Geddes, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a national of Jamaica, was convicted at age 17 in 2006 of wounding with intent to inflict grievous bodily harm and sentenced to six years' detention. In April 2014, the Secretary of State decided that the Appellant's deportation was conducive to the public good under the Immigration Act 1971. The Appellant unsuccessfully appealed this decision through the First-tier Tribunal, the Upper Tribunal, and the Court of Appeal. Subsequently, the Appellant sought permission to appeal to the Supreme Court, with an extension of time granted to apply for public funding. The application for permission was filed in 2017, but the Supreme Court delayed its decision until February 2022, ultimately refusing permission to appeal.

A deportation order was made in September 2017, and the Appellant was detained in October 2017 to effect removal. Judicial review was sought challenging the lawfulness of the deportation order, and a stay on removal was imposed pending determination of the Supreme Court appeal application. The Appellant was released on bail shortly thereafter and claimed damages for unlawful detention. The judicial review application was stayed until the Supreme Court ruled on the permission to appeal, which was refused after over four years' delay.

Legal Issues Presented

1. Whether a deportation order can lawfully be made against a foreign national before the Supreme Court has dealt with an application for permission to appeal, in the absence of a stay.

Arguments of the Parties

Appellant's Arguments

• The term "finally determined" in section 104(1)(b) of the Nationality, Immigration and Asylum Act 2002 means exactly that: an appeal cannot be considered finally determined while an application for permission to appeal to the Supreme Court remains outstanding.
• Section 104 does not define "finally determined" but provides examples of when an appeal is not finally determined, and the absence of an explicit exclusion for Supreme Court permission applications should be interpreted in the Appellant's favor.
• Parliament's 2015 changes allowing "leapfrog" appeals to the Supreme Court create an anomaly if pending Supreme Court appeals do not bar removal, while pending appeals to the Court of Appeal do.

Respondent's Arguments

• The statutory scheme limits the definition of "pending appeal" to appeals from the Secretary of State's decision to the First-tier Tribunal and subsequent appeals to the Upper Tribunal and this court, with permission applications and appeals to the Supreme Court excluded.
• Sections 78 and 79 of the 2002 Act bar removal only while an appeal under section 82(1) is pending, which is defined exhaustively by section 104(2) to include appeals to the Upper Tribunal and this court, but not to the Supreme Court.
• The effect of section 104(2) is to clarify that once the First-tier Tribunal and other specified appeals are determined, the appeal is finally determined for the purposes of removal, even if permission to appeal to the Supreme Court is outstanding or pending.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing appeals under the Nationality, Immigration and Asylum Act 2002, focusing on sections 78, 79, and 104. Section 78 prohibits removal while an appeal is pending, but section 78(3)(b) permits the making of a deportation order subject to section 79, which restricts deportation orders while certain appeals are pending or could be brought. The critical interpretative issue was the meaning of "pending" and "finally determined" in section 104.

The court reviewed the legislative history of section 104, noting successive amendments and the transition from the Asylum and Immigration Tribunal to the First-tier and Upper Tribunals. The 2005 and 2010 amendments to section 104 introduced a detailed and exhaustive list of circumstances in which an appeal is not finally determined, specifically including appeals to the Upper Tribunal and this court but excluding applications for permission to appeal to the Supreme Court.

The court applied the principle expressio unius est exclusio alterius, reasoning that Parliament's explicit listing of certain appellate stages to be regarded as "pending" necessarily excludes others not mentioned, such as permission applications to the Supreme Court. The court rejected the Appellant's argument that the absence of a statutory bar on removal pending Supreme Court permission applications created an anomaly, reasoning that such appeals are rare and that stays are typically granted in those circumstances.

The court found the Upper Tribunal's decision in Niaz persuasive, which held that the list in section 104(2) is exhaustive and that appeals not covered therein must be treated as finally determined for the purposes of removal.

Accordingly, the court agreed with the lower judge that a deportation order can lawfully be made before the Supreme Court has dealt with an application for permission to appeal, in the absence of a stay.

Holding and Implications

The appeal is dismissed.

The court held that the statutory framework permits the making of a deportation order and removal of an appellant even when an application for permission to appeal to the Supreme Court remains outstanding or pending, provided no stay has been granted. This interpretation rests on the exhaustive list of pending appeals in section 104(2) of the 2002 Act, which excludes Supreme Court permission applications.

The direct effect is that foreign nationals in similar circumstances may be subject to deportation orders before the Supreme Court considers their permission applications, absent a stay. The decision does not establish new precedent beyond clarifying the application of existing statutory provisions and does not affect the possibility of judicial discretion to grant stays in appropriate cases.