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High Court overturns refusal to allow fresh claim for revocation of deportation order

9 May 2017

David Jones

In OA, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 486 (Admin) (15 March 2017) , the High Court granted Judicial Review of the Secretary of State for the Home Department’s refusal to admit a fresh claim made in support of an application for revocation of a deportation order. David Jones of Garden Court Chambers represented the claimant in the High Court.

The case concerned an incidence of serious offending, which the Court properly recognised carried substantial weight. However, the Court concluded that the decision maker had erred in the law in finding that the threshold for a fresh claim was not made out after the conclusion of his original appeal against deportation, relying in particular on the birth of the claimant’s child and the claimant’s close relationship to the child, a British citizen who was one year old at the time of the decision.

Importantly, the Court expressly rejected the Secretary of State’s submission that the interests of that child could be extrapolated from, and so rejected, in reliance upon the assessment previously carried out by the Tribunal in respect of the claimant’s other children. In doing so, the Court emphasised the need for a child-centred and individualised approach to the assessment of the application of the exception set down in paragraph 399(b) of the rules.

Further, the Court rejected the Secretary of State’s contention that it would not be unduly harsh for the claimant’s British partner to relocate to Nigeria with him in circumstances where the Secretary of State had previously accepted that it would be unreasonable for the partner’s children from a previous relationship to relocate. The Court found the suggestion that the partner could choose to move to Nigeria amounted, in effect, to saying she could choose to stop living with, and looking after, her daughter. As counsel for the Secretary of State sensibly acknowledged, this cannot be described as a real choice.

The Court further found the claimant had been unlawfully detained, highlighting when so doing a Memorandum of Understanding between the Nigeria and British Governments which described the circumstances in which an emergency travel document would be issued by the former, the particulars and application of which were recognised on the Claimant’s case to constitute a substantial bar to documentation.

David Jones is a member of the Garden Court Chambers Immigration Team. He was instructed by Tori Sicher of Sutovic & Hartigan. The claimant awaits a further right of appeal before a new immigration judge and the settlement of his claim for unlawful detention.

The full judgment is available: OA, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 486 (Admin) (15 March 2017)

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