[2025] UKUT 00385

Case title: R (on the application of MM) v Secretary of State for the Home Department (effect of withdrawal section 94B) (IJR)
Appellant name: R (on the application of MM) v Secretary of State for the Home Department
Status of case: Reported
Hearing date: 29 Sep 2025
Promulgation date: 30 Oct 2025
Publication date: 13 Nov 2025
Last updated on: 13 Nov 2025
Country: Not applicable
Judges: UPPER TRIBUNAL JUDGE KEBEDE
Keywords effect of withdrawal section 94B) (IJR

The decision

UT Neutral Citation Number: [2025] UKUT 00385 (IAC)

R (on the application of MM) v Secretary of State for the Home Department (effect of withdrawal section 94B)

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

Hearing date: 29 September 2025
Promulgated on: 30 October 2025

Before:

UPPER TRIBUNAL JUDGE KEBEDE

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Between:

THE KING
on the application of

MM
(Anonymity Order made)
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr S Cox
(instructed by Wilson Solicitors LLP), for the applicant

Mr J Anderson, Counsel
(instructed by the Government Legal Department) for the respondent

(1) Where, after making a deportation order under the automatic deportation order provisions in s.32(5) of the UK Borders Act 2007, the SSHD withdraws her refusal of a human rights claim (the Stage 2 deportation decision), the deportation order continues to have effect and there is no requirement on the SSHD to revoke that deportation order, although she has the power to do so.

(2) Where, after making a deportation order under the automatic deportation order provisions in s.32(5) of the UK Borders Act 2007, the SSHD withdraws the s.94B certification of the human rights claim, the deportation order continues to have effect and there is no requirement on the SSHD to revoke that deportation order, although she has the power to do so. The SSHD may then make a new, non-certified, decision refusing the human rights claim without the deportation order being affected.

(3) In neither case does the withdrawal of the decision have the effect of reinstating or resurrecting any leave to enter or remain which was invalidated by the deportation order.

(4) A decision allowing an appellant’s appeal against the refusal of a human rights claim (a Stage 2 deportation decision) does not impose any legal obligation on the SSHD to regard the subsequently revoked deportation order as having no continuing effect on the appellant’s previously held leave to enter or remain.

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J U D G M E N T

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Judge Kebede:

Anonymity Direction

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the applicant, likely to lead members of the public to identify the applicant without that individual’s express consent. Failure to comply with this order could amount to a contempt of court.

1. The above anonymity direction has been made pursuant to the applicant’s request, and in the absence of any objection from the respondent, in order to give consistency to the order previously made in relation to the applicant’s protection and human rights appeal.

2. This is an application for judicial review of the decision of the Secretary of State for the Home Department (‘SSHD’) dated 16 January 2023 granting the applicant 30 months’ discretionary leave. Permission to apply for judicial review was granted on the papers by Upper Tribunal Judge Jackson in an order issued on 28 June 2023.

Background

3. The applicant is a national of Somalia, born on 11 January 1984. He arrived in the UK as a child, with his mother, on 26 March 1993, and was a dependent on her asylum claim. He and his mother were granted exceptional leave to remain, followed by further leave to remain, and then on 28 April 2003 they were granted indefinite leave to remain in the UK.

4. From October 2008, the applicant was convicted of various criminal offences. Following a conviction on 13 October 2015 on three counts of burglary, he was sentenced to 27 months’ imprisonment. That led to the respondent issuing, on 26 October 2015, a non-conducive Stage 1 deportation decision advising the applicant that he was liable to deportation action under section 32(5) of the UK Borders Act 2007. The applicant was invited to make representations in response. His wife made representations on his behalf, which were treated as a human rights claim. On 20 June 2016, in a Stage 2 deportation decision, the respondent made a decision to refuse the applicant’s human rights claim and maintain the decision to deport him. The respondent also certified the applicant’s claim under section 94B of the Nationality, Immigration and Asylum Act 2002. A deportation order under section 32(5) UK Borders Act 2007 was signed on the same day, 20 June 2016.

5. On 19 August 2016 the applicant confirmed that he wished to claim asylum. He was interviewed about his claim.

6. Following the Supreme Court judgment in R (Kiarie & Byndloss) v SSHD [2017] UKSC 42 on 14 June 2017, the respondent, on 9 August 2018, withdrew the decision of 20 June 2016 refusing the applicant’s human rights claim and the s94B certification and made a new decision, in which the applicant’s protection and human rights claim was refused, with an in-country right of appeal.

7. The applicant exercised his right of appeal and gave notice of appeal. His appeal was heard in the First-tier Tribunal on 16 March 2020. The appeal was dismissed in a decision made on 9 April 2020. However, the First-tier Tribunal’s decision was subsequently set aside and re-made in the Upper Tribunal, and was allowed, on human rights grounds only, in a decision made on 30 March 2022. The respondent applied for permission to appeal to the Court of Appeal but was refused permission.

8. It appears from the respondent’s case notes that the deportation order previously made on 20 June 2016 was then revoked on 18 December 2022. There does not appear to be any revocation decision as such for that date. However, in a letter dated 16 January 2023, following a request from the applicant to the respondent that he be issued with a biometric residence permit (‘BRP’) confirming his immigration status, the respondent confirmed that, whilst it had been decided that the applicant’s deportation was conducive to the public good, no steps would be taken to deport him. The letter confirmed that the applicant had been granted 30 months’ discretionary leave.

9. The applicant’s solicitor wrote to the respondent on 26 January and 19 March 2023 requesting an explanation as to why he had been granted 30 months’ discretionary leave when he had previously had indefinite leave to remain, and sent a formal pre-action letter to the respondent on 23 March 2023 requesting confirmation that he had indefinite leave to remain (ILR). The Respondent responded on 4 April 2023 stating that, whilst the applicant would have continued to have ILR had his human rights claim not been certified on 20 June 2016, his ILR had been invalidated by the certification decision notwithstanding that it had been withdrawn.

Judicial Review Claim and Grounds

10. The applicant lodged a judicial review claim challenging the respondent’s decision of 16 January 2023, on the grounds that the legal effect of the withdrawal of the certification decision was that he was to be treated as if the certification decision had not been made and was a nullity, as if he had always been subject to an automatic deportation order but with a pending in-country right of appeal, and that the certification decision was therefore never capable of disapplying (or having disapplied) the suspensive effect of section 79(4) of the Nationality, Immigration and Asylum Act (NIAA) 2002 so as to invalidate his ILR. Alternatively, it was argued that the applicant’s ILR was revived once the certification was withdrawn. The relief sought by the applicant in his claim was a declaration that he had indefinite leave to remain in the UK.

