Antonio v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal's decision that Section 32(5) of the UK Borders Act 2007 applied. The court applied the 'limbo' framework derived from RA (Iraq) and held that the UT had correctly found the appellant unreliable, that prospects of deportation were remote but not impossible, and that the public interest in deporting a foreign criminal remained. The court rejected arguments that Schedule 3 paragraph 1(1) of the Immigration Act 1971 or Schedule 2 equivalents made the proposed destination an integral part of the SSHD's decision, relying on MS (Palestinian Territories) to conclude the destination is not part of the decision under the appeal scheme in force at the material time. The court also rejected submissions that a deportation order which could not presently be enforced was therefore unlawful or being used for an improper regulatory purpose.

Background and parties: The appellant, who arrived in the United Kingdom as a minor and was convicted of robbery and sentenced to nine years' imprisonment, was the subject of a decision dated 9 July 2013 by the Secretary of State that Section 32(5) of the UK Borders Act 2007 applied. The SSHD made a deportation order and indicated proposed removal to Jamaica. The appellant appealed to the First-tier Tribunal and thereafter the Upper Tribunal (Judge Rintoul) following appellate and judicial review steps; the Court of Appeal heard the appellant's appeal from the UT.

Nature of the claim: The appeal concerned whether the UT erred in dismissing the appellant's statutory appeal under the Nationality, Immigration and Asylum Act 2002 against the decision that Section 32(5) applied. The appellant advanced three principal grounds: (1) that the decision was unlawful because removal 'in consequence of' the decision could not lawfully comply with paragraph 1(1) of Schedule 3 of the Immigration Act 1971 (relying on MS (Palestinian Territories)); (2) that a deportation order which could not be enforced was not 'in accordance with the law' and amounted to disproportionate interference with Convention rights; and (3) that the deportation order was being used for an improper purpose to regulate the appellant's presence in the UK.

Issues framed by the court:

• whether a proposed destination forms part of the immigration decision under Section 82/84 of the 2002 Act such that inability to secure admission to that destination vitiates the decision;
• whether the UT correctly applied the RA (Iraq) 'limbo' test when assessing whether keeping or making a deportation order was lawful or disproportionate;
• whether the deportation order was being used improperly to regulate the appellant while he remained in the United Kingdom.

Reasoning and outcome: The court held that MS (Palestinian Territories) establishes that the proposed destination is not an integral element of the immigration decision to which Section 82 applies and that Section 84(1)(g) permits inquiry into whether removal would breach Convention rights but does not convert destination into an intrinsic part of the decision. The court applied the RA (Iraq) three-step limbo test (incapability of deportation, no further steps available, prospects of removal remote) and found the UT correctly concluded the appellant met the first step and that, on the facts, he had not cooperated, had been dishonest about his background, and had no significant family ties in the UK; removal prospects were remote but not impossible. Balancing the public interest in deporting foreign criminals against Convention rights, the court found no disproportionate interference and rejected the claim that the deportation order was being used for an improper regulatory purpose. The appeal was dismissed.

The appeal is dismissed. The Court of Appeal held that the Upper Tribunal correctly applied the law: the proposed destination is not an integral part of the immigration decision under the statutory appeal scheme applicable in 2013, the RA (Iraq) 'limbo' framework was correctly applied and the judge properly balanced the public interest in deporting a foreign criminal against Convention rights after finding the appellant not candid and only remote prospects of removal. The deportation order was not unlawful or being used for an improper regulatory purpose.

Appeal to the Court of Appeal from the Upper Tribunal (Immigration and Asylum Chamber) (Judge Rintoul) promulgated 20 May 2021. The UT had reheard de novo an appeal from the First-tier Tribunal (Judge McCarthy) which had dismissed the appellant's appeal on 11 October 2018. Earlier, a judicial review at first instance quashed a deportation order but that quashing was overturned on SSHD appeal in R (Antonio) v SSHD [2017] 1 WLR 3431. This is the Court of Appeal's determination of the appeal from the UT ([2022] EWCA Civ 809).