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Public law and Regulation

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19 MAR 2014

Decker v Secretary of State for the Home Department & Anor [2014] EWHC 354 (Admin)

A deportation issued whilst the Claimant had voluntarily left the UK was valid, as was his subsequent detention pending deportation.

19 February 2014

Administrative Court

Philippa Whipple QC

(1)        The Claimant was a national of Sierra Leone who was detained pending deportation. He sought to challenge his enforced removal pursuant to a deportation order that had been issued whilst he had been in Ireland.

(2)        The Claimant arrived in the UK on 19 May 2000, whereupon he was granted leave to enter as a visitor. His sister, who accompanied him, made an asylum application in which she named the Claimant as a dependant. That application was refused. In 2003, the Claimant applied for discretionary leave to remain and his application was supported by documents which later emerged to be forgeries. The Claimant was granted 6 months discretionary leave to remain in October 2003. In 2005, the Claimant was found guilty of obtaining leave by deception.

(3)        The Claimant failed to present himself in accordance with immigration reporting, and the deportation order was served in accordance with Regulation 7(2) of the Immigration (Notices) Regulations 2003. At this time, the Claimant was granted an EEA residence card in Ireland as an extended family member of his sister Jennifer in Ireland. The Defendant subsequently refused to grant the Claimant's application for an EEA residence card, a decision which the Claimant then appealed to the First Tier Tribunal (FTT), which refused his appeal.

(4)        The Claimant's grounds for challenge were:

(a)        The deportation order was invalid due to his being out of the country at the time of its issue;

(b)        The Claimant had not exhausted his appeal rights at the time of the decision to detain and remove;

(c)        The FTT Immigration Judge failed to consider Claimant's previous conviction in accordance with Article 27 of the 2004 Directive 2004/38/EC (‘the 2004 Directive');

(d)        The Immigration Judge had come to unfair and unsafe findings of fact;

(e)        The decision-maker had reached a flawed conclusion in refusing to revoke the deportation order;

(f)        There had been a flawed certification of the Claimant's human rights claim; and

(g)        There had been a failure to serve a lawful notice of decision with respect to the refusal to revoke the deportation order.

(5)        HELD: As to ground (a), the Court found that the law did not contain any express requirement that a person be in the UK at the time a deportation order is signed. To read in such a condition would undermine the policy to maintain effective immigration control. The Court concluded that the deportation order was not invalidated simply by the Claimant being outside the UK when it was signed.

(6)        In relation to ground (b), the Court referred to R (Lumba) v SSHD [2012] 1 AC 245, in which it was made clear that there was no rule that detention was unlawful only by virtue of a detainee pursuing a legal challenge. At the time the Claimant was detained, he had no outstanding applications for permission to appeal. Moreover, his subsequent detention did not become unlawful, because the Defendant was entitled to consider his legal proceedings devoid of merit and he posed a clear risk of absconding.  Ground (b) was thus held to fail.

(7)        Pursuant to the Claimant's ground (c), the Court found that the Claimant did have the benefit of rights under Article 3.2 of the 2004 Directive, but subject to requirements that the host state undertake an examination of his circumstances and justify any denial of residence or entry. The Court found that the factors considered by the FTT in considering the Claimant's personal circumstances were all relevant factors, including his previous conviction, and had not been considered as a result of any error in law.

(8)        The Court upheld the FTT's findings, discerning no unreliability. In particular, it upheld a finding that the Claimant had entered into a sham marriage, on the basis that he had not disputed or challenged the Defendant's findings that his ‘wife' was already married to someone else. Further, the FTT's finding that the Claimant had temporarily moved to Ireland to avoid deportation was beyond dispute and without merit. The Court thus held that the FTT had not been unfair or absent of fair procedure. Ground (d) thus failed.

(9)        As a result of finding the deportation order to be valid, the challenge to the decision to refuse to revoke the order was held to fall with this.

(10)     The Court found that the Defendant had been entitled to consider that there was no basis for concluding that the Claimant's human rights claim would not succeed, and there was nothing exceptional about his case. As a non-EEA national, the Claimant did not fall within the category of persons who had an in-country right of appeal; and, in any event, his right of appeal to the FTT had already been resolved against him. His human rights claim was lawfully certified, and he therefore had no right to an in-country right of appeal.

(11)     The Claimant's challenges thus fell to be dismissed.

Claims dismissed.

Key paragraphs

[42] - No express requirement.

[49] - Deportation order valid.

[60-62] - Detention not unlawful.

[77] - Justify denial residence.

[92] - Relevant factors.

[95] - Ground c.

[113] - Sham marriage.

[116] - Ireland move.

[118-121] - Ground e.

[129] - No basis human rights claim.

[133-136] - No in-country right of appeal.

[137] - Conclusion.

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