Rupert Junior Geddes v Secretary of State for the Home Department

Section 104 of the Nationality, Immigration and Asylum Act 2002 contains an exhaustive statutory scheme defining when an appeal is not finally determined. Where section 104(2) refers specifically to appeals under sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, it excludes onward appeals to the Supreme Court. A pending application for permission to appeal to the Supreme Court therefore does not itself prevent removal under section 78 or invalidate a deportation order. Any apparent anomaly does not justify departing from the statutory language. The person concerned may seek a stay on removal, and the Secretary of State may voluntarily defer removal.

The claimant challenged a deportation order made on 19 September 2017 and consequential detention between 30 October and 15 November 2017. His statutory appeal had been dismissed by the First-tier Tribunal, Upper Tribunal and Court of Appeal. He had filed an application for permission to appeal to the Supreme Court, which remained pending when the deportation order was made.

The judicial review was confined to the construction of section 104 of the Nationality, Immigration and Asylum Act 2002: whether the pending Supreme Court application meant that the appeal was not finally determined, so that removal was prohibited and detention lacked lawful authority.

1. Claim dismissed. The deportation order was validly made and there was power to detain the claimant in pursuance of it.
2. Section 104(2) of the Nationality, Immigration and Asylum Act 2002 specifies the circumstances in which an appeal is not finally determined. The reference to sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007 covers appeals to the Upper Tribunal and the relevant appellate court, but not appeals from those courts to the Supreme Court. The list is exhaustive.
3. The claimant’s proposed distinction between horizontal challenges and onward appeals could not overcome the statutory scheme. Both forms of challenge may affect finality, and the express specification of particular statutory routes indicates that other appellate situations were excluded.
4. The legislative history reinforced that conclusion. The 2005 amendment replaced the broad reference to any further appeal with a specific list, and the 2010 amendment preserved that structure. The absence of consequential amendment following the creation of leapfrog appeals under sections 14A to 14C of the 2007 Act was consistent with Parliament having retained the exclusion of Supreme Court challenges.
5. The construction was supported by the need for certainty concerning the legality of removal. Any practical anomaly was insufficient to alter the statutory meaning. The Secretary of State could voluntarily defer removal, and the person facing removal could apply for a stay.

First instance judicial review. The judgment records that the claimant’s earlier statutory appeal was dismissed by the First-tier Tribunal, Upper Tribunal and Court of Appeal, but the citations for those decisions are not stated except for [2016] EWCA Civ 1042, which is a decision in the same litigation.