In Geddes v Secretary of State for the Home Department [2024] EWHC 66 (Admin) the High Court has said that a pending application to the Supreme Court does not act as an barrier to deportation on the basis that the appeal has not yet been finally determined.

Background

In 2007, at the age of 17, the applicant was convicted of wounding with intent to inflict grievous bodily harm and sentenced to six years in a young offenders institution. In 2014 the Home Secretary made a decision that his deportation was conducive to the public good under section 3(5)(a) of the Immigration Act 1971. He appealed against the decision under section 82 (in its previous form) of the Nationality, Immigration and Asylum Act 2002.

The First-tier Tribunal dismissed his appeal on 19 November 2014 and the Upper Tribunal did the same on 26 March 2015. The Court of Appeal dismissed the appeal on 20 October 2016. After an extension of time was granted to allow for legal aid to be granted, a notice of appeal was lodged with the Supreme Court.

A deportation order was made on 19 September 2017 and the claimant was detained on 30 October 2017 with a view to his being deported. On 13 November 2017 interim relief was granted, preventing the claimant’s removal from the UK until his application for permission to appeal had been determined by the Supreme Court.

The Supreme Court seemingly then adjourned a decision on permission pending the outcome of KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53. That case was decided in 2018 but the Supreme Court did not refuse permission in Mr Geddes’ case until 15 February 2022.

The judicial review

The judicial review was a challenge to the deportation order, the claimant arguing that it was unlawful because of his pending application for permission to appeal to the Supreme Court. An unlawful detention claim was also made, this depended on the first point succeeding.

The claim centred on the meaning of when an appeal was deemed “finally determined” as set out in section 104 of the Nationality, Immigration and Asylum Act 2002. Prior to April 2005, the position had been that an appeal was not deemed finally determined until any kind of further appeal was ongoing or could be brought. The April 2005 changes restricted this to six specific situations, which were set out at section 104(2).

In February 2010 this was changed again and restricted to three circumstances where an appeal was not finally determined, namely where:

(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,

(b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or

(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.

The claimant argued that the plain and ordinary meaning of the words “finally determined” should include appeals to the Supreme Court. The court dismissed this argument, stating that “The fact that the legislature has specified sections 11 and 13 of the 2007 Act means it must have intended to exclude other appellate situations” [14].

The court also referred to the Upper Tribunal’s decision in the case of Niaz (NIAA 2002 s. 104: pending appeal) [2019] UKUT 00399 (IAC) where it was said that “there is a strong policy reason why Parliament intended section 104(2) to produce an exhaustive list of the situations in which an appeal is not finally determined”.

Conclusion

The court set out the two options for a person in this situation, the first was that the Home Secretary may of his own volition decide not to deport a person where there is a pending application to the Supreme Court. In my experience, this would be a dangerous thing to rely on. Instead, anyone in this position would be better to pursue the second option which is to apply for a stay on deportation pending the outcome of the appeal (there is of course no guarantee that such a request would be granted).