11. On 16 May 2023 the respondent filed an Acknowledgement of Service and summary grounds of defence, responding to the applicant’s grounds of challenge and submitting that the applicant’s ILR had been invalidated on 20 June 2016 when the three decisions were served, namely the decision to refuse the applicant’s human rights claim, the certification of the applicant’s claim under s94B of the Nationality, Immigration and Asylum Act 2002, and the deportation order under section 32(5) UK Borders Act 2007. It was asserted that, in light of the judgment in Kiarie & Bindloss v SSHD [2017] UKSC 42, the decision of 20 June 2016 refusing the applicant’s human rights claim and the s94B certification were “withdrawn” but not “quashed”, and it was never agreed that they would be treated as never having been of effect. Rather, the respondent simply reconsidered the human rights claim and made a new decision, making it clear that the original deportation order signed on the 16 June 2016 remained valid and would only be revoked should the applicant subsequently successfully appeal the decision.

12. Permission to apply for judicial review was granted by UTJ Jackson on 28 June 2023, as follows:

“The application for permission concerns the legal effects of the withdrawal of a certification decision on a prior Deportation Order and in particular whether the Applicant’s indefinite leave to remain has been or remains revoked in these circumstances or whether he had, or now has the protection in sections 78 and 79. The grounds are arguable as to the effect of withdrawal.”

13. The applicant’s judicial review claim was then stayed, at the request of the respondent, pending the outcome of the case of Ijoyah v Secretary of State for the Home Department (JR-2022-LON-001034), which had been heard in the Upper Tribunal on 21 June 2023 but which had not yet been determined, and which concerned similar arguments and issues. The decision in Ijoyah was issued on 23 December 2024 and was upheld by the Court of Appeal in an Order of 10 June 2025 refusing permission to appeal to the Court of Appeal. Directions were made for the applicant to file amended grounds of claim in light of the decision in Ijoyah.

14. On 25 April 2025, the applicant filed amended grounds which consisted of three grounds expressed in the alternative. Firstly, that the respondent’s 9 August 2018 withdrawal of the decision of 20 June 2016 refusing his human rights claim imposed on the respondent a legal obligation to revoke the deportation order of 20 June 2016 and to regard it as having had no effect on his indefinite leave to remain. Secondly, and alternatively, that the respondent’s 9 August 2018 withdrawal of the decision of 20 June 2016 certifying his human rights claim (the certification) imposed on the respondent a legal obligation to revoke the deportation order of 20 June 2016 and to regard it as having had no effect on his ILR. Thirdly, and alternatively, that the effect of the Upper Tribunal decision of 30 March 2022 allowing his appeal against the 9 August 2018 decision imposed a legal obligation on the respondent to regard the deportation order of 20 June 2016 as having had no effect on his ILR.

15. The respondent filed her detailed grounds of defence in response on 22 May 2025, asserting that it was not now open to the applicant, having made no previous challenge to the certification of the applicant’s human rights claim or to the respondent’s confirmation that the deportation order remained unaffected by the withdrawal of the human rights claim, to do so now, as a collateral challenge to the claim. The respondent went on to address the grounds, asserting that there was no reason why withdrawal of a human rights decision and/or certification made in the context of a deportation decision required the respondent also to withdraw a deportation order, that the decision of the Supreme Court in Kiarie & Byndloss did not have the effect of invalidating all certificates pursuant to section 94B of the 2002 Act or decisions made on the basis of such certificate, and that the respondent did not concede that the certification was unlawful.

16. The applicant filed a reply to the detailed grounds of defence on 4 June 2025, asserting that it was not improper, in a judicial review claim concerning whether he had ILR, to attack the validity of the SSHD’s decision which is said to have ended his ILR, namely the certification, and/or notification that a deportation order continued to be valid. Reliance was placed on the case of R (Guled) v SSHD [2019] EWCA Civ 92 in that regard. It was also argued that the respondent could not raise the timeliness/ delay issue because it had not been raised previously in the Acknowledgement of Service and could not be reopened once permission had been granted. Finally, it was stated that there was nothing from the respondent to show that the certificate was considered to be lawful or to show that its withdrawal was due to any reason other than it being unlawful.

17. Both parties filed skeleton arguments for the hearing, which was then listed before me.

Hearing and submissions

18. In his skeleton argument, the applicant set out the issues to be decided as follows:

(1) Should he be barred from advancing the claim (or some grounds) because the claim was an improper collateral attack on the certificate and/or on the SSHD’s 9 August 2018 statement that her human rights refusal withdrawal did not affect the deportation order?

(2) Is he barred from advancing some or all of the claim as “out of time”?

(3) Where the respondent refuses a human rights claim, then makes a deportation order, and then withdraws the refusal of the human rights claim, should the (later revoked) deportation order be regarded as having had no effect on the subject’s ILR?

(4) Was the certificate unlawfully made?

(5) Where a certificate was unlawfully made under section 94B NIAA 2002, should the (later revoked) deportation order be regarded as having had no effect on the subject’s ILR?

(6) Where an appeal is finally allowed against a refusal of a human rights claim made before a deportation order was made, is that order to be regarded as having had no effect on the subject’s ILR?

19. Both parties made detailed submissions before me.

20. Mr Cox submitted that the respondent’s ‘collateral challenge’ argument was the same as the delay argument, as the respondent was effectively saying that the applicant should have sought relief in respect of the other decisions but chose not to until he was out of time to do so. He submitted that the respondent was precluded from raising a delay argument at this point as it had not been raised previously and the claim had already been admitted. He submitted that relief was not, however, being sought in respect of those other decisions and that it was not improper for the applicant to advance ground one without seeking to judicially review the other decisions. There could not have been a challenge to the certificate in the 2023 judicial review claim, since the certificate had been revoked in 2018 and neither could there have been a challenge to the deportation order when it had been revoked by then. Mr Cox relied upon the case of Majera, R (on the application of v Secretary of State for the Home Department [2021] UKSC 46 in submitting that, whilst the unlawfulness/legal defectiveness of the earlier decisions was a fact and could not be changed, what could be challenged was the consequences of the findings of unlawfulness and it was on that basis that the applicant was seeking relief in the form of a declaration from the respondent that she would treat him as having continued to have held ILR, which was not, he submitted, a collateral challenge.

