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17 years and counting for an indefinite leave to remain decision

17 years and counting for an indefinite leave to remain decision

I acted for the appellant in the extraordinary case of Guled v SSHD [2019] EWCA Civ 92, in which the Court of Appeal ruled on the legal status of a deportation order made in 2002.

2002: deportation order made

Even by immigration standards, Mr G had a complex case. We pieced it together from his Home Office file which we obtained under a Data Protection Act subject access request.

It soon became apparent that the case had been mishandled at each stage. The subject access file included handwritten notes from immigration officials, dating back over decades, expressing their bafflement as to how the case should proceed.

They wrongly, and repeatedly, stated that his application for indefinite leave to remain (ILR) submitted in 2002 was invalid.

The application was not invalid. Mr G had made an in-time application for ILR after holding exceptional leave to remain for four years.

The complicating factor: he had been convicted of a crime and sentenced to four years’ imprisonment.

A deportation order was made as a result. Mr G appealed against the destination of removal — Ethiopia — as he was a Somali national. The deportation order was revoked. The Secretary of State sought to make a second deportation order, this time to Somalia, in 2002. But removals there were suspended owing to the country conditions.

In meantime, Mr G pressed for a decision on his ILR application.

2014: Home Office admits deportation order was “invalidly obtained”

Fast forward 12 years and in response to pre-action protocol correspondence, the Secretary of State accepted that the second deportation order was invalidly obtained. It was therefore Mr G’s case that the order was void ab initio — that is, it never had any legal effect — so Mr G had by this time held exceptional leave to remain for 15 years. His application for ILR must now be determined, and criminality aside, given the historic delay he should finally be granted ILR.

The Secretary of State did not accept this. He sought to grant Mr G limited leave to remain for five years on humanitarian protection grounds. For most clients this is normally a happy result, but for Mr G, who had already held limited leave and so precarious status for approaching two decades, this was small recompense.

2016: Upper Tribunal proceedings

We initiated judicial review proceedings. The Secretary of State was slow to take part, only filing his defence a few weeks before the substantive hearing — a slowness he was subsequently penalised for with indemnity costs.

The Upper Tribunal made a declaration that Mr G’s application for ILR should now be determined. However, it didn’t resolve the true issue between the parties: the legal impact of the invalidly obtained second deportation order on Mr G’s extant leave.

Following the decision of the Supreme Court in R (George) v SSHD [2014] UKSC 28, it is an accepted principle that leave to remain that is brought to an end by a validly made deportation order is not revived when that deportation order is revoked or overturned on appeal. The question raised by this case was whether the same is true of a deportation order that is accepted not to have been validly made.

The consequence of the deportation order being void ab initio would be (a) that Mr G had remained lawfully in the UK with leave extended under section 3C of the Immigration Act 1971 during the period during which his application for ILR had been outstanding and (b) that if the Secretary of State had properly applied his own policy, he would have been granted ILR in or about 2007.

2019: case reaches Court of Appeal

So then, what effect did the invalidly obtained deportation order have on Mr G’s extant leave? The short answer is none. In the unusual circumstances of this case, the Anisminic principle applied. The second deportation order was void ab initio and so did not invalidate Mr G’s leave. The unlawful act had no legal effect. The Secretary of State must now, almost 17 years after the application was made, decide whether to grant Mr G ILR.

The Secretary of State’s 2014 response describing the deportation order as “invalidly obtained” was of vital importance. It was a formal letter, drafted relatively recently, and given the “extraordinary chronology” the author of the letter could have been expected to have some knowledge as to why the order had been “invalidly obtained.”

The Court of Appeal held the Secretary of State to his word, as expressed in that letter, in finding that the deportation order was a nullity. Invalidly obtained is an imprecise term but its meaning was clear. Practitioners will be familiar with the Secretary of State worming his way out of agreements in response to pre-action letters, or even forms of consent, so all round this is a welcome decision.

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Nicola Burgess is Legal Director at the Joint Council for the Welfare of Immigrants. She has over 12 years’ experience working in immigration and asylum law. She qualified as a solicitor in 2009 and is also an IAAS level 2 accredited caseworker and supervisor. Nicola has a particular interest in legal aid work and assisting the most vulnerable: including victims of torture, those with mental health issues and victims of trafficking. She has developed considerable expertise in representing foreign national prisoners in challenging their deportation and securing their release from detention. Nicola regularly secures damages on behalf of her clients who have been found to be unlawfully detained.

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