Case Comment: R (on the application of Fitzroy George) v Secretary of State for the Home Department [2014] UKSC 28
The Supreme Court recently handed down its judgment in the case of R (on the application of Fitzroy George) v Secretary of State for the Home Department [2014] UKSC 28. This case concerns the provisions of s5(1) of the Immigration Act 1971 (“s5(1)”) and overturns the Court of Appeal judgment in the matter: [2012] EWCA Civ 1362. The issue was whether a successful appeal against a decision to refuse to revoke a deportation order had the effect of reviving leave that had been invalidated by the making of the deportation order. The Supreme Court held that leave was not revived.
The Claimant, Mr George, came to the UK in 1995, when he was 11. In March 2000, age 16, he was granted indefinite leave to remain in the UK. It is unclear why he was not registered as a British citizen whilst still a child (for example under s3(1) of the British Nationality Act 1981). It may be that he did not apply; or perhaps his application was refused. In any event Mr George remained a foreign national subject to immigration control – including the inherent risk of deportation or removal. His subsequent convictions for serious offences began as early as January 2002, when he was sentenced to a three year period of custody in a Young Offenders’ Institution, and continued until April 2005 when he was sentenced to four years imprisonment. In January 2007 he was notified that a decision had been made to make a deportation order against him on the grounds that this was conducive to the public good. His appeal against that decision was, ultimately, unsuccessful and a deportation order was made against him in April 2008. His indefinite leave to remain was invalidated by s5(1) and, at that stage, Mr George can have expected to have been deported from the UK imminently.
For reasons which are unclear that did not happen. Mr George remained in the UK. His application for revocation of the deportation order (which appears to have been along similar lines to those raised in the initial appeal process) was refused. Undeterred, and after what the Supreme Court describes as “a number of intermediate legal processes”, Mr George appealed again. In March 2009 that appeal was, perhaps surprisingly, allowed.
Further legal proceedings ensued as the Secretary of State did not accept Mr George’s subsequent claim that his indefinite leave to remain in the UK had been revived by the successful appeal. The High Court agreed with the Secretary of State; however, notwithstanding further convictions in 2009, Mr George was successful at the Court of Appeal as that court accepted that to find otherwise would mean that there were mutually incompatible provisions of statutory law – in particular s76 of the Nationality Immigration and Asylum Act 2002.
The Supreme Court accepted that s5 of the Immigration Act 1971 was capable of bearing an interpretation that would revive Mr George’s leave, but found that the reasoning of the Court of Appeal could not be supported. It went on to find that the “natural meaning” of s5 supported the interpretation, contended for by the Secretary of State, that meant previous leave was not revived.
The result for Mr George is that he remains lawfully in the UK, albeit with limited leave to remain. He will need to maintain sufficient private and family life in the UK so as to justify further grants of leave, pay for further renewal applications, and ensure that each application is accepted as valid by the Secretary of State.
For those who are or may become involved in the deportation process this case confirms the importance of perseverance and of engaging fully with the process at the earliest opportunity: a successful first instance appeal may have resolved the matter successfully for Mr George without the stress of lengthy legal proceedings yet failure at first instance has not, ultimately, resulted in removal on this occasion. For others, the case acts as a cautionary reminder of the need for foreign nationals to protect their settled status in the UK – whether this be by seeking naturalisation as a British citizen or, more simply, by ensuring that they do not risk having a deportation order made against them. The deportation and associated legal processes can be long and draining, even when ultimately successful.
For those who do not have leave but who cannot be removed, the Supreme Court records that the Secretary of State accepted that “… some leave must be granted if removal is impossible”. This has the appearance of a general statement of wider significance; however the extent to which the Secretary of State is willing to apply that principle to other people (whether or not convicted) is far from clear.
The Supreme Court’s approach to potentially inconsistent statutory provisions is also of interest. The Court recognised that social and political pressures have led to fast-moving changes in legislation and appears to suggest that, although relevant statutes should be construed consistently if possible, this may not always be possible. The question may therefore arise as to how to reconcile supposedly inconsistent statutory provisions. The Court avoided the issue in this case by observing that its interpretation of the law was “entirely consistent” with other relevant provisions; however its indication as to how to resolve such inconsistencies as and when they do arise itself appears somewhat inconsistent: “… a later statute is not a reliable guide to the meaning of an earlier one”; but “successive [later] rules laid before Parliament” (which are not statutes) were relied on by the Court in aid of its interpretation of the 1971 Act.
With the recent passing into law of the Immigration Act 2014 (an Act which severely limits the appeal rights of foreign nationals) further statutory interpretation will be required.