21. Mr Cox took the Tribunal through the statutory scheme as set out in his skeleton argument, from [32], submitting that the language involved in the definition of a human rights claim in section 113 of the NIAA 2002 was important in its reference to the ‘requirement to leave’ the UK as well as ‘removal’, which tied in with the making of a deportation order. He referred to sections 78 and 79 of the NIAA 2002, in particular to section 79(4) which made clear that leave to enter or remain was not invalidated by a deportation order made under section 32 of the 2007 Act where there was a pending appeal. Mr Cox submitted that, reading all the statutory provisions together, it was clear that the respondent had to decide a human rights claim before making a deportation order, subject to the exception in section 94B where the claim had been certified. He submitted that the Upper Tribunal’s decision to the contrary, in Ijoyah, was wrong, and that in any event this applicant’s case was now being argued on a different basis. With regard to the decision in George, R (on the application of) v The Secretary of State for the Home Department [2014] UKSC 28, Mr Cox submitted that the facts were fundamentally different to the applicant’s case as the case of George involved an appeal against a decision to refuse to revoke a deportation order rather than, as here, a pending first appeal.

22. Mr Cox submitted that the respondent’s argument, that she did not have to decide a human rights claim before making a deportation order, was inconsistent with the statutory scheme relating to human rights claims and deportation, in sections 78 and 79, and 82 and 84 NIAA 2002. He submitted that, had there been no gap between the withdrawal of the decision on the applicant’s human rights claim and the subsequent re-refusal of his claim, for example if a supplementary decision had been made rather than withdrawing and making a fresh decision, there would not have been an issue with the deportation order. However, once the respondent withdrew the decision on the applicant’s human rights claim, she was obliged, under the statutory scheme, to revoke the deportation order, and once the new decision was made, she could then have made a fresh deportation order if the appeal against that decision was dismissed. Once revoked, the deportation order would then no longer have continued to invalidate the applicant’s ILR. Mr Cox submitted that the respondent was obliged to put the applicant back into the position he would have been in if the deportation order had not been made and the human rights claim had not been refused, so that he would still have ILR. He submitted that the Tribunal should find that the respondent acted unlawfully in not doing so, although he made clear that the only relief being sought was in relation to the maintenance of the applicant’s ILR.

23. Mr Cox submitted that ground two was in the alternative, if the first ground was not accepted. He submitted that the certification of the applicant’s human rights claim was unlawfully made, and that that was evident from the fact that the only reason for it being withdrawn was the judgment in Kiarie, with nothing specific relating to the applicant’s factual circumstances being raised as a reason. He submitted that the only relief required, if the ground was accepted as made out, was for the respondent to record that the applicant still had ILR. As for the third ground, Mr Cox submitted that the effect of the decision allowing the applicant’s appeal was that it was found that requiring him to leave the UK was unlawful. The respondent was bound to follow the Tribunal’s decision and, as a result of the Tribunal’s decision, the respondent’s decision was undone and could no longer be relied upon. The invalidating effect of the deportation order in relation to the applicant’s ILR was accordingly undone, so that his ILR was no longer invalid. Mr Cox relied upon the case of Al-Siri, R (on the application of) v Secretary of State for the Home Department [2021] EWCA Civ 113 in regard to the binding effect of the Tribunal’s decisions. He asked that the respondent treat the applicant as always having had ILR.

24. Mr Anderson then made his submissions. He addressed the ‘collateral challenge’ argument, submitting that the applicant was using his claim as a means to challenge the respondent’s decision-making in 2018, when the decision in the human rights claim was withdrawn and the deportation order was not revoked, and to challenge the certification decision in 2016. He submitted that the applicant should not be permitted to use what purported to be a challenge to a 2023 decision as a vehicle to challenge those earlier decisions. He submitted that that was different to a delay argument as it was not suggested that the claim was out of time in so far as it challenged the 2023 decision. The applicant had not sought to amend his claim to challenge the earlier decisions, but if he had done so, they would have been rejected as out of time. Mr Anderson agreed that the courts would sometimes entertain a challenge to an earlier decision in a challenge to a later claim, in certain circumstances, such as in Guled, R (on the application of) v The Secretary of State for the Home Department [2019] EWCA Civ 92, but he submitted that the circumstances in that case were very different and that the challenge should not be permitted in this case.

25. Mr Anderson addressed the statutory framework. He relied upon section 33(2) of the 2007 Act which made it clear that Exception 1 was about removal rather than status. He submitted that it was clear that even if the SSHD concluded that removal would be in breach of the applicant’s human rights, that did not prevent a deportation order being made. Mr Anderson submitted that that fitted in with the appeal framework under the 2002 Act. Mr Anderson responded to the propositions set out in the applicant’s skeleton in ground one. With regard to the first proposition, that where a human rights claim had been made SSHD could not lawfully make a deportation order without determining that human rights claim, Mr Anderson submitted that that was not a matter which required determination in this case because the respondent had considered the applicant’s human rights claim and had refused it before making the deportation order. He submitted that, in any event, the statutory scheme did not require the respondent to determine a human rights claim before making a deportation order, as the making of a deportation order was a different decision, exercising a different power, from that of considering whether a human rights exception under section 33 of the 2007 Act applied. He relied upon section 33(7) which expressly provided that the Secretary of State was not precluded from making a deportation order where an exception applied. He accepted that the Secretary of State would have to make a decision on a human rights claim before removing a person, but submitted that that was because she was required, under section 6 of the Human Rights Act 1988, to act compatibly with the ECHR. The deportation order, however, was not only about removal. Mr Anderson submitted that there was a policy logic to that. He relied upon the decision of the Upper Tribunal in Ijoyah which supported that analysis.

26. Mr Anderson submitted that even if the applicant was right in relation to the first proposition, the second proposition, that the SSHD had to revoke a deportation order after withdrawing her decision refusing a human rights claim, did not follow. He submitted that there was nothing in the statutory framework supporting such a proposition, nor was there any authority to support it, and it was contrary to the logic accepted in George. There were any number of reasons why a decision may be withdrawn and which did not imply that the original decision was wrong or unlawful ab initio such that any legal effect it had was undone. Mr Anderson relied upon the case of Akinola [2021] EWCA Civ 1308, at [65], [66] and [68], in that respect. As for the third proposition put forward by the applicant, namely that where the SSHD withdrew a human rights decision, the previous ILR status had to be treated as reviving, Mr Anderson submitted that that was not the case, as recognised in George.

