An application for permission to appeal to the Supreme Court is not a barrier to deportation from the UK

In Geddes v Secretary of State for the Home Department [2024] EWHC 66 (Admin) the High Court has said that a pending application to the Supreme Court does not act as an barrier to deportation on the basis that the appeal has not yet been finally determined.

Background

In 2007, at the age of 17, the applicant was convicted of wounding with intent to inflict grievous bodily harm and sentenced to six years in a young offenders institution. In 2014 the Home Secretary made a decision that his deportation was conducive to the public good under section 3(5)(a) of the Immigration Act 1971. He appealed against the decision under section 82 (in its previous form) of the Nationality, Immigration and Asylum Act 2002.

The First-tier Tribunal dismissed his appeal on 19 November 2014 and the Upper Tribunal did the same on 26 March 2015. The Court of Appeal dismissed the appeal on 20 October 2016. After an extension of time was granted to allow for legal aid to be granted, a notice of appeal was lodged with the Supreme Court.

A deportation order was made on 19 September 2017 and the claimant was detained on 30 October 2017 with a view to his being deported. On 13 November 2017 interim relief was granted, preventing the claimant’s removal from the UK until his application for permission to appeal had been determined by the Supreme Court.

The judicial review

The judicial review was a challenge to the deportation order, the claimant arguing that it was unlawful because of his pending application for permission to appeal to the Supreme Court. An unlawful detention claim was also made, this depended on the first point succeeding.

The claim centred on the meaning of when an appeal was deemed “finally determined” as set out in section 104 of the Nationality, Immigration and Asylum Act 2002. Prior to April 2005, the position had been that an appeal was not deemed finally determined until any kind of further appeal was ongoing or could be brought.

The claimant argued that the plain and ordinary meaning of the words “finally determined” should include appeals to the Supreme Court. The court dismissed this argument.

Conclusions

The court set out the two options for a person in this situation, the first was that the Home Secretary may of his own volition decide not to deport a person where there is a pending application to the Supreme Court.

This would be a dangerous thing to rely on. Instead, anyone in this position would be better to pursue the second option which is to apply for a stay on deportation pending the outcome of the appeal (there is of course no guarantee that such a request would be granted).