Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005742

First-tier Tribunal No: HU/63096/2023; LH/02712/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN
UPPER TRIBUNAL JUDGE PINDER

Between

KARIM SID
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R McKee, Counsel instructed by David Tang & Co Solicitors.
For the Respondent: Ms A Ahmed, Senior Presenting Officer.

Heard at Field House on 14 April 2025

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Raymond (‘the Judge’) dismissing the Appellant’s human rights claim and promulgated on 5th November 2024.
2. On 26th November 2021, the Appellant lodged an application with the Respondent for revocation of the Deportation Order made and signed against him on 9th January 2013. The Respondent refused to issue such revocation and set out her reasons in her decision to refuse the Appellant’s human rights claim dated 23rd October 2023. It is against that decision that the Appellant initially appealed to the First-tier Tribunal (‘the FtT’).
Factual background
3. The Appellant is a citizen of Algeria, who was born in 1975 and who claims to have entered the UK in 2001. He has never held any lawful leave to enter or remain in the UK. The Appellant’s immigration and criminal history is not in dispute and in so far as is relevant to this appeal, we summarise this immediately below.
4. Following his entry into the UK, the Appellant claimed asylum on 22nd November 2001. This claim was refused by the Respondent on 28th January 2002. The Appellant pursued an appeal against this decision and his appeal was dismissed on 23rd July 2002. The Appellant had exhausted all of his statutory rights of appeal on 8th August 2002. The Respondent listed the Appellant on 2nd February 2003 as a person who had absconded after the Appellant failed to report on 22nd January 2003.
5. On 19th October 2009, the Appellant was convicted of two counts of possessing false/improperly obtained/another’s identity document at Bournemouth Crown Court. The Appellant was sentenced on the same day to six months’ imprisonment on both counts to run concurrently. The Court also recommended that the Appellant be deported from the UK. The Appellant did not seek to appeal against either his conviction or his sentence.
6. On 7th December 2009, the Appellant was served with a notice confirming his liability for deportation and on 4th January 2010, the Respondent issued the Appellant with a decision to make a Deportation Order. This was faxed to HMP Guys Marsh, where the Appellant was being held in custody at the time. The decision raised the following:
• The Respondent has considered the Court’s recommendation and has concluded that deportation would be appropriate in the Appellant’s case;
• The Appellant is liable to deportation by virtue of s.3(6) of the Immigration Act 1971 (‘the 1971 Act’);
• The Respondent has decided to make such an order against the Appellant under s.5(1) of the 1971 Act;
• The order requires the Appellant to leave the United Kingdom and prohibits him from re-entering while the order is in force.
7. The Appellant did not seemingly lodge an appeal against the decision of 4th January 2010, despite this decision carrying a statutory right of appeal. Thereafter, the Appellant’s then-legal representatives wrote to the Respondent requesting, amongst other things, that his case be considered as a ‘Legacy’ application. The Appellant was granted bail on 3rd February 2010 with reporting conditions. On 10th February 2010, the Respondent noted that the Appellant had failed to report again and the Respondent took several steps to warn the Appellant of his breach of conditions.
8. An exchange of correspondence between the Appellant’s legal representative and the Respondent ensued and the Respondent issued a further decision on 20th February 2012, confirming that the Respondent had concluded that it was appropriate to pursue the Crown Court’s recommendation for the Appellant’s deportation. This decision also confirmed that the Appellant held a statutory right of appeal to the FtT against that decision, which the Appellant duly exercised.
9. As part of the Appellant’s appeal against the Respondent’s decision of 20th February 2012, the FtT also considered the Respondent’s earlier decision of 4th January 2010 and noted that it was an appeal against the decisions to deport him from the United Kingdom under s.3(5) and (6) of the Immigration Act 1971 (‘the 1971 Act’). The FtT subsequently dismissed the appeal on 11th May 2012. The Appellant was unsuccessful in securing permission to appeal against the FtT’s decision and he became ‘appeal rights exhausted’ on 4th July 2012.
10. The Respondent signed the Deportation Order against the Appellant on 9th January 2013. This Order was set out in the following terms:
“Whereas KARIM SID is a foreign criminal as defined by section 32(1) of the UK Borders Act 2007:

The removal of KARIM SID is, under section 32(4) of that Act, conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971:

The Secretary of State must make a deportation order in respect of a foreign criminal under section 32(5) of the UK Borders Act 2007 (subject to section 33).