27. With regard to the second ground of challenge, relating to the withdrawal of the s94B certificate, Mr Anderson submitted that that was also an impermissible collateral challenge. He relied upon the case of Nixon & Anor, R (on the application of) v Secretary of State for the Home Department [2018] EWCA Civ 3 at [75] as clarifying that the effect of Kiarie was not that all section 94B certificates were unlawful, but that it depended upon the facts. He submitted that if the applicant had wanted to challenge the certificate he should have done so at the time, when there would have had to be a fact sensitive enquiry, and should not be permitted to make his claim now. Mr Anderson submitted that it was going too far to say that it should be inferred, from the withdrawal of the certificate, that the certificate was unlawful or invalid. In any event, Mr Anderson submitted, the withdrawal of the certificate would not have the effect of restoring the situation to that previously as if it had not had any legal effect, and he referred to the decision in Ijoyah in that regard. He submitted that the effect of the withdrawal of the certificate was simply to enable an in-country claim to be considered, which focussed on removal from/ the requirement to leave the UK.

28. With regard to the third ground of challenge, Mr Anderson submitted that it was important to bear in mind that the Tribunal considering the applicant’s human rights claim was not considering an appeal against the deportation order itself or the decision to deport, but only the decision to refuse the human rights claim. The right of appeal was set out in section 82(1)(b) of the 2002 Act. The decision was based on the facts at the time the appeal was determined and not at the time the deportation order was made and did not have any effect on the legality of the deportation order itself. It was clear that succeeding in the Article 8 appeal did not restore the applicant’s ILR.

29. In response, Mr Cox maintained that the respondent’s collateral challenge argument was simply a disguised timeliness point which should have been taken up in the Acknowledgement of Service but had not been, and that it was too late for it to be taken up now. With regard to ground one, he emphasised that the amendment to section 79 of the 2002 Act prevented the invalidation of ILR when a deportation order was made, if an appeal could be brought under the statutory scheme. He submitted that there had been no answer to that from the respondent and that it had not been determined by the Upper Tribunal in Ijoyah as was clear from [97]. He submitted that that had to work for cases where section 94B was not invoked and where a human rights claim was outstanding. The purposes of section 79(4) would be undermined if ILR was invalidated and there was no appeal. Therefore, the three propositions still stood and had not been answered. With regard to ground two, Mr Cox maintained that the withdrawal of the s94B certificate showed that the certification was unlawfully made. As for the third ground, Mr Cox submitted that, in the absence of any legal authority on the question of the implication for a deportation order of allowing an appeal on Article 8 grounds, it must be the case that the basis of a deportation order would fall away if the human rights appeal was allowed, considering that the human rights refusal underpinned the deportation order. He submitted that the applicant would have to be put back into the position he would be in if there had been no unlawful refusal of his human rights claim. The SSHD would have to treat the human rights decision as having no legal effect and would have to treat the applicant as still having ILR.

Legal Framework
30. Section 3(5) of the Immigration Act 1971 (“1971 Act”) provides that a person who is not a British citizen is liable to deportation from the UK if the Secretary of State deems his deportation to be conducive to the public good.
31. Section 5 of the 1971 Act provides:
“(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”
The automatic deportation regime
32. Section 32 of the UK Borders Act 2007 (“the 2007 Act”) applies to foreign criminals as defined in subsections (1) to (3).
33. Section 32(5) provides: “The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)”.
34. Section 33 provides for various exceptions to the duty under s32(5).
35. Section 33(2) provides that “Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach (a) a person’s Convention rights.”
36. Section 33(7) provides that “The application of an exception - (a) does not prevent the making of a deportation order. “
37. Section 34(1) provides that the duty to make a deportation order in section 32(5) “requires a deportation order be made at a time chosen by the Secretary of State”.
38. Section 35 of the 2007 Act amended Part 5 of the 2002 Act, which governs rights of appeal, in particular section 79 of the 2002 Act.
Appeals under the 2002 Act
39. Section 82 of the 2002 Act confers a right of appeal to the First-tier Tribunal where the SSHD has decided to refuse a protection claim or a human rights claim.
40. A “human rights claim” is defined by section 113 as “a claim made by a person to the Secretary of State… that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998.”
41. Section 84 defines the grounds of appeal as follows:
“(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds—
(a) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
(b) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.”
42. Section 78 of the 2002 Act provides:
“(1) While a person's appeal under section 82(1) is pending he may not be—
(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section “pending” has the meaning given by section 104.
(3) Nothing in this section shall prevent any of the following while an appeal is pending— …
(b) the making of a deportation order in respect of the appellant (subject to section 79), or …
(4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.”
43. Section 79 provides:
“(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order—
(a) could be brought (ignoring any possibility of an appeal out of time with permission), or
(b) is pending.
(2) In this section “pending” has the meaning given by section 104.
(3) This section does not apply to a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007.
(4) But a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies”
44. Subsections (3) and (4) were added by the 2007 Act. The explanatory memorandum to the 2007 Act states:
“114. Subsection (2) disapplies the prohibition on making a deportation order while an appeal to the Tribunal against a decision to make an automatic deportation order is pending or could be brought. If a deportation order is made it invalidates any leave to enter or remain that the person has or is subsequently given while the order is in force (section 5(1) of the Immigration Act 1971). However, new subsection (4) of section 79 of the Nationality, Immigration and Asylum Act 2002, inserted by subsection (2), provides that a deportation order made under section 32 will not invalidate the deportee's leave to enter or remain while an in-country appeal against an immigration decision is pending.”
45. “Pending”, for the purpose of section 78 is defined by section 104 of the 2002 Act which provides:
“(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).”
Certification under section 94B of the 2002 Act
46. Section 94B of the 2002 Act empowered the Secretary of State to certify a claim where removal pending appeal would not be unlawful under section 6 of the Human Rights Act 1998, the effect of such a certificate being that the person could not bring or continue an appeal from within the UK.

