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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S2 v The Secretary of State for the Home Department  EWHC 993 (Admin) (30 April 2018)
Cite as:  EWHC 993 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|The Secretary of State for the Home Department
Robin Tam QC and Natasha Barnes (instructed by GLD) for the Defendant
Hearing dates: 12/04/2018
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE :
The legislative scheme
i) A person no longer has a right of appeal against a decision made under section 76 of the 2002 Act to revoke his ILR.
ii) A challenge to such a decision can only now be made by an application for judicial review.
iii) It follows that it is no longer possible to challenge the merits of a decision to revoke ILR; any challenge can only be made on conventional public law grounds.
iv) There is no statutory protection from removal while such an application is pending.
v) The effects of the revocation decision are no longer suspended by statute.
The relevant authorities
Stay of an administrative decision
Appeals to SIAC against decisions to deport on conducive grounds: Rehman
Appeals to the Upper Tribunal against deportation orders on conducive grounds: Bah
The revocation of a deportation order made under section 5 of the 1971 Act does not revive any previous leave to remain: George
Interim relief: Cyrus
i) The decision in this case is inconsistent with the statutory scheme. Ms Weston relies on the decision of the House of Lords in Padfield v Ministry of Agriculture, Fisheries and Food  AC 997.
ii) If and in so far as the Secretary of State had power to revoke the Claimant's ILR, she exercised her discretion unlawfully, unfairly and unreasonably.
iii) The Secretary of State had no power to revoke the Claimant's ILR because he is not, and was not at the date of the decision, 'liable to deportation'. This argument is said to raise a question of 'precedent fact'.
Was the Claimant liable to deportation at the date of the decision?
Was the decision inconsistent with the statutory scheme?
Did the Secretary of State exercise her discretion unlawfully?
Conclusion on permission
i) None of the current challenges to the revocation decision is arguable.
ii) Nonetheless, I defer the decision on permission to apply for judicial review.
iii) I stay the application for permission to apply for judicial review pending the determination of the proceedings in SIAC or further order in the meantime.
iv) I refuse the application for interim relief.