de novo; the appeal was dismissed.
3. First-tier Tribunal: Judge McCarthy dismissed the appeal against the Secretary of State’s decision that section 32(5) of the UK Borders Act 2007 applied.
4. Earlier judicial review proceedings: the appellant initially succeeded in having a deportation order quashed, but the Secretary of State’s appeal succeeded in R (Antonio) v Secretary of State for the Home Department [2017] 1 WLR 3431.