Discussion

47. In this claim, the applicant challenges the grant of limited leave to remain on the basis that his ILR status prior to the deportation proceedings remained intact or at least was resurrected as a result of the withdrawal of the refusal decision in his human rights claim and the section 94B certificate in August 2018, or alternatively as a result of his successful appeal against the refusal of his human rights claim. The respondent’s case, however, is that the applicant’s ILR was invalidated as a result of the deportation order made against him on 20 June 2016, combined with the section 94B certificate, and that none of the further actions taken, or decisions made, subsequently undid the effect of the deportation order or restored his ILR.

48. The applicant’s challenge to the respondent’s position is premised upon what the respondent considers to be two collateral challenges: a challenge to the effect of the respondent’s decision of 9 August 2018 by which she withdrew the human rights refusal but did not revoke the deportation order; and a challenge to the section 94B certificate of 20 June 2016. The respondent asserts that these are not legitimate or permissible challenges and that the applicant is not entitled to make them.

49. Mr Cox submits that this is nothing more than an argument about delay, and about the timeliness of the applicant’s challenge, and submits that since that had not been raised previously, and since the claim had been admitted and permission had been granted, any issue as to timeliness could not now be raised. He argues, in any event, that the applicant is not seeking to challenge the lawfulness of the decisions of 2016 and 2018, but rather the consequences of those decisions, which was part and parcel of the argument relating to the applicant’s immigration status and that there is therefore no question of a collateral challenge.

50. I do not agree with Mr Cox on either point.

51. Firstly, I do not agree that the Tribunal is precluded from having regard to the timeliness of a challenge to the effect of the withdrawal of the certification and the human rights claim on 9 August 2018. The applicant’s claim was re-articulated in the amended grounds issued after permission was granted, with the effect that the re-formulated grounds made specific challenges to the lawfulness of the certification and to the historical conduct of the respondent on 9 August 2018, in failing to revoke the 20 June 2016 deportation order and failing to regard the deportation order as having no effect on the applicant’s ILR when the 20 June 2016 certified human rights claim was withdrawn. The challenges are expressed in terms of ‘propositions’ but are nevertheless challenges to decisions or omissions made by the respondent, despite Mr Cox seeking to describe them otherwise. Had the original grounds been expressed in the same terms as the re-formulated grounds, the respondent may well have raised an objection in the summary grounds of defence to those grounds being admitted as part of a claim made some five to seven years later. Likewise, had the judge granting permission been faced with the re-formulated grounds, she may well have decided not to admit the challenges on those grounds. There being no application made with proper reasons given for the failure to challenge the decisions at the relevant time, I do not agree that it would be appropriate for the matters to be relied upon now, several years later.

52. Secondly, and in any event, whether or not the collateral challenges and the issue of timeliness can be separated, I agree with the respondent that it is not open to the applicant to seek to make these challenges now in the way that the applicant seeks to do. Mr Cox, relying upon Majera, argues that the applicant is not seeking to challenge the lawfulness of the decisions of 2016 and 2018. He stressed that he was not suggesting that the deportation order issued in 2016 was a nullity or void ab initio and accepted that, there having been no challenge to the order, it must be regarded as continuing to have legal effect. He submitted rather that it was the consequences of those decisions, looking to the future, which had led to the current situation and which were therefore part and parcel of the principle challenge relating to the applicant’s immigration status and not a collateral challenge. However, I do not see how that can be viewed separately to a challenge to conduct which occurred several years ago. They are one and the same. Mr Cox also sought to persuade me that past events could be considered as part of the challenge to a more relevant decision, and ought not to be excluded as an impermissible collateral challenge, as seen in the case of Guled. However, I agree with Mr Anderson that the circumstances in this case are entirely different to that case, as indeed the Court made clear in Guled when distinguishing the circumstances from those in George. The Court observed in Guled, at [46] of the judgment, that the case before them involved a deportation order which was made in breach of public law. Just as that was not the situation in George, neither is it the case here.

53. In the circumstances it is not now open to the applicant to seek to challenge the lawfulness of the section 94B certificate or the lawfulness of the decision to withdraw the applicant’s human rights claim without revoking the 2016 deportation order, which, despite Mr Cox’s assertions to the contrary, is what he is effectively seeking to do. Those are impermissible collateral challenges which the applicant is not entitled to make. On that basis alone the first two grounds must fail.

54. However, and in any event, I do not consider there to be any merit in the substance of the grounds.

55. In considering those grounds, it is relevant to have regard to the statutory framework. That framework is set out above, as are the submissions which were made in relation to that framework. Taking the various statutory provisions together, the following relevant principles can be extracted.

56. The starting point is that the making of a deportation order cancels any leave that a person may have. That is made clear in section 5(1) of the Immigration Act 1971. However, a deportation order made in accordance with section 32(5) of the UK Borders Act 2007 does not invalidate leave to enter or remain if, and for so long as, section 78 applies, i.e. if there is a pending appeal under section 82(1), which has been brought whilst the appellant is in the UK. In such a case the deportation order would run alongside the appellant’s leave until the appeal is finally (unsuccessfully) determined and removal can take place. Whilst a deportation order cannot be made in respect of a person who has a pending appeal which can be brought or continued from within the UK, that does not apply to a deportation order made in accordance with section 32(5) of the UK Borders Act 2007 (section 79(3)), but such a person cannot be removed from the UK or required to leave the UK whilst an appeal is pending (section 78(1)). Further, under the UK Borders Act 2007, the deportation of a foreign criminal is deemed to be conducive to the public good (s32(4)) and the respondent is required to make a deportation order in respect of that foreign criminal (s32(5)). However pursuant to section 33(1)(a) and 33(7), where Exception 1 applies and removal would therefore be in breach of the person’s human rights under the ECHR, the respondent is not obligated to make a deportation order but nevertheless may do so, albeit the foreign criminal’s deportation would still be conducive to the public good.

57. Applying that to the applicant’s circumstances, that means that if the applicant’s human rights claim had been refused with an in country right of appeal, he could not have been removed from the UK whilst his appeal was pending and his ILR would not have been invalidated by the making of a deportation order pending the outcome of that appeal. However, since his human rights claim had been certified under section 94B so that he did not have a right of appeal exercisable from inside the UK, the protection in section 79(4) did not apply and the respondent was permitted, under section 78(3)(b) and section 79(3) to make a deportation order under section 32(5), as she did, which in turn invalidated his ILR. It would have been open to the respondent, as Mr Cox argued, to have revoked the deportation order at that point and then made a fresh deportation order once the applicant’s human rights claim had been reconsidered and refused again (but not certified), However she did not do so and she made it clear in her letter of 9 August 2018 that the deportation order remained valid and would only be revoked if the applicant successfully appealed the decision refusing his human rights claim.

