The making of a deportation order automatically invalidated a grant of indefinite leave to remain. Revocation of the deportation order would revive the indefinite leave to remain, but in the case of a foreign criminal who could not be deported for legal reasons, the Secretary of State had power to revoke leave under section 76 of the Nationality, Asylum and Immigration Act 2002.

The Court of Appeal so stated (Stanley Burnton LJ dissenting) when allowing the appeal of Mr Fitzroy George against the decision of Judge Bidder QC sitting as a deputy High Court judge in the Administrative Court on 9 December 2011. The judge had refused his claim for judicial review of the decision of the Secretary of State of the Home Department dated 18 February 2010 not to reinstate his indefinite leave to remain. The claim followed Mr George’s successful appeal against the Secretary of State’s refusal to revoke a deportation order made against him. The appeal tribunal had found that although the Secretary of State had lawfully deemed his deportation to be conducive to the public good, his deportation would breach his rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Secretary of State had refused to reinstate the indefinite leave but had made successive grants of six months’ discretionary leave to remain.

SIR STEPHEN SEDLEY said that section 5(1) of the Immigration Act 1971 spelt out the prospective effect of the making of a deportation order on the deportee's existing leave to enter or remain: the leave ceased to be valid. Section 5(2) then provided for revocation of a deportation order, but it did not say what was to happen in that event to the individual's leave to enter or remain: did it remain invalid or did it revive? The answer was given by section 76 of the Nationality, Immigration and Asylum Act 2002: where a foreign criminal could not be deported for legal reasons (as here), the Secretary of State was given power to revoke any indefinite leave which had previously been granted. That provision had two unspoken but in his Lordship’s view inescapable premises. The first was that, unless the Home Secretary decided to use the section 76(1) power, the foreign national's leave to enter or remain continued in being. The second was that the existence of legal reasons for withholding deportation need not require a tribunal determination since in clear cases the Home Secretary herself could decide that for human rights reasons a deportation order should not be made. For these reasons his Lordship found persuasive Mr Knafler's straightforward propositions that, although the deportation order while it lasted automatically invalidated the claimant's leave to remain, the revocation of the order consequent on the tribunal's determination logically meant that it could no longer have that effect; but that it was and remained open to the Home Secretary, if she thought right, to revoke the claimant's leave to remain, giving him a right of appeal. There was nothing in the language or configuration of the legislation which demanded or implied a different conclusion.

MAURICE KAY LJ agreed.

STANLEY BURNTON LJ gave a dissenting judgment