Therefore in pursuance of Section 5(1) of the Immigration Act 1971, once any Right of Appeal, that maybe exercised from within the United Kingdom under section 82(1) of the Nationality, Immigration and Asylum Act 2002 is exhausted, and said appeal is dismissed, or if KARIM SID does not have a right of appeal that may be exercised from within the United Kingdom, the Secretary of State, by this order, requires the said KARIM SID to leave and prohibits him from entering the United Kingdom so long as this order is in force.”
11. After his appeal was dismissed in 2012, the Appellant next contacted the Respondent on 26th November 2021 when he submitted an application for leave to remain under Appendix Private Life to the Immigration Rules. In this application, the Appellant addressed the Deportation Order issued against him and made representations that requiring him to leave the UK would be in breach of his private life under Article 8 ECHR. As summarised above, this application was refused by the Respondent on 23rd October 2023, who confirmed her decision to maintain the Deportation Order of 9th January 2013 (‘the Deportation Order’) and to refuse the Appellant’s human rights claim.
The decision of the First-tier Tribunal Judge
12. At [8], the Judge agreed with the Appellant that the Deportation Order itself was “defective on its face” because it described the Appellant as a ‘foreign criminal’ pursuant to s.32(1) of the UK Borders Act 2007 (‘the 2007 Act’). Having considered the components of this definition at [3], namely not being a British Citizen, convicted in the UK of an offence, receipt of a custodial sentence of 12 months or more, and that none of the exceptions in s.33 apply, the Judge rightly concluded that the Appellant did not come within the definition as his sentence of imprisonment was of less than 12 months. The Judge noted that the Deportation Order did not otherwise refer to the Crown Court’s recommended deportation for the Appellant.
13. The Judge identified two issues for him to determine at [18]-[19]. First, given that the refusal of the application to revoke is mistakenly premised upon the Appellant being a foreign criminal, does this render null and void the Deportation Order against him? Second, if the answer to the first question is yes, should the Appellant’s appeal succeed on the basis that there is no valid Deportation Order and therefore no Order to be revoked and no basis to refuse the Appellant’s human rights claim ?
14. The appeal hearing in the FtT was conducted on submissions-only with the Appellant not giving evidence, as recorded by the Judge at [71].
15. On the first issue, the Judge reached the following conclusions at [74]-[80]:
(a) The Deportation Order was merely an administrative culmination of the decision of 4th January 2010 to make a deportation order – [74];
(b) The discretion of the Respondent, under the 1971 Act, to make that anterior decision in the present case, i.e. the 4th January 2010 decision, has never been questioned – [75];
(c) As part of his earlier appeal in 2012, the FtT considered the Respondent’s decision of 4th January 2010 and whether this was a breach of the Appellant’s Article 8 rights, finding against him – [76];
(d) Contrary to the submissions made before him, the Judge considered that the Devaseelan principles applied to the 2012 FtT appeal decision – [77];
(e) Binding authorities on the applicable legal framework reminded the Judge that there was no right of appeal to the FtT against a decision to make a deportation order and the guidance contained in Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 00350 (IAC) was relevant – [78]-79];
(f) Whilst the Deportation Order and the Respondent’s most recent decision of 23rd October 2023 erroneously referred to the Appellant as a ‘foreign criminal’, this has no effect upon the validity and substance of the decision to deport the Appellant of 4th January 2010 – [80].
16. The Judge noted at [82]-[83] that the Appellant had not been misled, or suffered any prejudice, from the mistakes contained in the Deportation Order and the 23rd October 2023 decision: he had been aware throughout of the decision of 4th January 2010. The Judge also emphasised that the Appellant had absconded between 2003 and 2009 and then again between 2013 and 2021.
17. The Judge reiterated at [86] the discretion exercised in favour of the Appellant’s deportation by the Respondent on 4th January 2010, from which flowed the 2013 Deportation Order and the 23rd October 2023 decision. The Judge cited at [87] and [89] the Supreme Court’s judgment in R (on the application of Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46 for the proposition that an unlawful act or decision cannot be considered void in the absence of a court order to that effect. In addition, that even where a court has decided that an act or decision is legally defective, that does not necessarily imply that it must be held to have had no legal effect. Thus, at [90], the Judge did not accept that the Deportation Order was null and void.
18. Thereafter, the Judge conducted an assessment of the Appellant’s human rights claim under Article 8 taking forward his earlier conclusions on the Appellant’s arguments that the Deportation Order was null and void. The Judge did so at [91]-[111] assessing the elements claimed by the Appellant to form his private life established in the UK. At [112], the Judge concluded that the Appellant had not established that the Respondent’s decision would result in a disproportionate interference with his private life in the UK. At [113]-[114], the Judge conducted the assessment required under s.117B of the 2002 Act.
19. Accordingly, the Judge dismissed the Appellant’s appeal on human rights grounds.
The Appellant’s appeal to the Upper Tribunal
20. The Appellant was granted permission to appeal by the FtT against the Judge’s decision to pursue two grounds of appeal, which the FtT identified as follows:
(i) It was arguable that the Judge erred in law by finding that the deportation order made in respect of the Appellant was effective; and
(ii) The Judge arguably erred in his assessment of the Appellant’s private life claim.
21. In response, the Respondent did not file and serve a Rule 24 reply, but did rely on a skeleton argument dated 14th April 2025 defending the Judge’s decision. The Appellant also supplemented his grounds of appeal with a short position statement dated 3rd April 2025.
22. At the hearing, both parties’ advocates made further oral submissions on each of the grounds of appeal pursued. We have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out our analysis and conclusions. At the end of the hearing, we reserved our decision and provide this below with our reasons.
Relevant legal framework
23. Since the relevant decisions and the Deportation Order issued to the Appellant cover a considerable number of years, it is necessary for us to briefly outline the different statutory provisions that apply. We do so only in so far as these are directly relevant to the decisions and issues that we have to consider in this appeal.
24. At the time of the Appellant’s criminal conviction in 2009 and the Respondent’s decision of 4th January 2010, the ‘automatic deportation’ procedures provided for in the 2007 Act were already in force but did not apply to the Appellant. This was because, as we have briefly considered above in the context of the definition at the time of a ‘foreign criminal’, the Appellant was not sentenced to a period of imprisonment of 12 months or more. Section 32 of the 2007 Act provided as follows:
32 Automatic deportation
(1) In this section “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that—
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.
25. It is also clear from the above section that the effect of s.32 is to provide a mechanism for classifying the deportation of those who come within the definition of ‘foreign criminal’ as “conducive to the public good” for the purposes of s.3(5)(a) of the 1971 Act. Section 32 does not otherwise replace the power of the Respondent, already held under s.3(5) of the 1971 Act, to deem a person’s deportation to be conducive to the public good or to deport under s.3(6).
26. Section 3(5) of the 1971 Act provides as follows:
3 General provisions for regulation and control.

