Home Office cannot make second deportation decision absent change of circumstances By Colin Yeo

In the case of Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848, Lord Justice Irwin in the Court of Appeal held that where an appeal against deportation is allowed, the Home Office cannot make a second decision to deport unless there has been a change of circumstances.

It is not a proper implication from Antonio that, where an appeal has been allowed, the Secretary of State can simply take a fresh decision to deport, or indeed a fresh decision, based on the proposition that a relevant exception preventing the deportation of a foreign criminal no longer applies, absent a material change of circumstances. That would indeed undermine the finality of judgments. Absent a successful further appeal, and absent a material change in circumstances, such a judgment stands.

The case of Antonio [2017] EWCA Civ 48 was correctly decided in holding that where the Home Office itself revokes a deportation order there is no need for a subsequent conviction to justify making a subsequent deportation order. But the situation is different where there has been full judicial consideration and a judgment.

On the facts of the case, there had been a material change of circumstances in this case and therefore the second deportation decision was justified. The change was one of circumstances in the country of origin, Zimbabwe, such that the claimant was no longer at risk on return.

The necessary material change of circumstances need not involve further offending or poor conduct in the UK, we might therefore deduce.

Both sets of representatives were criticised for lack of focus in their paperwork and oral submissions in the case, which the Law Society Gazette has covered elsewhere. In a separate concurring judgment Hickinbottom LJ warns that failure to comply with the Practice Direction may lead to disallowed costs:

Where a skeleton argument does not comply with these requirements then it may be returned to its author by the Civil Appeals Office (paragraph 31(2)(a)(i)); and the costs of preparing a skeleton argument which does not comply with these requirements, or which was not filed within the time limits provided by the Practice Direction or order of the court, will not be allowed on the assessment of costs except as directed by the court (see paragraph 5.1(5) of CPR PD 52A, and paragraph 31(5) of CPR PD 52C). Subject to the intervention and guidance of the court, oral submissions should fall within the scope of, and elucidate, the skeleton argument.

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