The case of EYF (Turkey) v Secretary of State for the Home Department  EWCA Civ 592 (11 April 2019) concerned the proper construction of Paragraph 391(a) of the Immigration Rules.
Part 13 of the Immigration Rules sets out the Secretary of State’s policy in relation to deportation where the procedure for deportation set out in section 5 of the Immigration Act 1971 applies.
Paragraphs 390 to 392 of the Rules address the revocation of a deportation order with Paragraph 391 being the most relevant in EYF’s appeal.
By way of brief background, the Appellant, a citizen of Turkey who had entered the UK on 22 November 2000 was deported to Turkey on 14 September 2005 after he was convicted of the offence of affray and sentenced to two years imprisonment.
Following deportation, he made an application for entry clearance to enter the UK from Turkey. After that application was refused because of the outstanding deportation order, he made an application to revoke the deportation order. The application did not succeed.
The Appellant’s last application for revocation of the deportation order was made on 23 May 2013.
The Secretary of State made a decision refusing to revoke the deportation order on 5 June 2015. It is this decision which subsequently became the subject of the appeal to the Court of Appeal.
Section 5 of the Immigration Act 1971 states:
“Procedure for, and further provisions as to, deportation.
(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 Immigration Rules provide:
“Revocation of deportation order
390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
391.In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:
(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or
(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors”.
Relevant Caselaw considered
In Smith (paragraph 391(a) – revocation of deportation order  UKUT 166 (IAC), the Upper Tribunal held at paragraph 23:
“The fact that a period of ten years has elapsed since the making of the order creates a presumption that the order will be discharged unless, having considered the individual facts of the case, the Secretary of State considers that it continues to be in the public interest to maintain the order.”
And at paragraph 26:
(ii) “[…] paragraph 391(a) allows the Secretary of State to consider on a case by case basis whether a deportation order should be maintained. The mere fact of past convictions is unlikely to be sufficient to maintain an order if the ‘prescribed period’ has elapsed. Strong public policy reasons would be needed to justify continuing an order in such circumstances.”
In SU (Pakistan) v Secretary of State for the Home Department  EWCA Civ 1069, David Richards LJ at paragraph 64 of the judgment stated obiter that the proper construction of 391(a) was without presumption once the prescribed period had elapsed as follows:
“…. While under paragraph 391 there is a presumption that continuation of the deportation order “will be the proper course” if less than 10 years have elapsed, there is no presumption either way after the 10 years have elapsed. Paragraph 391 simply requires each case to be considered on its merits, taking account of applicable paragraphs of the Rules, including most ` obviously paragraph 390, and the applicable statutory provisions. The effect of the expiry of 10 years is only that the previous presumption in favour of maintaining the order falls away…”
The arguments in brief
It was argued on behalf of the Appellant that:
Paragraph 391(a) of the Immigration Rules should be construed as meaning that once an applicant has complied with the prescribed period (in this case 10 years) a new ‘presumption’ arises to the effect that the fact of the making of a deportation order in consequence upon the criminal offending cannot of itself justify the continuation of the order beyond the prescribed period.
Paragraph 391(a) should be construed to mean that an applicant’s compliance with a deportation order for the prescribed period must carry ‘very significant weight’ in favour of a decision to revoke it to the extent that it counterbalances the public interest in the maintenance of the deportation order.
On behalf of the Secretary of State, it was submitted that after the prescribed period has elapsed, there is no presumption either way. Each applicant must be taken on his or her merits. The plain meaning of the Rule is that after ten years a case-by-case assessment is required.
The Court of Appeal’s considerations and conclusions
The Court’s reasoning, along with their conclusions are as follows:
In Smith, the Upper Tribunal considered that its reasoning was supported by the decision in ZP (India) v Secretary of State for the Home Department  EWCA Civ 1197. One of the issues in ZP (India) was the impact on the proportionality balance of the prescribed period in the circumstance that early revocation within the prescribed period was being considered. In that context, at paragraph 25 of the judgment Underhill LJ said that the “default position must be that deportees should ‘serve’ the entirety of the prescribed period in the absence of specific compelling reasons to the contrary.”
The Court in EYF did not agree that ZP (India) supports the reasoning of the Upper Tribunal in Smith. Underhill LJ at paragraph 25 of ZP (India) was clear that the proposition that the public interest in maintaining the deportation order would generally diminish over time was only accepted up to a point. That point was the duration of the prescribed period. That said nothing about the asserted existence of a new presumption at the end of the prescribed period. It leaves the question at large. Furthermore, it is of note that the wording of the Rule changed after the decision in ZP (India) to add-in by amendment the words that are critical to the interpretation relied upon by the Secretary of State.
The plain language of the Rule supported the Secretary of State’s position. The Court agreed with the obiter comments of David Richards LJ in SU (Pakistan. It was considered that there is an obvious advantage in taking the plain meaning of words as he had done: the clarity of understanding and consistency of application that are necessary in a Tribunal is made all the more likely. Rule 391(a) works perfectly well without implying any further words.
Within the ten year period, it will be very difficult for other factors to counterbalance the presumptive effect of the Secretary of State’s policy. That is consistent with the decision of the Court of Appeal in ZP (India).
Once the ten year period has elapsed it becomes easier to argue that the balance has shifted in favour of revocation on the facts of a particular case because the presumption has fallen away; but that does not mean that revocation thereafter is automatic or presumed. The question of revocation of a deportation order will depend on the circumstances of the individual case.
The Court of Appeal dismissed EYF’s appeal.