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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  Imm AR 917,  EWCA Civ 92
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ON APPEAL FROM THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE RINTOUL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOLROYDE
LADY JUSTICE NICOLA DAVIES
| THE QUEEN on the application of HERSI GULED
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Sarabjit Singh QC (instructed by Government Legal Department) for the Respondent
Hearing dates: 23rd October 2018
Crown Copyright ©
Lord Justice Holroyde:
The relevant chronology:
i) Mr Guled entered the UK on 29th April 1995, using an Ethiopian passport. Two days later he claimed asylum.
ii) On 3rd April 1996 the SSHD refused the asylum application but granted Mr Guled LTR until 3rd April 1997.
iii) Over the following years the SSHD granted a series of extensions to Mr Guled's LTR. The last of those extensions granted leave until 27th July 2002.
iv) On 11th April 2000 Mr Guled was convicted of an offence of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. On 25th May 2000 he was sentenced to 4 years' imprisonment, and a recommendation was made that he be deported. He was eligible to be released from that sentence on 20th May 2002. It should be noted that Mr Guled had no previous convictions and has not subsequently been convicted of any offence.
v) On 8th May 2001 the SSHD issued a deportation order against Mr Guled. As it is not the only deportation order which is material to this appeal, I shall refer to it as "DO1".
vi) On 14th May 2001 the SSHD issued directions for Mr Guled to be removed to Ethiopia. The notice served on Mr Guled informed him that he had no right of appeal against the deportation order, but that he could appeal against the proposed destination.
vii) Mr Guled immediately appealed, on the grounds that he was not Ethiopian and could not be removed to that country.
viii) On 29th November 2001 the SSHD revoked DO1. A file copy of the formal notice of that decision merely states -"In pursuance of the power conferred upon him by section 5(2) of the Immigration Act 1971, the Secretary of State hereby revokes this deportation order."The circumstances surrounding the decision to revoke, insofar as they can be gleaned from the available evidence, will be considered later in this judgment.
ix) On 9th January 2002 the SSHD issued a second deportation order ("DO2") and directed that Mr Guled be removed to Somalia. A letter was sent to Mr Guled on 15th January 2002, informing him of those decisions, and of the further decision to detain him under the Immigration Act when he would otherwise be due to be released from his prison sentence. At the time when DO2 was issued, the circumstances in Somalia were such that removals to that country were suspended. The SSHD's intention was to enforce DO2 when circumstances in Somalia improved.
x) On 22nd January 2002 Mr Guled gave notice of appeal against the destination. His notice stated his grounds of appeal in the same terms as he had used in his earlier appeal against the removal directions issued on 14th May 2001: "I am not Ethiopian. I am from Somalia. I cannot go to Ethiopia". Mr Guled appears to have been proceeding in the mistaken belief that the SSHD again intended to remove him to Ethiopia. It does not appear that the SSHD ever sent any response to Mr Guled, or ever issued any decision on the appeal. In a letter sent to Mr Guled's solicitors on 30th April 2003, the SSHD stated that the appeal "was deemed invalid", as the deportation notice referred to removal to Somalia and not to Ethiopia.
xi) On 19th June 2002 the SSHD wrote to inform Mr Guled that it had been decided that he should remain in immigration detention. Confusingly, this letter referred to Mr Guled being liable to detention because of a deportation order made on 8th May 2001. That order, DO1, had been revoked in November 2001, and DO2 had subsequently been made.
xii) On 25th June 2002 solicitors acting for Mr Guled submitted his application (signed by Mr Guled on 14th June 2002) for ILR. I shall refer to this as the "June 2002 application for ILR". The solicitors noted that Mr Guled's current LTR would expire on 27th July 2002. The application was acknowledged on 10th July 2002, when Mr Guled was told it would be considered within 3 weeks.
xiii) Mr Guled remained in immigration detention until 28th July 2002.
xiv) Many years then passed, during which no decision was made on Mr Guled's June 2002 application for ILR. Solicitors acting for Mr Guled sent a number of letters asking for a decision on that application and emphasising the urgency of the matter, given that Mr Guled was not eligible for benefits. In October 2003 the solicitors sent urgent letters by fax indicating that Mr Guled was displaying symptoms of mental disorder and that his physical state was deteriorating as a result of living on the streets. They submitted that the delay in dealing with Mr Guled's outstanding appeal against DO2 was a factor in his poor mental health. Further chasing letters were sent in 2004. In April 2004 Mr Guled was for a time sectioned under the Mental Health Act. Mr Guled's solicitors continued to write to the SSHD at intervals. Most of their letters appear to have received no reply. For example, a letter sent by the solicitors in April 2005, referring to the exacerbation of Mr Guled's psychiatric problems and pointing out that nearly 4 years had passed without any decision being made, appears not to have received any reply; and a letter sent on 16th March 2006, asking for a decision within 14 days on Mr Guled's June 2002 application for ILR, received only a bland response saying "I am sorry that you felt cause to complain" and merely indicating that the letter had been forwarded to "the relevant business area to deal with the issues that you have raised". A letter sent on 22nd August 2006, in which the solicitors pointed out that Mr Guled had been waiting since 2002 for decisions on two outstanding matters, namely his June 2002 application for ILR and his appeal against DO2, appears not to have received a reply.