(…)
(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; or
(b) another person to whose family he belongs is or has been ordered to be deported.
27. Section 3(6) of the 1971 Act also provides the following:
(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.
28. In light of the above and the Crown Court’s recommendation for the Appellant to be deported, whether the Appellant is a person who should be liable to deportation on the basis that his deportation was conducive to the public good fell to be considered under s.3(5) and/or s.3(6) of the 1971 Act.
29. The power to make a deportation order against the Appellant resides in s.5 of the 1971 Act. Section 5(1) provides the following and none of the other provisions of s.5 have application:
5 Procedure for, and further provisions as to, deportation.

(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.
30. At the time of the Respondent’s 4th January 2010 and 20th February 2012 decisions, the Appellant held a statutory right of appeal to the FtT against those decisions pursuant to s.82(2)(j) of the 2002 Act. This section provided as follows:
82 Right of appeal: general

(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.

(2) In this Part “immigration decision” means—
(…)
(j) a decision to make a deportation order under section 5(1) of that Act (…)
31. Deportation Orders signed by the Respondent pursuant to a decision to make such an order were not, and continue not to be, included in s.82 of the 2002 Act.
32. Following the coming into force of s.15 of the UK Borders Act 2014 on 20th October 2014, s.82 of the 2002 Act was amended so as to remove the rights of appeal held against a number of decisions, including decisions to make a deportation order previously included under s.82(2)(j) and decisions to refuse to revoke a deportation order, which were previously included under s.82(2)(k).
33. The only right of appeal held by the Appellant at the time of the Respondent’s decision of 23rd October 2023 was against the Respondent’s decision to refuse a human rights claim. Since 20th October 2014, s.82 of the 2002 Act stipulates the following:
82 Right of appeal to the Tribunal

