In SSHD v SU  EWCA Civ 1069 (20 July 2017) the Court of Appeal considered for the first time the unusual case of an individual who had been deported from the UK, returned in breach of the order, and then applied for its revocation having established a private and family life during the subsequent period of unlawful residence.
The case clarifies the applicable rules in revocation cases and provides further evidence, if it were needed, of the complexity of the relevant rules, with two differently constituted tribunals failing to consider two key (albeit very recently instituted) provisions.
In February 1998 the Secretary of State (SSHD) made a deportation order against SU. He had been sentenced to 3 ½ years for conspiracy to defraud. After exhausting his appeal rights he was deported back to Pakistan.
Not to be deterred, he re-entered the UK at some stage in 2000, in breach of the deportation order. He met and married JU, a British national, and made an application for leave to remain as her spouse in June 2003.
Over a decade later, in December 2013, the Home Office wrote to SU requesting further information, to which he promptly replied, explaining his circumstances. The Secretary of State explained that she needed to consider whether or not to revoke the deportation order before a decision could be made on the 2003 spousal application which, in February 2014, she declined to do.
Appeal to the First Tier Tribunal
SU exercised his right of appeal against the decision not to revoke the deportation order. His appeal against the decision was successful. The main governing provision to which the First-tier Tribunal judge had regard was paragraph 391 of the Immigration Rules:
391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:
(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order, or
(b) in the case of a conviction of an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
Unless, in either case the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors
The FTT judge found that the 10 year delay between the application made in 2003 and the response from the Secretary of State constituted a compelling factor that could outweigh the continuation of the order, and took the case outside of the consideration of the rules in a traditional Razgar-style Article 8 analysis.
The length of time it had taken the Secretary of State to make a decision also brought into play the delay considerations set out in EB (Kosovo) v SSHD  UKHL 41, handed down in the glorious summer of 2008 (and probably now something of a high watermark for appellant friendly case law). The judge concluded:
by reason of the peculiar delay in this case which is not attributable in any way to the appellant the decision to refuse to revoke the deportation order in this particular case would be disproportionate to the legitimate interest of immigration control and protection of the public against criminal behaviour. I bear in mind that the conviction related to an offence committed almost 20 years ago and that there has been no suggestion of any criminal behaviour on the part of the appellant since his return to the UK even though as I have found his behaviour towards his wife, his community and towards UK immigration control is highly tainted by dishonesty
On an appeal by the Secretary of State the Upper Tribunal found that these findings were sustainable and open to the FTT to make based on the evidence before it.
The missing law
The Secretary of State appealed again to the Court of Appeal, pointing out some fundamental errors in the decisions below, principally relating to the failure to apply some highly material parts of the Immigration Rules and of the recently (at the time) implemented Part 5A of the 2002 Act. The most egregious omission was consideration of Immigration Rule 399D, which could hardly be more on point:
Where a foreign criminal has been deported and enters the United Kingdom in breach of a deportation order enforcement of the deportation order is in the public interest and will be implemented unless there are very exceptional circumstances.
This provision had not been considered by the FTT, and neither by the Upper Tribunal. Similarly, no reference had been made to another key provision relating to the weight to be accorded to a private life or relationship formed during a period of unlawful residence (s.117B(4)):
Little weight should be given to-
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
It is difficult to argue that these provisions are anything other than highly material to consideration of the case in hand. Counsel for SU valiantly argued that the 339D requirement for ‘very exceptional circumstances’ was the same as that set out in rule 398, which had been applied, and which had been satisfied.
However, the Court of Appeal dismissed this contention, in effect creating a test of very very exceptional circumstances with the language of 339D (in relation to revocation) ‘suggesting a more stringent requirement’ than that in 398. One can see why the test for exceptionality might be higher for an individual who has entered in breach of a deportation order, but the Court of Appeal has little room to manoeuvre in this linguistic arms race, showcasing the risks of immoderate and increasingly strident language in the drafting of immigration rules and provisions.
The Court of Appeal also found for the Secretary of State on other grounds, including the applicability of the dicta on delay derived from EB (Kosovo) to the case in hand, contrasting the position of EB (as an asylum seeker) with SU (a person who had entered in breach of a deportation order).
The case was remitted back to the Upper Tribunal for further consideration.