The High Court has quashed deportation orders against a mother and son after finding that a conflicting letter about subsidiary protection should have prompted the Minister to revoke the orders and reconsider their case.
In a judgment delivered on 16 January 2015, Ms Justice Faherty ruled that the Minister had been alerted to the mother’s confusion by her solicitor’s letter of 9 March 2010. The letter followed an earlier notice that said she had been granted subsidiary protection, although the accompanying report said she was ineligible. The Minister later described the notice as containing a clerical error: the word “not” had been omitted.
The mother and son’s deportation orders were signed on 9 March 2010. Their solicitor sent further representations between 9 and 24 March, including testimonials seeking leave to remain. The Department said those materials arrived after the orders had been signed and would be considered under section 3(11) of the Immigration Act 1999, which allows the Minister to revoke or amend a deportation order.
The applicants argued that the Minister should instead have set the orders aside and reconsidered their leave-to-remain application under the section 3 process. The respondents said earlier representations had been considered before the orders were made and that the later materials could have been submitted sooner.
The judge found that, once the Minister was on notice of the confusion caused by the contradictory letter and report, fairness required him to use his discretion to revoke the mother and son’s orders and reconsider the leave-to-remain application, taking account of representations then before him. She rejected the respondents’ argument that this approach would open the floodgates. The court quashed the two orders.
The judgment did not quash the separate deportation order against the daughter on this section 3 ground. The court found that the problem identified in its reasoning concerned the processing of the mother and son’s applications.
The applicants also challenged the deportation decisions under Article 8 of the European Convention on Human Rights. The respondents objected that this ground had not been properly pleaded. The judge allowed the court to consider the Article 8 arguments, finding that parts of the pleaded grounds addressed private-life matters and that the respondents had notice of the arguments. However, the respondents requested time to answer the substantive submissions. The court therefore deferred consideration of the Article 8 challenge; it made no ruling on its merits in this judgment.