(1) A person (“P”) may appeal to the Tribunal where—
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P's protection status.
Analysis and conclusions
The Appellant’s first ground of appeal – the Deportation Order of 2013
34. As the opening paragraph to the Appellant’s grounds of appeal confirms, the main argument pursued before us by the Appellant was that the Deportation Order was “void and of null effect”, thus rendering it unlawful for the Appellant to be deported or removed, and that the Judge has materially erred in law in finding otherwise. For reasons that we have set out in more detail further below, Mr McKee on behalf of the Appellant did distance himself in oral submissions from the terms “void and null” and confirmed a preference for ‘invalid’ or ‘unlawful’. We do not understand there to be any real distinction in his use of these different terms, particularly in the context of the Appellant’s specific arguments. Mr McKee effectively seeks to argue that the Deportation Order has no legal effect as it contains legal errors and the Judge materially erred in concluding otherwise.
35. Both parties were agreed that the Deportation Order erroneously refers to the Appellant as a foreign criminal and incorrectly invokes s.32(1) and s.32(4) of the 2007 Act. The Order does however invoke the power to make a deportation order under s.5(1) of the 1971 Act. The Appellant has not addressed this in any way. This is particularly relevant because this is the underlying power, together with s.3(5) and s.3(6) of the same Act, which the Respondent exercised when issuing her decision of 4th January 2010 - the decision to make a deportation order. This decision was never successfully challenged by the Appellant, and it is this decision that led to the signing of the Deportation Order in 2013, by which time the Appellant had exhausted his appeal rights.
36. It is appropriate to record that the parties had not included a copy of the Respondent’s 4th January 2010 decision in the appeal bundle for the purposes of these proceedings. On the morning of the hearing, we asked Ms Ahmed if she would retrieve a copy of this decision, which she duly did. It is a decision that the Appellant was fully aware of and that was also the subject of the Appellant’s appeal in 2012. A copy should therefore have been included in the appeal bundle and should have been addressed in the Appellant’s pleadings.
37. As is clear from our summary above at para 6, the Respondent’s decision of 4th January 2010 very clearly confirmed that the Respondent had considered the Crown Court’s recommendation and had concluded that deportation would be appropriate in the Appellant’s case. The Respondent continued in her decision that she had deemed the Appellant liable to deportation action by virtue of s.3(6) of the 1971 Act and had thus decided to make such an order again him under s.5(1) of the same Act.
38. Whether s.32(5) of the 2007 Act obligates the Respondent to make a deportation order in respect of a foreign criminal does not obviate or otherwise replace the discretion available to the Respondent to make such an order in instances when, as was the case here, the deportation of the Appellant was deemed to be conducive to the public good following an assessment and consideration of the Crown Court’s recommendation pursuant to s.3(5) and (6) of the 1971 Act. The Respondent clearly exercised that discretion and confirmed so in her decision of 4th January 2010 and again reviewed this in her decision of 20th February 2012, where she concluded again that it was appropriate to deport the Appellant to Algeria.
39. At para 3 of the Appellant’s grounds, Mr McKee acknowledged that the Deportation Order does state that the removal of the Appellant is conducive to the public good “for the purposes of” section 3(5)(a) of the 1971 Act. Mr McKee argued however that the removal of the Appellant is nevertheless “under section 32(4)”. Further that there was no mention in the Order of the recommendation of the Judge who passed sentence upon the Appellant in 2009. As we have considered above, s.32(4) does not confer a separate power to order or make arrangements for a person’s deportation from the UK. This remains embedded in the 1971 Act.
40. Neither do we consider it relevant whether or not the Crown Court recommendation is expressly referred to in the Order, since this was considered in the underlying decision to make a deportation order on 4th January 2010. No authority has been placed before us to support the Appellant’s submission to the contrary.
