R (on the application of Fitzroy George) v The Secretary of State for the Home Department  UKSC 28
Judgment Handed Down: 14th May 2014
The Supreme Court in this case were asked to determine the immigration status of a man who had been subject to a deportation order, but where the immigration judge had decided that he could not actually be deported as it would breach his Article 8 ECHR rights to respect for family life. The relevant issue was, given that the deportation order had to be revoked, does that mean that the previously enjoyed indefinite leave to remain is automatically reinstated?
Fitzroy George, born in Grenada, came to the UK in 1995 and established a family; he has an ex-partner and they have a young child born in 2005 with whom he has regular contact. Mr George had indefinite leave to remain but following a string of convictions including supply of heroin and cocaine, the Home Secretary took the decision to serve a deportation order on him on the grounds that his continued presence in the UK was not conducive to the public good.
Deportation can be denied on a number of grounds. For example, where deportation would lead to a real risk that the deportee would be subjected to inhumane and degrading treatment, the deportation would be unlawful for breaching his/her Article 3 ECHR rights. Of relevance to Mr George was the protection offered by Article 8 based on his family ties to his daughter in the UK. The immigration judge, therefore, revoked the deportation order on Article 8 grounds. His indefinite leave to remain was not reinstated though and the Home Secretary granted temporary leave to remain with the power to impose conditions on residence.
When Mr George sought judicial review to have his indefinite leave to remain reinstated as a direct result of the revocation of the deportation order, the High Court dismissed his claim. In R (on the application of Fitzroy George) v The Secretary of State for the Home Department  EWCA Civ 1362, the Court of Appeal upheld Mr George’s appeal at which point the Home Secretary appealed further to the Supreme Court.
The Supreme Court, in R (on the application of Fitzroy George) v The Secretary of State for the Home Department  UKSC 28, allowed the Home Secretary’s appeal and ruled that indefinite leave to remain does not revive when a deportation order is revoked. The reasons for the judgment can be summarised in three main points:
- Since the enactment of the Immigration Act 1971, all immigration rules subsequently made under the Act have expressly assumed that indefinite leave to remain does not revive where a deportation order is revoked. Lord Hughes referred to Macdonald’s Immigration Law and Practice in the United Kingdom which record this same proposition without question in successive editions (paragraph 12).
- The revocation of a deportation order does not render the individual any less dangerous or adverse to the public good. Effectively, just because the individual cannot be deported does not mean that their presence is no longer adverse to the public good.
- The legal obstacle(s) to deportation may not be indefinite. For example, if deportation is not possible due to a risk of inhumane treatment or torture in the deportee’s home state, a regime change may occur whereby safe deportation would become possible. Family life circumstances may change also to the extent that deportation in the future would not be in breach of any respect for family rights under Article 8.
Full case judgment for R (on the application of Fitzroy George) v The Secretary of State for the Home Department  UKSC 28 available at: http://supremecourt.uk/decided-cases/docs/UKSC_2012_0250_Judgment.pdf
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