58. The applicant’s challenge is to the fact that the respondent followed the course that she did. The applicant argues that, having withdrawn the section 94B certificate and the decision in his human rights claim, the respondent ought at that point to have revoked the deportation decision or, if not, ought to have reinstated his ILR pending the outcome of the reconsideration of his human rights claim and pending his appeal against the refusal of his claim, restoring him to the position he would have been in if the section 94B certificate had not been made. Alternatively, that the applicant’s ILR automatically revived once the section 94B certificate was withdrawn.

59. I shall address each ground of challenge in turn. In so doing, it is appropriate at this point to refer to the judgment of Upper Tribunal Judge Perkins issued on 23 December 2024 (JR-2022-LON-001034) and the Order of the Rt Hon Lady Justice Andrews issued on 10 June 2025 in which she refused permission for the applicant to appeal to the Court of Appeal in the case of Ijoyah (CA-2025-000096). I have referred to both decisions as they have been produced before me and are relied upon by Mr Anderson. An adjournment was previously granted for the Upper Tribunal’s decision in Ijoyah to be considered and adduced and I see no reason for the decisions not to be considered, albeit observing that Judge Perkins’ decision is one that has not been formally reported (although, as a judicial review decision, it can still be considered). Neither decision is binding on me, but neither do they carry no weight. In his skeleton argument, Mr Cox accepts, at [51], that I should follow the decision of Upper Tribunal Judge Perkins as a matter of judicial comity unless convinced that is wrong, or unless there is a powerful reason for not doing so, but submits that I should be convinced that the decision is wrong, in particular in regard to the matters raised in the first ground. As I have already said, the decision of Upper Tribunal Judge Perkins is not one that has been formally reported. However I have considered the decision carefully and see no reason not to have regard to my colleague’s decision on similar (and some identical) matters. I find myself entirely in agreement with Judge Perkins’ conclusions on the matters which apply also to the applicant’s case before me. With regard to the Order of the Court of Appeal refusing permission, I take into account the fact that it is a decision on a permission application and is therefore based only upon the arguments advanced in the Court of Appeal. However, again, I find it relevant to the decision I must make in this applicant’s case. I am of course aware, as Mr Cox submitted, that there are arguments made before me which may not have been advanced before Judge Perkins or before the Court of Appeal, and I take that into account. I have therefore been careful to accord the appropriate weight to both decisions.

60. I turn to the applicant’s first ground: “the withdrawal of the 2016 refusal decision in the applicant’s human rights claim imposed on the Secretary of State a legal obligation to revoke the deportation order and to regard that order as having had no effect on the applicant’s ILR”, which Mr Anderson states equates with the third issue in Mr Cox’s skeleton argument. That issue is said by Mr Cox to depend upon two propositions.

61. The first proposition is that, where a human rights claim has been made, the SSHD cannot lawfully make a deportation order without determining that human rights claim. I agree with Mr Anderson that that is simply not a matter to determine in this case, since the fact is that the respondent did determine the applicant’s human rights claim when making the deportation order, by refusing and certifying it in the decision of 20 June 2016. That is sufficient in itself to dispose of the applicant’s argument. Such a view is indeed supported by the Order made by the Rt Hon Lady Justice Andrews in refusing permission in the case of Ijoyah, at [7] of the Order, where she found that “…the SSHD’s agreement to withdraw the decision to remove A, which had certified the Art 8 claim as clearly unfounded under s.94B, and to reconsider the matter, meant that the question whether there was an exception once again became a live issue, but that did not mean that the effect of the deportation order was altered retrospectively …”

62. However, and in any event, I do not agree with the argument made on behalf of the applicant. In so far as Mr Cox submitted that to make a deportation order without considering and determining a human rights claim would be contrary to the ‘Tameside duty’, as there would be a failure to consider all relevant submissions made, there is no question in the applicant’s case that the deportation was made without considering his circumstances and all relevant submissions. There was clearly a full consideration of his claim leading to the decision of 20 June 2016. Whilst that decision was withdrawn, there was, and is, no suggestion that that was due to any legal defect in the human rights consideration to the extent that the assessment and decision was to be considered as null and void.

63. Mr Cox asserts further that it would be contrary to Parliament’s scheme of human rights appeal rights and related protections if a deportation order could be made without first determining a pending human rights claim, given that section 79 prohibits a deportation order from being made whilst an appeal is pending under section 82(1). He argued that that prohibition had to be considered as extended to include the consideration of the claim itself and not only an appeal against its refusal. However, whether or not that wider interpretation is accepted, it does not assist the applicant, since section 79(3) makes clear that that provision does not apply to the automatic deportation regime.

64. Mr Cox seeks to argue that the respondent’s interpretation of section 33(7) is wrong, and that whilst the respondent has the power to make a deportation order even where removal would breach a person’s ECHR rights, that power may not be exercised to make a deportation order until the respondent has first decided whether removal would in fact breach the person’s human rights, which would then give rise to a right of appeal and the protection of sections 78 and 79. I do not agree. That is a circular argument which, in my view, does not properly reflect the intention of section 33(7). Section 33(7) states clearly that the application of an exception to deportation does not prevent the making of a deportation order. As Mr Anderson submitted, if Parliament had intended section 33(7) to mean that there had first to be a consideration of whether exception 1 was met before making a deportation order, such a requirement would have been imposed. Accordingly, whilst section 32 requires the respondent to exercise her power to make a deportation order, she is not obliged to do so in the event that an exception to deportation (exception 1) applies, although she has the power to do so.

65. Mr Cox’s argument, furthermore, fails properly to address the fact that the deportation order and the human rights claim are separate considerations/entities/decisions, in automatic deportation cases, unlike the previous conducive deportation regime where a deportation order could not be made until the appeals process was completed. The automatic deportation regime involves two stages: stage one is the decision to deport against which there is no right of appeal. That is triggered by the applicant’s deportation being considered to be ‘conducive to the public good’ owing to his criminal offending and, in accordance with sections 32(4) and (5) of the 2007 Act, the SSHD then has a duty to make a deportation order. Stage two is the decision on the human rights claim which gives rise to the right of appeal (either in country, or out of country in a certified case). There are therefore two different entities running in parallel. The only right of appeal is against the refusal of the human rights claim. There is no right of appeal against the deportation order itself. Unlike the deportation order and deportation decision, the applicant’s immigration status is not the focus of the appeal in a human rights appeal. Rather the focus of that appeal, when considering whether an exception to deportation arises, is on removal. That is clear from the wording of section 33(2) of the 2007 Act and section 82(1) and 84 of the 2002 Act.