41. At para 5 of the grounds and also orally before us, Mr McKee emphasised that it cannot be ignored that the Deportation Order contains a mistake with regards to the Appellant coming within the definition of a ‘foreign criminal’. The Appellant does not otherwise dispute that the correct discretion and assessment were undertaken on 4th January 2010 and 20th February 2012. Further, that these stand unchallenged to date. Neither has the Appellant suggested that he sought to challenge the lawfulness of Deportation Order itself once this was issued on 9th January 2013. The Appellant argues, effectively by way of bare assertions, that the mistaken references to s.32(1), (4) and (5) of the 2007 Act are sufficient, in and of themselves, to render the Deportation Order invalid or otherwise unlawful.
42. As we have addressed above, the power to make a Deportation Order resides in s.5(1) of the 1971 Act, not s.32(4) or (5) of the 2007 Act. Section 32(5) obliges the Respondent to make a Deportation Order in the circumstances that apply in respect of foreign criminals and as long as no exception(s) contained in s.33 otherwise apply. That duty however is a duty to make a Deportation Order, which still resides in s.5(1) of the 1971 Act.
43. Mr McKee also sought to rely on the principles of ‘procedural rigour’ in support of his submission that the Respondent ought to correct the mistaken references in the Deportation Order and that failing this, the FtT ought to have found the Order unlawful. The principle of ‘procedural rigour’ usually refers to the conduct of the parties in judicial review proceedings: see R (Spahiu) v SSHD [2018] EWCA Civ 2604; [2019] 1 WLR 1297, R (Talpada) v SSHD [2018] EWCA Civ 841, and R (Dolan) v SSHSC [2020] EWCA Civ 1605; [2021] 1 WLR 2326. It is not a substantive principle of public law that is applicable to the Respondent’s decision making procedure. If what was meant by this submission is that the Respondent made a mistake in the procedure for issuing the order, that was uncontroversial. The wrong form of wording referring to s.32 of the 2007 Act was used in the Deportation Order signed on 9th January 2013. This does not detract from the fact that the Order was still made with reference to the lawful underlying power to deport under s.5(1) of the 1971 Act. It is not arguable that the Respondent had no lawful power to make the order.
44. We are satisfied therefore that as a matter of law, the Judge did not err in reaching the conclusions that he did. Furthermore, the Judge’s reasoning for finding against the Appellant on this issue is also in our view on the whole correct. Firstly, the Judge was right to consider that in the proceedings before him (and before this Tribunal), the Appellant does not hold a statutory right of appeal against the Deportation Order. The decision under challenge is a refusal of the Appellant’s human rights claim, in which the Respondent declined to revoke the extant Deportation Order.
45. To this extent, the Judge’s conclusion at [79] that the Deportation Order can only be reviewed in the light of a human rights claim or a protection claim, pursuant to the guidance handed down in Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 00350 (IAC), is correct. The authority of Wilson in fact considered that an underlying decision to make a deportation order, as opposed to a deportation order itself, is not the subject of the appeal proceedings, following the coming into force of the Immigration Act 2014 and its changes to s.82 of the 2002 Act. The authority also established that the Respondent’s decisions under the 1971 Act - that a person’s deportation is conducive to the public good and that a deportation order should be made accordingly - would have to be unlawful, on public law grounds, before that anterior aspect of the decision-making process could inform the conclusion to be reached by the FtT in a human rights appeal.
46. In this present case of course, the Appellant did hold in 2012 a statutory right of appeal against the Respondent’s 2012 decision, since the amendments brought about by the 2014 Act were not yet enacted. The Judge was correct therefore to record that the Appellant’s dismissed appeal of 2012 acted as his starting point, pursuant to the Devaseelan principles. In any event, the Appellant has not sought to argue within these proceedings, both at first instance and here, that the decision to make a deportation order was in some way unlawful, whether on public law grounds or otherwise.
47. We do not consider that the Judge erred in his consideration of the Appellant’s submissions and in his conclusions that the Deportation Order was an administrative culmination of the underlying decision of 4th January 2010. Nor in the Judge’s conclusion that the mistaken references to s.32 of the 2007 Act did not affect the validity and substance of the underlying decision. The Judge rightly considered that the underlying power to make a Deportation Order resides in s.5(1), as we have addressed above and which is also expressly invoked in the Order.