xv) During this period, letters were also sent to the SSHD by more than one MP who had become interested in Mr Guled's case. These too referred to Mr Guled's mental health. On 24th June 2004 an enquiry made by Mr Dobson MP received a reply from the Minister of State which included the following:"I have now had the position regarding Mr Guled's appeal against the removal directions reviewed. The appeal was not submitted to the Immigration Appellate Authority for determination, as it should have been, and this will now be rectified. In relation to Mr Guled's application for indefinite leave to remain and his claim that the removal would breach the UN Convention on Refugees and ECHR, this will be given urgent consideration. Mr Guled will be served with the relevant appeal notices and this will be his opportunity to put forward the full facts of the case and any compassionate circumstances. If the application is refused he will be served with a refusal to revoke the deportation order which he will be entitled to appeal against. Any appeal would be heard at the same time as his appeal against the removal directions."As is apparent from the preceding sub-paragraph, the steps indicated by the Minister were not in fact taken.
xvi) Eventually on 22nd February 2007 the SSHD wrote to the solicitors saying that Mr Guled's June 2002 application for ILR was invalid because DO2 had been signed before the application was made. The letter indicated that Mr Guled did not have a right of appeal against DO2, only a right of appeal against the destination. It stated that before removal directions could be set, removals to Somalia were suspended because of the situation in that country, but that Mr Guled's removal to Somalia would take place as soon as practicable.
xvii) On 8th May 2007 Mr Guled's solicitors wrote asking the SSHD to consider revoking DO2 and granting LTR to enable Mr Guled to work and to access benefits, as the situation in Somalia remained serious and Mr Guled had been in limbo for some 5 years. It appears that a reply to this letter was drafted but never sent, and time continued to pass without any action being taken. In September 2009 the solicitors wrote to the SSHD, enclosing a document which indicated that Mr Guled had been diagnosed with schizophrenia. They again asked that the SSHD review the decision to deport and grant LTR, and indicated (not for the first time) that judicial review proceedings would be commenced if that was not done.
xviii) That letter was acknowledged on 20th October 2009, when an indication was given that the case had been referred to a caseworker and the solicitors would hear from that caseworker "shortly". That indication was not fulfilled. On 13th April 2010 the SSHD issued a notice granting temporary admission to Mr Guled, subject to conditions as to residence and reporting, and on 16th December 2010 a letter was sent to Mr Guled asking him to provide certain information and warning him that if he did not do so within 14 days "a decision will be made on the information already available". At much the same time, however, an internal note of 3rd February 2011 disclosed by the SSHD indicates that the files had been lost and that it would be necessary to start the deportation process afresh.
xix) On 4th November 2011 the solicitors sent further medical information, confirming the diagnosis of Mr Guled's schizophrenia. On 13th April 2012 they wrote pressing for a reply. On 27th April 2012 they received a reply, apologising for the delay and asking that Mr Guled complete a questionnaire. The completed questionnaire was returned on 21st May 2012.
xx) On 6th July 2012 the SSHD gave notice of her decision to refuse to revoke DO2. The decision letter indicated that the solicitors' letter of 13th April 2012 had been treated as an application to revoke the deportation order. It had been considered in accordance with paragraphs 390 and 391 of the Immigration Rules, and the SSHD had concluded that there were no grounds for revocation. In particular, whilst it was accepted that Mr Guled required medical treatment, "an appropriate level of care" would be available to him in Somalia. The decision letter included a summary of Mr Guled's immigration history, in which reference was made to both the appeal against DO2 and the June 2002 application for ILR: the former was said to have been "deemed invalid", and nothing was said about the current status of the latter.
xxi) Mr Guled appealed against that decision to the First-tier Tribunal. An initial hearing date was adjourned at the request of the SSHD, in order to allow time for further consideration of the risk on return to Somalia and of Mr Guled's Article 8 rights.
xxii) On 15th January 2013 the SSHD indicated that she intended to proceed with the hearing of the appeal, but would make a new decision including the up to date information on Somalia and on Mr Guled's mental health.