66. Mr Cox sought to argue that the making of the deportation order was nevertheless imported into the assessment of the human rights claim and the human rights appeal by way of the specific wording of the definition of a human rights claim in section 113 of the NIAA 2002, which included the ‘requirement to leave’ the UK. However, I do not agree that the respective references to ‘removal’ and ‘requirement to leave’ in the definition of a human rights claim gives rise to any such distinction. The focus is solely upon removal from the UK. Clearly, should the position have been that the respondent was seeking to remove the applicant pursuant to the deportation order, there would be an obligation on the respondent to consider the applicant’s human rights claim first before removal could take place. However, that is not the issue here.

67. In the circumstances, and as Judge Perkins concluded in Ijoyah, in the case of an automatic deportation the existence of an unresolved human rights claim does not prevent the making of a deportation order and it does not stop a deportation order extinguishing leave. The challenge to that conclusion was upheld in clear terms by the Court of Appeal when refusing permission in the Order of 10 June 2025, at [6]: “The existence of a statutory exception, even when established, does not remove the power to make the deportation order. It simply removes the statutory obligation to do so… it does not follow from the fact that removal would breach the UK’s international obligations that making a deportation order (with the consequence of invalidating existing leave) would do so. A decision by the SSHD resolving (subject to in-country appeal) any dispute about the application of an exception is not a condition precedent to the exercise of the power to make a deportation order.” In the circumstances, the SSHD was lawfully entitled to make a deportation order without determining the applicant’s human rights claim.

68. The applicant’s second proposition is that where after making a deportation order, the SSHD withdraws her refusal of a human rights claim, she must revoke that deportation order. The respondent’s decision of 9 August 2018 withdrawing the decision of 20 June 2016 made clear that the original deportation order signed on 20 June 2016 still remained valid, stating in the final paragraph “Please note the original deportation order signed on 20 June 2016 still remains valid and would only be revoked should you subsequently successfully appeal this decision.” As already made clear the applicant has had several years to challenge that decision and has not done so. He is precluded from seeking to do so at this later stage.

69. In any event, such a proposition suffers from the same failure, as discussed above, to engage with the fact that the deportation order and the human rights claim are separate considerations/decisions. I do not intend to repeat what has already been discussed, save to reiterate that the deportation order continued as a separate entity to the human rights claim owing to the separate regimes, and pursuant to section 33(7) of the 2007 Act.

70. Furthermore, I agree with Mr Anderson that there is no equivalence between the situation where a claim had been considered and the decision subsequently withdrawn, and a situation where a claim has not been considered at all. Mr Cox submits that the situation would be different if, rather than the human rights claim being withdrawn, the respondent had simply issued a supplementary decision, so that there would not have been any gap. However, I do not consider that any difference arises. As Mr Anderson submits, there could be any number of reasons why a decision is withdrawn and re-made, such as further evidence or a change in circumstances, or a change in law or policy, and it does not follow that the withdrawal meant that the original decision was void or invalid. This is not a case where the human rights refusal was quashed, and the applicant does not suggest that it was. The new human rights refusal was issued on the same day that the certified decision was withdrawn. There is nothing in the statutory framework to support the applicant’s proposition and neither has he cited any supporting authority. Rather, the Order made by Andrews LJ in Ijoyah, at [8], supports the respondent’s position, that the withdrawal of the human rights refusal did not affect the validity of the deportation order or its impact upon the applicant’s immigration status.

71. As Mr Anderson submitted, even if propositions one and two were made out, the applicant could not make out a third proposition, namely that if the SSHD withdrew the human rights refusal and revoked the deportation order, the applicant’s ILR had to be treated as reviving or as never having been invalidated. Such a proposition was considered in the case of George and rejected. The question for the Supreme Court in George, as stated at [1], was:

“If a criminal who previously had leave to remain in this country is liable to deportation because of his offences, but cannot actually be deported because to remove him would infringe his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, with the result that the deportation order is revoked, what is the status of his previous leave to remain? It is common ground that the making of a deportation order renders his leave to remain invalid. The question in this appeal is whether, if the deportation order is revoked, his leave revives or whether the Secretary of State is at that stage free to consider afresh what leave to grant to him”

72. The Court answered the question at [29] to [32], stating at [31]:

“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. … 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.”

and at [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.”

73. It was Mr Cox’s submission that the circumstances in George did not apply to the applicant because that case involved an appeal against a decision to revoke the deportation order, whereas in the applicant’s case the appeal was in respect of the initial deportation decision. There was no explanation, however, as to how that changed the situation. I cannot see how there could be any such explanation, and I do not agree that the applicant’s circumstances can be distinguished. The principles in George clearly apply. As Mr Anderson submitted, the situation may be different if the making of the deportation order issued against the applicant had been egregious, as in Guled, but that was not the case here.

74. In the circumstances the applicant has failed to show that the first ground is made out.

75. The applicant’s second ground relates to the section 94B certificate and asserts that the withdrawal of the certificate imposed upon the Secretary of State a legal obligation to revoke the deportation order and to regard that order as having had no effect on his ILR. The first part of the second ground is an assertion that the section 94B certificate was unlawfully made. It is submitted that the fact that the only basis for withdrawing the certificate was the judgment in Kiarie & Byndloss is sufficient to demonstrate that the withdrawal was not a result of any assessment of facts but was purely one of legality. Reliance is placed on the lack of information or additional reasons provided for the certificate being withdrawn, in respondent’s casework notes in that regard, at pages 241 to 246 of the judicial review bundle, as well as in the 9 August 2018 withdrawal letter and the respondent’s Acknowledgement of Service.