48. The Judge was also correct to consider the relevance of the Supreme Court’s authority of Majera. Whilst Mr McKee is correct to note that the Supreme Court in Majera was considering a court order, as opposed to an administrative decision, and whether this could be treated as “null and/or void” by one of the subjects of that order. The Supreme Court concluded that even if such a court order or decision was defective in some way, the order or decision would remain in force and valid until such time as this was varied or otherwise discharged.
49. In this case, we are concerned with the Respondent’s Deportation Order, namely an administrative decision and not a decision or order from a court or tribunal. Nevertheless, we agree with Ms Ahmed that the Judge was not wrong to effectively apply in his decision the general principles set out at [29] and [31] of the Court’s judgment in Majera. It is helpful to cite these two paragraphs in more detail:
“29. Accordingly, 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. Equally, even if an unlawful act or decision is challenged before a court of competent jurisdiction, the court may decline to grant relief in the exercise of its discretion, or for a reason Page 11 unrelated to the validity of the act or decision, such as a lack of standing (as in Durayappah v Fernando [1967] 2 AC 337) or an ouster clause (as in Smith v East Elloe). In that event, the act or decision will again remain in effect. An unlawful act or decision cannot therefore be described as void independently of, or prior to, the court’s intervention.
(…)
31. 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. As the Court of Appeal correctly noted in the present case, it may be, in the first place, that to treat the decision as a nullity would be inconsistent with the legislation under which it was made (see, for example, R v Soneji [2005] UKHL 49; [2006] 1 AC 340). Or the result of treating the decision as legally non-existent may be inconsistent with legal certainty or with the public interest in orderly administration: it may, indeed, result in administrative chaos, or expose innocent third parties to legal liabilities (as where they have acted in reliance on the apparent validity of the unlawful decision). (…)”
50. The observations set out in [31] particularly resonate with this case where the Judge found, correctly as we have addressed above, that the correct legislative power to make a deportation order, namely s.5(1) of the 1971 Act, was referred to in the Deportation Order. This was also the case in the Respondent’s decision of 4th January 2010. The Appellant was not successful in his challenge to the 2010 decision, from which the Deportation Order flows, and he has never attempted to challenge the Deportation Order itself. It cannot be said therefore that the Deportation Order has no legal effect.
51. Mr McKee submits that these observations are obiter, i.e. made in passing. However, Mr McKee does not point to any submission or authority to suggest that these observations should not be considered relevant to this present appeal and for the reasons above, we consider that they clearly have application.
52. Mr McKee also submitted that it is wrong in law to suppose that a decision to deport someone takes precedence over the subsequent deportation order, no matter what defects are on the face of that order. Firstly, as we have already considered, the Deportation Order correctly invokes the Respondent’s power under s.5(1) of the 1971 Act and the underlying decision of 4th January 2010 is without any deficiencies.
53. Secondly, it is not a question of the Deportation Order taking precedence: as addressed above, the Appellant does not hold, and has never held, a statutory right of appeal against the Deportation Order issued against him. He has never sought to challenge this Order by way of a judicial review or directly with the Respondent prior to these current proceedings. In addition, for the reasons above, the Appellant has not demonstrated that the Order itself is unlawful on public law grounds.
54. Instead, the Appellant absconded in 2013 and brought himself to the Respondent’s attention in 2021 after he had, on his own case, completed a period of 20 years’ residence. The Judge’s observations that the Appellant had been aware all of this time of the contents of the Deportation Order, and of the Respondent’s intentions to deport him from the UK, were entirely correct.
55. The Supreme Court’s observations in Majera at [32], and which led Mr McKee to distance himself from the use of ‘void’ and ‘null’, are also worth citing here:
