Withdrawn certification decision does not reinstate leave in deportation cases

If the Home Office seeks to deport a foreign criminal and certifies their human rights claim, but that foreign criminal successfully challenges the decision to deport (and to certify), what is the immigration status of the foreign criminal afterwards? The Upper Tribunal gives guidance on this question in MM, R (On the Application Of) v SSHD (effect of withdrawal section 94B) [2025] UKUT 385 (IAC).

Revival of leave?

The starting point is that the making of a deportation order cancels any permission, including settlement or indefinite leave to remain, that a person may have under s5(1) of the Immigration Act 1971.

The position since the Supreme Court’s decision in R (George) v SSHD [2014] UKSC 28 is that a successful appeal against a deportation order does not reinstate or ‘revive’ a foreign criminal’s previously held indefinite leave. Per current policy and practice, if you win your appeal on human rights grounds but have had your indefinite leave to remain cancelled, you are generally given renewable 30 month periods of permission to stay in the UK.

BUT: a deportation order made under s32(5) of the UK Borders Act 2007 does not invalidate leave to enter or remain as long as s79(4) and s78 of the Nationality, Immigration and Asylum Act 2002 applies, i.e. while there is a pending appeal under section 82(1) of the 2002 Act, which has been brought when the appellant is in the UK.

Where a claim is certified under section 94B of the Nationality, Immigration and Asylum Act 2002 there is no in country right of appeal and so s79(4) and s78 do not apply.

The upshot of this is that some people who the Home Office attempts to deport keep their indefinite leave to remain after winning their appeals, others do not. It depends on the process that the Home Office followed when it made the decision to deport.

In the case of MM, the applicant attempted to challenge whether or not the Home Office took the correct path in his case.

The path not taken

MM arrived in the UK in 1984, and was granted indefinite leave to remain in 2003. He was convicted of various criminal offences, and received a sentence of imprisonment for 27 months in 2015 for burglary. The Home Office made a Stage 2 decision to deport on 20 June 2016, certifying his human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002. A deportation order under s32(5) UK Borders Act 2007 was signed on the same day.

In August 2018, following the Supreme Court judgment in R (Kiarie & Byndloss) v SSHD [2017] UKSC 42 (which challenged the lawfulness of s94B certification and out of country appeals), the Home Office withdrew the 2016 human rights claim refusal and the s94B certification and made a new decision, still refusing the human rights claim, but with an in-country right of appeal. MM exercised his in-country right of appeal, and eventually won.

However, since MM’s human rights claim had been certified under s94B so that he did not have a right of appeal exercisable from inside the UK, the protection in section 79(4) did not apply and the Home Office could therefore make a deportation order under section 32(5) which in turn invalidated his indefinite leave to remain. The Home Office therefore granted him 30 months leave in January 2023.

In his judicial review challenge to this decision, MM’s legal team argued that the Home Office should not have followed the course that they did and that (para 58)

… having withdrawn the section 94B certificate and the decision in [MM’s] human rights claim, the[y] ought at that point to have revoked the deportation decision or, if not, ought to have reinstated his ILR pending the outcome of the reconsideration of his human rights claim and pending his appeal against the refusal of his claim, restoring him to the position he would have been in if the section 94B certificate had not been made. Alternatively, that the applicant’s ILR automatically revived once the section 94B certificate was withdrawn.

The legal bases for the challenge are dealt with in some detail in the judgment (paras 47-81), but were ultimately rejected by Judge Kebede of the Upper Tribunal.

Headnote

(1) Where, after making a deportation order under the automatic deportation order provisions in section 32(5) of the UK Borders Act 2007, the SSHD withdraws her refusal of a human rights claim (the Stage 2 deportation decision), the deportation order continues to have effect and there is no requirement on the SSHD to revoke that deportation order, although she has the power to do so.

(2) Where, after making a deportation order under the automatic deportation order provisions in section 32(5) of the UK Borders Act 2007, the SSHD withdraws the s94B certification of the human rights claim, the deportation order continues to have effect and there is no requirement on the SSHD to revoke that deportation order, although she has the power to do so. The SSHD may then make a new, non-certified, decision refusing the human rights claim without the deportation order being affected.

(3) In neither case does the withdrawal of the decision have the effect of reinstating or resurrecting any leave to enter or remain which was invalidated by the deportation order.

(4) A decision allowing an appellant’s appeal against the refusal of a human rights claim (a State 2 deportation decision) does not impose any legal obligation on the SSHD to regard the subsequently revoked deportation order as having no continuing effect on the appellant’s previously held leave to enter or remain.