76. However I do not consider that any of those assists the applicant. Mr Anderson made two particularly relevant points in that regard in his submission that it was going too far to say that it could be inferred that a certificate was withdrawn because it was invalid or unlawful. Firstly, as made clear in the judgment in Nixon at [75], when considering the impact of Kiarie & Byndloss: (i) where the Secretary of State rejected a human rights claim of a proposed deportee, an out-of-country appeal would not always be ineffective in protecting the human rights involved, but that depended upon the facts and circumstances of the particular case; (ii) where the Secretary of State precluded an in-country appeal, by certifying a human rights claim under section 94B, that was not necessarily unlawful; and (iv) it would be a highly material consideration if the deportation was lawful or apparently lawful since, even if a human rights claim that a deportation order should not be made or maintained has been unlawfully certified, it would still be the case that the individual was deported on the basis of a deportation order that was not bad on its face. Clearly, therefore, it is not the case that Kiairie & Byndloss found all section 94B certificates to be unlawful, without more, but rather the lawfulness of a certificate was to be assessed on the basis of a fact sensitive enquiry. Those principles are relevant to the current case and I reject Mr Cox’s suggestion that Nixon was sufficiently distinguishable on its facts and application so as to preclude them in the applicant’s case.

77. Secondly, in the applicant’s particular case there were further circumstances which may well have been relevant to the question of certification. Whilst the respondent’s case notes and the 9 August 2018 letter did not provide any specific details or reasons for withdrawal of the certificate, they did not confirm that the reason was due to an illegality or invalidity issue, but rather suggested that it was the outcome of the review undertaken in accordance with the guidance in Kiairie & Byndloss that led to the certificate being withdrawn. It is apparent that the review in the applicant’s case involved a consideration of various matters, including the representations from the applicant’s solicitors which, as Mr Anderson observed, involved a claim for asylum.

78. In the circumstances there is nothing in the materials before me to suggest that the section 94B certificate was withdrawn because it was unlawfully made. Certainly there is nothing to suggest that it was unlawful ab initio and I do not consider it appropriate to embark upon a lengthy analysis of the certificate at this stage, some seven years after it was made, and when it had never been challenged by the applicant. I have regard to the decision in Majero where the Supreme Court found, at [29], that:

“… if an unlawful administrative act or decision is not challenged before a court of competent jurisdiction, or if permission to bring an application for judicial review is refused, the act or decision will remain in effect.”

and at [31], that

“Even where a court has decided that an act or decision was legally defective, that does not necessarily imply that it must be held to have had no legal effect.”

79. In any event, for the reasons already given in relation to ground one, I reject the assertion that the withdrawal of the certificate undid the effect of the deportation order. I agree with Mr Anderson that the certificate was not a pre-condition to making the deportation order, and its withdrawal did not invalidate the deportation order. For all these reasons, therefore, ground two is not made out.

80. The third ground asserts that the decision of the Tribunal in March 2022 allowing the applicant’s appeal against the refusal of his human rights claim meant that the deportation order was to be regarded as not affecting his ILR. In making that argument, Mr Cox submitted that it followed from section 84(2) of the NIAA 2002 that where the Tribunal had allowed the appeal under section 82(1)(b) on human rights grounds, it had determined that the decision to refuse the applicant’s human rights claim was unlawful under the Human Rights Act 1988. He relied upon the statutory scheme in sections 82 and 84, and the definition of a ‘human rights claim’ in section 113 of the NIAA 2002, in asserting that the focus of the appeal before the Tribunal was on the decision requiring the applicant to leave the UK, which was, in effect, the deportation order. He argued that, as such, and given that the deportation order was founded upon the applicant’s human rights claim, the Tribunal’s decision to allow the appeal meant that the SSHD’s entire decision was undone. The effect of the Tribunal’s decision therefore, he argued, was that the deportation order was undone and the invalidating effect of the deportation order for the applicant’s ILR was undone for the future. Mr Cox relied upon the principles of finality of judicial decision-making in Al-Siri in that regard and submitted that the circumstances in Ijoyah were different as the applicant had not succeeded by way of an appeal in that case and there was therefore no binding holding made by a Tribunal that the human rights refusal had been unlawful.

81. Whilst Mr Cox makes an interesting argument, I do not accept that it is correct. As Mr Anderson submitted, the ‘decision’ which was said in the Tribunal to be unlawful was not the deportation order or the decision to deport the applicant, but rather the decision that removing him or requiring him to leave the UK would be unlawful, which, as discussed above, were separate and independent decisions. The decision to remove the applicant from the UK, or requiring him to leave the UK, was a decision which was assessed at the time of the appeal before the Tribunal, on the applicant’s circumstances at that time and not at the time the deportation order was made. As Mr Anderson submitted, the Tribunal was not reviewing the legality of the SSHD’s decision when it was taken, and was not considering whether the deportation order had caused the applicant’s ILR to be invalidated. The Tribunal was simply concerned with the question of removal/ the requirement to leave the UK on the basis of the applicant’s circumstances at the time of the hearing. The principles of finality and binding judicial decision-making are therefore of no import and do not materially assist the applicant’s case, and neither is the applicant’s case assisted by the arguments based upon good administration and an effective remedy. I therefore find no merit in this final ground of appeal.

82. Drawing together all of these conclusions, the applicant’s grounds are therefore answered as follows:

(5) Where, after making a deportation order under the automatic deportation order provisions in section 32(5) of the UK Borders Act 2007, the SSHD withdraws her refusal of a human rights claim (the Stage 2 deportation decision), the deportation order continues to have effect and there is no requirement on the SSHD to revoke that deportation order, although she has the power to do so.

(6) Where, after making a deportation order under the automatic deportation order provisions in section 32(5) of the UK Borders Act 2007, the SSHD withdraws the s94B certification of the human rights claim, the deportation order continues to have effect and there is no requirement on the SSHD to revoke that deportation order, although she has the power to do so. The SSHD may then make a new, non-certified, decision refusing the human rights claim without the deportation order being affected.

(7) In neither case does the withdrawal of the decision have the effect of reinstating or resurrecting any leave to enter or remain which was invalidated by the deportation order.

(8) A decision allowing an appellant’s appeal against the refusal of a human rights claim (a State 2 deportation decision) does not impose any legal obligation on the SSHD to regard the subsequently revoked deportation order as having no continuing effect on the appellant’s previously held leave to enter or remain.

83. For all of these reasons I consider that the applicant’s grounds have not been made out. There was nothing irrational, unreasonable or unlawful in the respondent’s decision to grant the applicant limited leave following his successful human rights appeal, and in the respondent’s treatment of the applicant’s previous grant of ILR as having been invalidated by the deportation order made on 20 June 2016.

Decision

84. The applicant’s application for judicial review is accordingly refused.