Last year, Nick wrote up the case of MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252, summarising it as follows:

If a foreign criminal wins their deportation appeal, can the Home Office try and deport them again, even where there has been no further offending?

In MA (Pakistan)… the Court of Appeal considered this question and held that the answer is yes. 

This year, the Court of Appeal has considered the same question again and held that the answer is still yes. The case is R (Abidoye) v Secretary of State for the Home Department (Rev 1) [2020] EWCA Civ 1425.

This was a judicial review rather than a straight appeal, and the judgment also contains some harsh words about trying to challenge deportation in this way.

The (MA) Pakistan precedent

The facts of Abidoye and MA (Pakistan) were “indistinguishable in all material respects”, according to Lady Justice Andrews. The nature of the criminal offending was in fact wildly different, Mr MA having received a four-year sentence for manslaughter and Mr Abidoye five years for his part in a sophisticated forgery operation. But the two men had in common the fact that they had both successfully appealed against deportation in 2012 and then faced renewed deportation proceedings a few years later, with the Home Office now armed with tougher legislation.

To win, Mr Abidoye needed to find a way around the MA (Pakistan) precedent. He argued that it had been decided “per incuriam”, without taking into account a conflicting case — Harverye [2018] EWCA Civ 2848 — and so should not be followed. 

Andrews LJ rejected this pitch, saying that the overlooked case was not relevant:

The question whether a change in the law, or the specific changes brought about by the 2014 Act, could constitute a material change in circumstances, where there had been no material change to the underlying facts, did not arise for consideration in Harverye.

She added:

My conclusion that MA (Pakistan) was not decided per incuriam is fortified by the fact that after Singh LJ granted permission to appeal in the present case, the Supreme Court refused permission to appeal in that case, on an application relying on essentially the same grounds as are raised in this appeal.

With MA (Pakistan) binding on the court, the rest of Mr Abidoye’s arguments were academic, and Andrews LJ said that she would have reached the same conclusion in any event. She took the opportunity to reiterate that “the principles of res judicata are not applicable in immigration appeals, or at least that they do not apply with their full rigour”. In other words, the Home Office can sometimes reopen a case even if the person has won their appeal.

… the earlier decision will be treated as final and binding on the parties to it unless there is some legal justification for departing from it.

In this case, the changes to deportation law brought about by section 19 of the Immigration Act 2014 created that legal justification. To “move the goalposts” after the fact may be “harsh”, but it was not unlawful.

“This type of abuse will not be tolerated”

Andrews LJ concluded with a warning about using judicial review proceedings like this to mount a “collateral attack” on the findings of immigration judges. Mr Abidoye had already had his chance to challenge the fresh deportation order against him through a fresh round of appeals at the First-Tier and Upper Tribunals. Those appeals were refused. The judge felt that the arguments Mr Abidoye was deploying “could and should have raised” at the tribunal.

Paragraphs 57 and 61 contain a stark warning for others tempted by similar litigation:

Although the doctrine of res judicata may not apply with its full rigour in immigration proceedings, the rule in Henderson v Henderson (1843) 3 Hare 100 does preclude an applicant from waiting until his appeal rights are exhausted, and then raising different legal arguments in a claim for judicial review of the same decision that was unsuccessfully appealed, or of a further decision taken to implement or enforce it, in an attempt to delay or prevent his lawful removal from the jurisdiction. Irrespective of the merits of the new arguments, that is an abuse of the process and the message needs to go out that this type of abuse will not be tolerated. The appellant is not entitled to have endless bites of the same cherry.

…

It would undermine the whole of the Tribunal system if litigants relying on Article 8 or other Convention rights were allowed, as a matter of course, to exhaust their rights of appeal and then bring a fresh indirect challenge by way of judicial review raising points that could and should have been argued before the Tribunal.

Since Andrews LJ is the judge in charge of Hamid disciplinary hearings (or was before her very recent promotion to the Court of Appeal, at least) her comments about what is an “abuse of process” are worth paying attention to.