Myckoo (Jamaica), R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns a deported Jamaican citizen ("Appellant") who challenged the Secretary of State's refusal to revoke a deportation order. The Appellant initially entered the United Kingdom as a visitor in 1997, subsequently married a British citizen, and had children in the UK. After a criminal conviction for supplying Class A drugs in 2003, the Secretary of State issued a deportation order. The Appellant appealed on Article 8 ECHR grounds, emphasizing family life and his daughter's medical condition. The appeal was dismissed by an adjudicator and upheld by a senior immigration judge. The Secretary of State refused to accept further submissions as a fresh human rights claim under paragraph 353 of the Immigration Rules, and declined to revoke the deportation order.

The Appellant sought judicial review of the Secretary of State's refusal to treat his submissions as a fresh claim and to revoke the deportation order. Permission was granted, and a Deputy High Court Judge dismissed the claim, finding no unlawful decision. The Appellant was deported to Jamaica before the Court of Appeal's 2009 decision in BA (Nigeria) clarified that an in-country appeal does not require a fresh claim. The Appellant then appealed the Deputy High Court Judge's decision, asserting error in the treatment of his submissions and loss of in-country appeal rights due to deportation.

Legal Issues Presented

1. Whether the Appellant's submissions to the Secretary of State amounted to a "fresh claim" under paragraph 353 of the Immigration Rules, entitling him to an in-country appeal against deportation.
2. Whether the Appellant retained the right to pursue an in-country appeal after deportation, particularly in light of the Court of Appeal and Supreme Court decisions in BA (Nigeria) clarifying the nature of in-country appeals.
3. Whether the court has the power to order the Secretary of State to facilitate the Appellant's return to the United Kingdom to pursue an in-country appeal.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State and the Deputy High Court Judge proceeded under a misapprehension that an in-country appeal required a fresh claim, as per paragraph 353 of the Immigration Rules.
• The Appellant was unjustly deprived of his right to an in-country appeal by being deported before the Court of Appeal's ruling in BA (Nigeria).
• The appeal would have good prospects of success if pursued in-country, and the Appellant is substantially prejudiced by having to appeal from Jamaica.
• As a matter of justice, the court should order the Secretary of State to use best endeavours to return the Appellant to the UK to pursue the appeal.

Secretary of State's Arguments

• The Appellant never commenced an appeal under section 82, either inside or outside the UK.
• The decision of the Deputy High Court Judge on the fresh claim issue did not affect the Appellant's entitlement to appeal under section 82.
• The deportation was lawful, carried out pursuant to a final decision not subject to appeal at the time.
• The retrospective effect of the Court of Appeal and Supreme Court decisions explains the harshness faced by the Appellant.
• The Appellant can apply for an extension of time to appeal, and the Secretary of State would not oppose such an extension.
• The Appellant can rely on other grounds of appeal (grounds (c) and (e)) even if ground (g) is unavailable from outside the UK.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework under the Nationality, Immigration and Asylum Act 2002, particularly sections 78, 82, 84, 92, 94, and 95, alongside paragraph 353 of the Immigration Rules. Initially, it was believed that only "fresh claims" could be pursued in-country, but the Court of Appeal's decision in BA (Nigeria) clarified that this restriction does not apply.

The Appellant's submissions made after deportation did not amount to a fresh claim under paragraph 353, but this fact became irrelevant following BA (Nigeria), which established that the right to an in-country appeal is not contingent on the claim being fresh.

The court acknowledged the harshness caused by the Appellant's deportation before this legal development but emphasized that the deportation was lawful and based on final decisions not appealed within the time limits. The erroneous advice regarding appeal rights did not invalidate the deportation or the decision notices.

The court found that the Appellant retains the right to apply for an extension of time to appeal out of time and that pursuing the appeal from Jamaica, while more challenging, is feasible, especially as the appeal relies largely on documentary evidence and video link participation.

The court distinguished this case from prior cases where deportations were unlawful at the time and where courts ordered returns. Here, the deportation was lawful, so no order to return the Appellant was appropriate.

Finally, the court held that the judicial review proceedings were ineffective because the Appellant could have appealed the deportation decision directly under section 82 but chose not to do so.

Holding and Implications

The court DISMISSED the appeal.

The direct effect is that the Appellant was lawfully deported and has no entitlement to an order compelling the Secretary of State to return him to the United Kingdom. The Appellant retains the right to apply for an extension of time to appeal the deportation decision from abroad, and the Secretary of State will not oppose such an application. The court emphasized that the legal clarification in BA (Nigeria) applies retrospectively, but this does not invalidate lawful decisions made before that ruling. No new precedent was established by this judgment; it applied existing law and recent authoritative decisions to the facts.