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Upper Tribunal: automatic deportation regime relieves Secretary of State of decision-making function
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Upper Tribunal: automatic deportation regime relieves Secretary of State of decision-making function

Official headnote to Yussuf (meaning of “liable to deportation”) [2018] UKUT 117 (IAC):

Section 32 of the UK Borders Act 2007 impliedly amends section 3(5)(a) of the Immigration Act 1971 by (a) removing the function of the Secretary of State of deeming a person’s deportation to be conducive to the public good, in the case of a foreign criminal within the meaning of the 2007 Act; and (b) substituting an automatic “deeming” provision in such a case. The judgments of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 make this plain. To that extent Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 250 (IAC) is wrongly decided.

The supposedly defunct Ali case was decided by Judges Ockelton and McCarthy. I’m not so sure the tribunal is right in this latest case, though. I’ve always taken the automatic deportation regime to be Parliament instructing the Secretary of State how to exercise her discretion to deport. That would still require the Secretary of State to make the formal decision. Here the Upper Tribunal finds that the instruction from Parliament amounts to a magical deemed decision by way of an implied amendment. That is… novel.

An alternative way forward might be to search the decision notice or reasons for some indication that the Secretary of State considered the deportation of the appellant conducive to the public good (the test in section 3(5)(a) of the Immigration Act 1971). It would be surprising if there were none, but the decision notices are not quoted so we do not know what was said in this particular case.

It seems conceivable, and an alternative reading of the statute and the Supreme Court decision in Hesham Ali, that the Secretary of State could deem deportation conducive to the public good, meaning that a person is “liable to deportation”, but the Secretary of State could exercise discretion not to deport — for example in cases in which human rights would be breached.


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