If you were given leave to do something, but then an order was made which invalidated it, and now that order itself has been revoked – is the result that you’ve automatically got leave again? Is your original leave “revived” in other words, by the revocation of the order invalidating it? This was the sort of question the Supreme Court decided in its judgment today. You don’t get your leave back, it said – at least not in an immigration case after a deportation order has been revoked.

Fitzroy George was given indefinite leave to remain in the UK, but then was imprisoned more than once for drugs offences. The Home Secretary issued a deportation order, which had the effect set out in section 5(1) of the Immigration Act 1971:

a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made

Mr George eventually won his appeal against deportation, though, which in effect revoked the deportation order because it breached his right to family life. He could not, then, be deported, for legal reasons.

The Court of Appeal had decided (by a majority of two to one, Lord Justice Maurice Kay agreeing with Sir Stephen Sedley, against Lord Justice Stanley Burton) that the indefinite leave to remain was revived by that court decision. The main plank of its reasoning was the existence of a power under section 76(1) of the Nationality, Immigration and Asylum Act 2002 to revoke leave:

(1) The Secretary of State may revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person—
(a) is liable to deportation, but
(b) cannot be deported for legal reasons.

That power would never have been necessary, the Court of Appeal said, had leave remained “invalidated” anyway, after a deportation order was revoked. And seeing leave to remain as having been revived resulted in a straightforward and fair situation, whereby the Home Secretary could still revoke leave, subject to an appeal.

The Supreme Court unanimously disagrees, in a single judgment given by Lord Hughes. It’s clear from every version of the Immigration Rules since 1971, he says, that Parliament has assumed leave is invalidated once and for all by a deportation order – so that must have been Parliament’s intention all along. Section 76 of the still makes sense even if leave is extinguished for ever, he says, since it covers the different situation of a person liable to deportation but who’s never been subject to a deportation order. And there’s no need for any further appeal about the invalidation of indefinite leave to remain, since Mr George has already has ample rights of appeal.

Lord Hughes puts a great deal of emphasis on the Immigration Rules as an extrinsic aid to interpretation, but really the essence of his reasoning is a paragraph 29:

The terms of section 5 of the 1971 Act are, as words, capable either of importing revival of leave or of not doing so. Revival is not their natural meaning, because the natural meaning is that revocation takes effect when it happens and does not undo events occurring during the lifetime of the deportation order. Revival is a significant and far-reaching legal concept, and it is much more likely that it would have been specifically provided for if it had been intended.

2014-06-06T17:20:05+00:00