MM, R (on the application of) v Secretary of State for the Home Department (effect of withdrawal section 94B)

In automatic deportation cases, withdrawal of a refusal of a human rights claim or withdrawal of a section 94B certificate does not retrospectively affect an existing deportation order. The order remains effective unless revoked, although the Secretary of State has power to revoke it. Where certification removes the possibility of an in-country appeal, the statutory protection preventing invalidation of leave does not apply, and the deportation order invalidates existing leave. Withdrawal does not revive that leave. A successful appeal against refusal of a human rights claim concerns removal or the requirement to leave. It does not determine the validity or continuing effect of the separate deportation order, or require previously held indefinite leave to remain to be restored.

The applicant had indefinite leave to remain before the Secretary of State made an automatic deportation order under section 32(5) of the UK Borders Act 2007, refused his human rights claim and certified it under section 94B of the Nationality, Immigration and Asylum Act 2002.

Following R (Kiarie & Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, the refusal and certificate were withdrawn and a new, non-certified refusal was issued. The applicant later successfully appealed on human rights grounds. The deportation order was subsequently revoked, but the Secretary of State granted limited rather than indefinite leave.

By judicial review, the applicant sought a declaration that his indefinite leave had survived or revived. The central issues were the legal effect of withdrawing the refusal and certificate, and the effect of allowing the human rights appeal.

1. The application for judicial review was refused. The applicant’s amended grounds also amounted to impermissible collateral challenges to the lawfulness of earlier decisions and were brought several years out of time. That was sufficient to defeat the first two grounds.

2. Substantively, the automatic deportation regime separates the deportation order from the later human rights decision. Under section 33(7) of the UK Borders Act 2007, the existence of an exception, including an exception based on Convention rights, does not prevent the making of a deportation order. The existence of an unresolved human rights claim is therefore not a condition precedent to making the order.

3. Under sections 78 and 79 of the Nationality, Immigration and Asylum Act 2002, a section 32(5) deportation order does not invalidate leave while an in-country appeal is pending. That protection did not apply here because the section 94B certificate prevented an in-country appeal. The deportation order consequently invalidated the applicant’s indefinite leave.

4. Withdrawal of the human rights refusal or the section 94B certificate did not quash those decisions, render the deportation order void, or require its revocation. The order continued as a separate legal entity. The Secretary of State could revoke it and make a fresh order, but was not obliged to do so.

5. The principles in George v Secretary of State for the Home Department [2014] UKSC 28 applied. Revocation of a deportation order does not retrospectively undo the invalidation of leave or revive previous indefinite leave. Nor did the withdrawal of the certificate establish that it had been unlawful; its legality required a fact-sensitive assessment and had not been challenged in time.

6. The successful human rights appeal determined only that removal or the requirement to leave was unlawful on the circumstances at the time of the appeal. It did not review the legality of the deportation order, determine its effect on immigration status, or require restoration of indefinite leave.

The judgment itself does not describe an appeal from an earlier decision. It records that the judicial review claim was stayed pending Ijoyah v Secretary of State for the Home Department, which was decided by the Upper Tribunal on 23 December 2024 and was followed by an order of the Court of Appeal dated 10 June 2025 refusing permission to appeal.