“32. These considerations have led judges to be critical of the description of unlawful administrative acts or decisions as “null” or “void”, and have sometimes led them to speak of voidness as a “relative” concept (see, for example, R (New London College Ltd) v Secretary of State for the Home Department (Migrants’ Rights Network intervening) [2013] UKSC 51; [2013] 1 WLR 2358, paras 45-46). The language of voidness and nullity, drawn from the law of contract, can be useful for some purposes in administrative law, but it depends upon an analogy between defective contracts and defective administrative acts which is inexact. The complexity and variability of the practical consequences of unlawful administrative acts necessitate a more flexible approach than is afforded by a binary distinction between what is valid and what is void. Judges have therefore expressed reservations not only about the use of words such as “void” and “null”, but more importantly about reasoning in the field of administrative law which allows the logic of those concepts to override important values underpinning the court’s supervisory jurisdiction, such as the public interest in legal certainty, orderly administration, and respect for the rule of law.”
56. For the reasons above therefore, we do find that the Judge has erred in law in his consideration and assessment of the Appellant’s arguments before him concerning the validity or lawfulness of the Deportation Order against the Appellant.
Ground 2 – Article 8 ECHR assessment
57. The Appellant also sought to argue that the Judge had erred in law in his assessment of the Appellant’s human rights claim under Article 8 ECHR. We can address these submissions very succinctly as we are satisfied that these amount to no more than a mere disagreement with the Judge’s findings and conclusions.
58. It was pleaded in writing that the Judge seemed determined not to believe anything that the Appellant and his witnesses said and that the Judge adopted an openly hostile approach. It was also submitted that the Judge’s adverse findings of the Appellant and his conduct whilst in the UK could be said of anyone who had acquired a period of 20 years’ (unlawful) long residence.
59. Whilst there is some force in the submissions that some of the Judge’s use of language at [113]-[114] was arguably unnecessary, we are also of the view that the Appellant has sought to minimise the seriousness of his past actions. The Appellant was convicted of two counts of false documents, having had in his possession two false passports, with which he tried to obtain employment. Such conduct does have grave consequences and cannot simply be swept away with the ordinary course of events that a 20-year long residence might entail.
60. It is also clear that the Judge took into consideration at [93]-[99] and [103]-[112] the paucity of evidence in support of the Appellant’s residence and established private life in the UK and the previous findings of the FtT from the 2012 appeal. There was little, if any, evidence (documentary or otherwise) to support the Appellant’s claims and the Judge was entitled to treat the Appellant’s own written evidence and that of his witnesses (also written) with caution. This is firstly because of the Appellant’s character and past conduct, including in respect of his dealings with the Respondent, but also because neither the Appellant nor his witnesses were called to given evidence (see [71]).
61. We also agree with Ms Ahmed that the Judge arguably applied a more generous legal threshold when assessing the Appellant’s Article 8 rights and whether these were capable of outweighing the public interest in his removal from the UK. This is because the Judge applied the considerations contained in s.117B of the 2002 Act rather than the more stringent provisions that apply to deportation cases contained in s.117C.
62. The Judge may have taken this approach because the Appellant did not fall to be considered as a ‘foreign criminal’ at the time of the Respondent’s decision and order in 2010 and 2013. However, the Respondent had asserted that the Appellant’s criminal conviction had caused ‘serious harm’ in her decision of 23rd October 2023. This arguably brought the Appellant into the definition contained in s.117C of the 2002 Act, which was of course enacted by the time of the Respondent’s decision in 2023.
63. This arguably needed to be addressed, whether or not the Appellant sought to dispute that categorisation, since it was necessary to consider the law in force and involved at the time of the Respondent’s decision under challenge. We do not find however that this amounts to a material error of law since we do not consider that the Judge erred in his assessment finding against the Appellant under the arguably more generous provisions contained in s.117B. On this basis, we are satisfied that, on the evidence the Appellant presented to the FtT, the Appellant in any event would not have been able to satisfy the requirements contained in s.117C.
64. For all of the reasons above, we do not consider that the Judge has materially erred in law as argued by the Appellant. In the circumstances, we dismiss the Appellant’s appeal and order that the decision of the Judge shall stand.

Notice of Decision
65. The Appellant’s appeal is dismissed. The Judge’s decision to dismiss the Appellant’s human rights appeal stands.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

09.05.2025