xxiii) Notice of that fresh decision was given on 25th January 2013. It was again to the effect that there was no ground for revoking DO2. The decision letter stated that difficulty in moving Mr Guled to Somalia was not a valid reason for revoking DO2, and that the SSHD "will continue to attempt to procure a valid travel document" for him. The letter did not address the level of any risk on return.
xxiv) On 27th June 2013 the SSHD wrote to the First-tier Tribunal stating that she had decided to withdraw the decisions of 6th July 2012 and 25th January 2013, and to make a fresh decision "in due course". Two months later, on 21st August 2013, the SSHD wrote to Mr Guled's current representatives, asking for certain information. The representatives replied on 17th September 2013, providing such information as they could and asking for further time to provide medical evidence. An extension of time was granted for that purpose.
xxv) Mr Guled's representatives made further representations on 27th June 2014, asking that DO2 be revoked ("if indeed this was ever validly made") and that he be granted ILR. They asked that their representations be dealt with timeously, "given the egregious delay and mishandling of our client's case to date".
xxvi) No response was received to that letter. In August 2014, in response to a request from Mr Guled's representatives, the SSHD provided a copy of the case file. No other action appears to have been taken before the representatives sent a pre-action protocol letter on 1st December 2014 challenging the ongoing failure of the SSHD to make a decision on the issues raised. Having set out the history of the matter to date, the letter observed that there had been a delay of over 12 years in determining Mr Guled's claim against deportation. It asked the SSHD to acknowledge that there was no final deportation order against Mr Guled and that he had a valid and extant application for ILR which should be decided without further delay by the granting of ILR. In the alternative, the SSHD was asked to revoke DO2 and grant ILR.
xxvii) In response to that letter, the SSHD wrote on 12th December 2014 saying "Your client's case has been reviewed by a Senior Officer. I can confirm that the deportation order signed against your client on 9 January 2002 has been revoked as it has been invalidly obtained. Your client's case is to be reconsidered."The letter went on to state that the SSHD had decided to make a new deportation order ("DO3"). The accompanying notice of decision to deport indicated that the June 2002 application for ILR had not been considered within this decision, and gave a time limit for the provision of any further information or evidence on which Mr Guled might wish to rely in that regard.
xxviii) Further representations were made by letter dated 9th January 2015. The SSHD requested some further information, which was provided on 24th January 2015.
xxix) On 27th March 2015 the SSHD notified Mr Guled's representatives that he would be granted humanitarian protection and 5 years' LTR.
xxx) On 2nd April 2015 Mr Guled's representatives sent a pre-action protocol letter challenging that decision.
"Following discussions between [redacted] resulted in a decision that this case be dealt with outside the normal policy. A substantive summary was submitted to Lord [redacted] and on 9 January 2002 a fresh DO was signed."
"If someone appeals in time on the right forms, it is considered a valid appeal and must go to IAA. Although the appeal is nonsensical, it is for IAA to say that. He has indicated a desire to appeal and it is not for caseworker to decide it is invalid."
The claim for JR:
The decision of Judge Rintoul:
"43. There is, however, nothing in the material to demonstrate that the submissions identified as necessary were not prepared prior to the deportation order being put before the Minister for his signature of the Deportation. Moreover, there is no indication that any policy in place at the time was not considered. While it would appear that the normal policy was not to deport people to Somalia, there is no indication that there were no exceptions to that policy.
44. Drawing all these strands together, I conclude that it has not been shown the respondent acted irrationally in making the deportation order. Thus, the applicant cannot succeed under this limb of the challenge, even assuming that an irrational exercise of that power to make a deportation order would render that decision invalid."
"In the circumstances, I am not satisfied that the fact that no leave could be granted was a sufficient basis on which to say that the application had been refused or was no longer pending. I am not satisfied either that there was any basis on which the Secretary of State could have found that the application was invalid. It may have been bound to fail but that is not the same thing. Accordingly, I consider that the application for ILR is outstanding, the respondent not having the power to reject it as a nullity, and not having made a decision on the substance of the application."
The legal framework:
"3(5) A person who is not a British citizen is liable to deportation from the United Kingdom if
(a) the Secretary of State deems his deportation to be conducive to the public good
3(6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
3C (1) This section applies if
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when -
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(c) an appeal under that section against that decision (brought while the appellant is in the United Kingdom) is pending (within the meaning of section 104 of that Act), or
(d) an administrative review of the decision on the application for variation
(i) could be sought, or
(ii) is pending.
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. "
"At one time the argument was shaped into the form of saying that an order made in bad faith was in law a nullity and that, consequently, all references to compulsory purchase orders in paragraphs 15 and 16 must be treated as references to such orders only as had been made in bad faith. But this argument is in reality a play on the meaning of the word nullity. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive."
"Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all."
