The Supreme Court has allowed the Secretary of State’s appeal against the Court of Appeal judgment in the case of R (on the application of Fitzroy George) v Secretary of State for the Home Department [2014] UKSC 28. The Court of Appeal’s judgment was previously covered here on Free Movement.

To summarise the issues involved, I cannot do better than Lord Hughes, who gives the admirably clear single judgment:

If a criminal who previously had leave to remain in this country is liable to deportation because of his offences, but cannot actually be deported because to remove him would infringe his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, with the result that the deportation order is revoked, what is the status of his previous leave to remain? It is common ground that the making of a deportation order renders his leave to remain invalid. The question in this appeal is whether, if the deportation order is revoked, his leave revives or whether the Secretary of State is at that stage free to consider afresh what leave to grant to him.

As further background, Mr George had come to the UK aged 11 but had committed a number of criminal offences, the last of which being Class A drug intent to supply offences leading to a sentence of imprisonment of four years. The Home Office attempted to deport Mr George, but his appeal was allowed on Article 8 private and family life grounds.

The Court of Appeal held that the previous ILR held by Mr George before the deportation order was issued was revived. Despite the best efforts and “carefully crafted” submissions of Stephen Knafler QC for Mr George, the Supreme Court disagrees.

Held

Mr George’s first argument was that the effect of section 5 of the Immigration Act 1971 must be that the original status quo prior to the making of the deportation order must be restored if the deportation order is revoked. That section provides that:

5(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

(2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.

The argument was that the “invalidation” of leave provided for in section 5(1) would be “revoked” under section 5(2), therefore restoring the subject of the proceedings to the situation he was in before proceedings commenced. Lord Hughes holds that the words of the section of the Act are capable of bearing this meaning but goes on to reject the argument on the grounds that ancillary documents show that this is not the intent of the section. In particular, the Immigration Rules have always, since 1971, provided that revocation of a deportation order merely entitles the person to apply for new leave under the Immigration Rules.

This is the first time I’m aware the Immigration Rules have been used as an aide to construction of primary legislation. They are normally considered as some sort of sublegislative subspecies. It is also apparent from the two judgments that this argument was not ventilated by the Secretary of State before the Court of Appeal.

Ultimately, Lord Hughes concludes on this argument merely that it was not clear and then goes on to consider the other main submission, which was that other pieces of legislation also pointed in the direction of resurrection of previous leave, in particular section 76 of the Nationality, Immigration and Asylum Act 2002. This section provides the Secretary of State with a power to revoke a person’s ILR if the person is liable for deportation but cannot be deported for legal reasons. This power would be unnecessary if ILR was revoked and not reinstated, it was argued.

This argument too fails, for reasons that are usefully summarised by the accompanying press release:

However, this is incorrect. While the legal impediment to Mr George’s deportation arose only after his deportation order was made, in other cases the legal impediment would be apparent prior to this point, and so the order would never be made. S. 76 provides a power for the Secretary of State to revoke ILR and instead provide for limited or conditional leave. In any event the only import of this argument goes to Parliament’s intention when it passed the 1971 Act: the legislative history set out at [12] demonstrates that Parliament intended a deportation order irrevocably to extinguish prior leave to remain [16-18].

A number of arguments based on other statutes and situations were raised. Where an individual previously possessing ILR had been deported, that individual might need to return to the UK for a brief period. The Secretary of State would need to revoke the deportation order and make a fresh grant of conditional leave. It could not be right that in such a situation the previous ILR would revive, and this provided some limited support for the Secretary of State’s position. The Immigration (Leave to Enter and Remain) Order 2000 did not alter this conclusion, since the issue is the construction of the 1971 Act, and the problem existed prior to 2000 [19-21]. Mr George had based an argument on an analogy with s. 10 of the Immigration and Asylum Act 1999. However, that issue was not squarely before the court, and it would be wrong to determine its interpretation in the abstract [25-26]. The same was true of the UK Borders Act 2007 [27-28]. More fundamentally, it is wrong to reason from suggested scenarios under later Acts to the meaning of an earlier Act. Later statutes are not reliable guides to the meaning of earlier ones, particular in areas where there have been fast-moving changes to the legislation [30].

Ultimately, Lord Hughes concludes:

The terms of section 5 of the 1971 Act are, as words, capable either of importing revival of leave or of not doing so. Revival is not their natural meaning, because the natural meaning is that revocation takes effect when it happens and does not undo events occurring during the lifetime of the deportation order. Revival is a significant and far-reaching legal concept, and it is much more likely that it would have been specifically provided for if it had been intended.

Comment

The judgment makes clear that the interpretation could have gone either way but that the Supreme Court prefers one approach to the other. This is what the Supreme Court is for: it is the ultimate arbiter of legislative interpretation.

In rejecting the use of s.76 of the 2002 Act as an aide to understanding the true meaning of s.5 of the 1971 Act, Lord Hughes comments adversely on the fast and furious legislating of the last Government:

the speed and intensity of legislative change in this field undoubtedly leaves open the real possibility that not every provision is consistent with every other.

He later returns to the same theme, commenting that in immigration law “social and political pressures have led to fast-moving changes in the legislation”. Appropriately enough, the very day of judgment, yesterday, was the day that the Immigration Bill became an Act. For all the many faults in that Act, it is the current Government’s first piece of major primary legislation on immigration. Its nasty effects on migrants and ethnic minorities are carefully calculated and deliberate, not casual and accidental.