Lord Irvine went on to say, at p158D, that Anisminic established that there is a single category of errors of law, all of which rendered a decision ultra vires:
"No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires act or subordinate legislation is unlawful simpliciter and, if the presumption in favour of its legitimacy is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever."
"During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its invalidity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity."
Lord Browne-Wilkinson added that the status of an unlawful act during the period before it was quashed is "a matter of great contention and of great difficulty", and he preferred to express no view on the point as it was not necessary to do so in order to decide the appeal.
"I consider that the result of allowing a collateral challenge in proceedings before courts of criminal jurisdiction can be reached without it being necessary in this case to say that if an act or byelaw is invalid it must be held to have been invalid from the outset for all purposes and that no lawful consequences can flow from it. This may be the logical result and will no doubt sometimes be the position but courts have had to grapple with the problem of reconciling the logical result with the reality that much may have been done on the basis that an administrative act or a byelaw was valid. The unscrambling may produce more serious difficulties than the invalidity. The European Court of Justice has dealt with the problem by ruling that its declaration of invalidity should only operate for the benefit of the parties to the actual case or of those who had begun proceedings for a declaration of invalidity before the court's judgment. In our jurisdiction the effect of invalidity may not be relied on if limitation periods have expired or if the court in its discretion refuses relief, albeit considering that the act is invalid. These situations are of course different from those where a court has pronounced subordinate legislation or an administrative act to be unlawful or where the presumption in favour of their legality has been overruled by a court of competent jurisdiction. But even in these cases I consider that the question whether the acts or byelaws are to be treated as having at no time had any effect in law is not one which has been fully explored and is not one on which it is necessary to rule in this appeal and I prefer to express no view upon it. The cases referred to in Wade and Forsyth, Administrative Law 7th ed. (1997), pp. 323-324, 342-344 lead the authors to the view that nullity is relative rather than an absolute concept (p. 343) and that "void" is meaningless in any absolute sense. Its meaning is "relative." This may all be rather imprecise but the law in this area has developed in a pragmatic way on a case by case basis."
"it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act, and it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void."
"A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police "
"There will, however, be some cases where appeals are allowed by the Tribunal on the basis that there was a breach of a rule of public law in the process of making the decision to make the order, where the nature of the breach will be such as to render the detention unlawful. Examples of such breaches are mentioned in Ullah: where the Tribunal concludes that the appellant was not a person liable to deportation, or the decision to make a deportation order was made in bad faith . It must however be acknowledged that it is difficult to identify any principled basis for distinguishing between those public law errors which will render the decision to detain unlawful and those which will not. Errors of law are many and various and, as Lord Dyson said in paragraph 66 of Lumba: 'The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires'."
"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."
Lord Hughes went on to say, at , that construction of the section against revival was consistent with the overall scheme of IA 1971 in relation to deportation. He continued:
"The position of Mr George is not analogous to someone with a pending appeal. His status as a person liable to deportation has long since been established; his appeal challenging it failed long ago. Persons are liable to be deported, under any of the procedures which may apply, because their presence in the United Kingdom is judged not to be conducive to the public good. That is true of Mr George. If it turns out that there is a legal obstacle to actual removal, for example because of Convention rights which cannot be infringed, that does not alter the fact he is a person whose presence is not conducive to the public good. There is no legal symmetry in indefinite leave to remain co-existing with the status of someone whose presence is not conducive to the public good. It makes perfectly good sense, whilst the legal obstacle remains, for the Secretary of State to be in a position to re-visit the terms of leave to enter. Moreover, the legal obstacle is not necessarily, or even usually, permanent. If it arises from conditions in the individual's home country, those conditions may change or he may come into favour with the authorities when previously he was not. If it arises from his family connections in the United Kingdom, those may easily change. If someone in his position cannot at present be deported because to do so would infringe his article 8 rights, and if indefinite leave to remain were thereupon to revive, he would remain irremovable if he turned his back on his family, or they on him, as may not infrequently occur. Whilst there may be different routes by which the Secretary of State could now achieve a similar result, for example via section 76 of the 2002 Act, it is clear that this was also the coherent result of the 1971 Act, from the time that it was enacted.
32. On its correct construction, section 5(2) of the 1971 Act does not mean that if the deportation order is revoked, the invalidation by section 5(1) of leave to remain is retrospectively undone and the previous leave to remain does not revive. Mr George remains liable to deportation, even though it cannot at present be carried out. His position in the United Kingdom must be regularised, but that does not entail a recognition of indefinite leave to remain. The Secretary of State's grant to him of successive limited leaves is perfectly proper. Whether or not it may become appropriate after the passage of time to re-grant indefinite leave is a matter for her."
The submissions on appeal:
Lady Justice Nicola Davies:
Lord Justice David Richards: