Rupert Junior Geddes (R, on the application of) v Secretary of State for the Home Department [2025] EWCA Civ 353

[2025] EWCA Civ 353Case No CA-2024-000300
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EWHC 66 (Admin)
ON APPEAL FROM THE HIGH COURT (KING’S BENCH DIVISION)
ADMINISTRATIVE COURT
MR JUSTICE LANE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/03/2025
Before
LORD JUSTICE BEANLADY JUSTICE ELISABETH LAINGLORD JUSTICE EDIS
Between
THE KING ON THE APPLICATION OFAppellantRUPERT JUNIOR GEDDESAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Russell Wilcox and Qasver Khan (instructed by Thompson & Co) for AppellantJohn-Paul Waite (instructed by Government Legal Department) for RespondentHearing Hearing date: 18 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 27 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The question raised by this appeal from Lane J (brought with permission granted by Newey LJ) is as follows. A foreign national, convicted of a serious offence, is given notice that the Secretary of State has decided that his deportation from the UK would be conducive to the public good. He appeals unsuccessfully to the First-tier Tribunal, the Upper Tribunal and the Court of Appeal, then files an application to the Supreme Court seeking permission to appeal. In the absence of a stay, can a deportation order lawfully be made against him before the Supreme Court has dealt with his application? Lane J answered the question “yes” and I agree with him.

Background

[2]The Appellant is a national of Jamaica. On 15 December 2006, at Inner London Crown Court, when he was 17 years old, he was convicted of wounding with intent to inflict grievous bodily harm. He was sentenced on 22 January 2007 to six years' detention in a young offenders’ institution.[3]On 28 April 2014, the Secretary of State decided that the Appellant’s deportation was conducive to the public good, pursuant to s 3(5)(a) of the Immigration Act 1971. This decision was served on 1 May 2014. Mr Geddes appealed to the First-tier Tribunal under section 82 of the 2002 Act. On 19 November 2014, that Tribunal dismissed his appeal. Mr Geddes appealed to the Upper Tribunal which, on 26 March 2015, dismissed the appeal. He then appealed to this court which, in a judgment handed down on 28 October 2016, dismissed the appeal: RJG v Secretary of State for the Home Department [2016] EWCA Civ 1042. The Appellant then changed solicitors to Thompson & Co, who were in a position to apply for public funding to pursue an appeal to the Supreme Court. On 24 November 2016, Thompson & Co applied to the Supreme Court for an extension of time for filing an application for permission to appeal, whilst they sought to obtain public funding. On 25 November 2016, the Supreme Court granted an extension of time until 28 days after the final determination of the application for public funding: a copy of that decision was provided to the Government Legal Department on 29 November 2016. A final determination of the Appellant’s application for public funding was made on 30 May 2017. On 27 June 2017, the Appellant filed his notice of appeal with the Supreme Court. The Court confirmed that the application had been issued on 3 July 2017.[4]A deportation order was made on 19 September 2017. The Appellant was detained on 30 October 2017 in order to give effect to it by facilitating his removal from the United Kingdom. This led to the issue of a claim for judicial review of the deportation order on 13 November 2017, alleging that it had been unlawfully made. The same day, Supperstone J imposed a stay on removal until determination of Mr Geddes’ appeal to the Supreme Court. Two days later Mr Geddes was released on bail. He has claimed damages for unlawful detention from 30 October to 15 November 2017.[5]On 2 March 2018 Yip J stayed Mr Geddes’ application for permission to bring judicial review until the Supreme Court had determined his application for permission to appeal. The Supreme Court eventually refused permission to appeal on 15 February 2022, over four years and seven months from the filing of the notice of appeal with that court. This delay has never been explained. The one-page order of the Supreme Court simply said that "permission to appeal was adjourned pending the outcome in KO (Nigeria), but that decision does not make it appropriate to give permission to appeal in this case". The judgment in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 had been handed down on 24 October 2018.

The legislation

[6]Sections 78 and 79 of the Nationality, Immigration and Asylum Act 2002, so far as material, provide:- “78 No removal while appeal pending(1) While a person’s appeal under section 82(1) is pending he may not be— (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.(2) In this section “pending” has the meaning given by section 104.(3) Nothing in this section shall prevent any of the following while an appeal is pending— (a) the giving of a direction for the appellant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the appellant (subject to section 79), or (c) the taking of any other interim or preparatory action.(4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92. 79 Deportation[7]An appeal under s 82(1) has, since 2010, been to the First-tier Tribunal.[8]The most important statutory provision in this case is s 104 of the 2002 Act. As amended with effect from 15 February 2010 it provided as follows:- “104 Pending appeal(1) An appeal under section 82(1) is pending during the period— (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).(2) An appeal under section 82(1) is not finally determined for the purpose of subsection (1)(b) while— (a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination, (b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or (c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.” (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99). (a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination, (b) permission to appeal under either of those sections has been granted and the appeal is awaiting determination, or (c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.”[9]Like the judge, I regard it as necessary to set out the two previous versions of section 104. As originally enacted in 2002 the relevant subsections read:- “104 Pending appeal(1) An appeal under section 82(1) is pending during the period— (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while a further appeal or an application under section 101(2)— (a) has been instituted and is not yet finally determined, withdrawn or abandoned, or (b) may be brought (ignoring the possibility of an appeal out of time with permission).” (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99). (a) has been instituted and is not yet finally determined, withdrawn or abandoned, or (b) may be brought (ignoring the possibility of an appeal out of time with permission).”[10]As amended on 4 April 2005 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the relevant provisions of section 104 became as follows:- “104 Pending appeal(1) An appeal under section 82(1) is pending during the period— (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while — (a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination, (b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed, (c) an appeal has been remitted to the Tribunal and is awaiting determination, (d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination, (e) an appeal under section 103B or 103E is awaiting determination, or (f) a reference under section 103C is awaiting determination.” (a) beginning when it is instituted, and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99). (a) an application under section 103A(1) (other than an application out of time with permission) could be made or is awaiting determination, (b) reconsideration of an appeal has been ordered under section 103A(1) and has not been completed, (c) an appeal has been remitted to the Tribunal and is awaiting determination, (d) an application under section 103B or 103E for permission to appeal (other than an application out of time with permission) could be made or is awaiting determination, (e) an appeal under section 103B or 103E is awaiting determination, or (f) a reference under section 103C is awaiting determination.”[11]When the Asylum and Immigration Tribunal (“the AIT”) was abolished in 2010, s 104 was consequentially amended. The functions of the AIT were transferred to the First-tier Tribunal and the Upper Tribunal, both of which had been established by the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). Sections 11 and 13 of the 2007 Act, so far as material, provided:- “11 Right to appeal to Upper Tribunal(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.(2) Any party to a case has a right of appeal, subject to subsection (8).(3) That right may be exercised only with permission...." 13 Right to appeal to Court of Appeal etc. (1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision. (2) Any party to a case has a right of appeal, subject to subsection (14). (3) That right may be exercised only with permission.......(4) Permission.......may be given by— (a) the Upper Tribunal, or (b) the relevant appellate court,(5) An application may be made under subsection (4) to the relevant appellate court only if permission.......has been refused by the Upper Tribunal. … (11) Before the Upper Tribunal decides an application made to it under subsection (4), the Upper Tribunal must specify the court that is to be the relevant appellate court as respects the proposed appeal. (12) The court to be specified under subsection (11) in relation to a proposed appeal is whichever of the following courts appears to the Upper Tribunal to be the most appropriate— (a) the Court of Appeal in England and Wales; (b) the Court of Session; (c) the Court of Appeal in Northern Ireland. (13) In this section except subsection (11), "the relevant appellate court", as respects an appeal, means the court specified as respects that appeal by the Upper Tribunal under subsection (11). (a) the Upper Tribunal, or (b) the relevant appellate court, (a) the Court of Appeal in England and Wales; (b) the Court of Session; (c) the Court of Appeal in Northern Ireland.[12]The judge set out the legislative history, focussing in particular on the amendments to s 104. He observed at [8] that:- “The change which Parliament made to s 104 in April 2005 was profound. Instead of providing that an appeal was not finally determined while any kind of "further appeal" was ongoing or could be brought, the amended s 104(2) set out the specific circumstances in which particular appeals or other forms of challenge would mean that an appeal was not finally determined. One such type of challenge involved an application under s 103A for an order requiring the (then single-tier) Asylum and Immigration Tribunal to reconsider its decision. Appeals from that Tribunal were covered by s 104; but only insofar as these were to the "appropriate appellate court", defined in section 103B(5) as the Court of Appeal in England and Wales, the Court of Session, and the Court of Appeal in Northern Ireland. No provision was made relating to appeals from those courts to the House of Lords (the Supreme Court was established in 2009).”[13]He noted that further changes were made, coming into effect in 2010, when the AIT was replaced by the Upper Tribunal. The judge pointed out that if “finally determined” in s 104(1) did have the “plain and ordinary meaning” contended for by Dr Wilcox there would have been no need for Parliament to enact section 104(2). It would have been just as obvious that an appeal to this court was covered by the phrase as that an appeal to the Supreme Court was within its scope. He added:
“At this point, the interpretative principle, expressio unius est exclusio alterius becomes a problem for the claimant. The fact that the legislature has specified sections 11 and 13 of the 2007 Act means it must have intended to exclude other appellate situations.”

The judge referred to Niaz (NIAA 2002 s. 104:

[14]pending appeal) [2019] UKUT 00399 (IAC). In that case, the Upper Tribunal rejected the submission that “an appeal is not finally determined for the purpose of section 104 of the 2002 Act during the period when a judicial review of the Upper Tribunal's refusal of permission to appeal may be made, or whilst an application for such a judicial review is awaiting decision" (paragraph 24). At paragraph 29, the Upper Tribunal held that "[a]lthough section 104(2) is describing situations in which an appeal is not to be regarded as finally determined, the corollary is that, where none of the situations described in sub-paragraphs (a) to (c) apply (and the appeal has not lapsed or been withdrawn or abandoned), the appeal in question must be treated as having been finally determined". The Upper Tribunal considered that "any other result would mean the respondent could never safely assume that the removal of an individual would not violate section 78 of the 2002 Act."

Submissions

[15]Dr Wilcox submitted that in s 104(1)(b) of the 2002 Act, “finally determined” means what it says. An appeal cannot be said to be finally determined at a time when there is an outstanding application for permission to appeal to the Supreme Court. There is no definition in s 104 of when an appeal is finally determined. There are merely two examples, set out in s 104(2), of situations in which an appeal is not finally determined. Dr Wilcox also relied on the fact that pursuant to changes made by Parliament in 2015 it is now possible for litigants who have lost before the Upper Tribunal to seek permission for a “leapfrog” appeal to the Supreme Court. It would be anomalous if, as the judge held, such a pending appeal did not impose a bar on removal, whereas a pending appeal to this court did impose such a bar.[16]For the Respondent, Mr Waite submitted that the starting point in construing s 104 must be that an appeal under s 82(1) means an appeal from a decision of the Secretary of State to the First-tier Tribunal. If s 104(2) had not been enacted, the effect of ss 78 and 79 would be that an Appellant could not be removed, nor made the subject of a deportation order, until the First-tier Tribunal had given its decision on his appeal under s 82(1), but that would be the extent of the bar on removal. The effect of s 104(2), however, is to provide that even when the First-tier Tribunal has finally determined an Appellant’s case, the appeal is nevertheless to be treated as “not finally determined” and therefore is deemed still to be “pending” if any of the situations covered by s 104(2) is prevailing. These are that an application for permission to appeal to the Upper Tribunal pursuant to s 11 of the 2007 Act could be made or is awaiting determination; that permission to appeal to the Upper Tribunal has been granted and the substantive appeal is awaiting determination; that an application for permission to appeal to this court (or to the Court of Session or to the Court of Appeal in Northern Ireland) could be made or is awaiting determination; or that permission to appeal to this court (or to one of our sister courts in Scotland and Northern Ireland) has been granted and the substantive appeal is awaiting determination. There is also provision for cases where an appeal has been remitted under s 12 or s 14 of the 2007 Act: we need not be concerned with those cases.

Discussion

[17]In my judgment, Lane J’s construction of s 104 of the 2002 Act was plainly correct. As the Upper Tribunal held in Niaz, which I consider to have been rightly decided, there is a strong policy reason why Parliament intended s 104(2) to produce an exhaustive list of the situations in which an appeal is not finally determined. The amended text brings clarity to the very important question of when an individual may lawfully be the subject of a removal direction or a deportation order while he is still litigating and when no stay has been granted. Like the judge, I consider that the fact that Parliament specified permission applications and appeals to the Upper Tribunal and to this court means that it must have intended to exclude other appellate situations, in particular an application for permission to appeal to the Supreme Court. This interpretation is supported by the deliberate change from the first version of s 104, which clearly provided that an appeal was “pending” while any further appeal could be or had been brought.[18]I do not consider that any anomaly arises out of Parliament’s decision (made in the Criminal Justice and Courts Act 2015) to allow the possibility of leapfrog appeals from the Upper Tribunal to the Supreme Court. Such appeals are very rare and it is a precondition of an application for permission to appeal direct to the Supreme Court that the Upper Tribunal must grant a certificate that the case involves a point of law of general public importance which in its view should be considered by the Supreme Court. Any competent practitioner applying for such a certificate would apply also for a stay on the appellant’s removal or deportation until the Supreme Court had given its decision, and any judge granting a certificate would almost certainly grant a stay. The absence of a statutory bar in such rare cases creates no difficulty in practice.

Conclusion

[19]I would dismiss this appeal[20]I agree.[21]I also agree.

order

appeal(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) that may be brought or continued from within the United Kingdom relating to the decision to make the order— (a) could be brought (ignoring any possibility of an appeal out of time with permission), or (b) is pending.(2) In this section “pending” has the meaning given by section 104.” (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. (a) the giving of a direction for the appellant’s removal from the United Kingdom, (b) the making of a deportation order in respect of the appellant (subject to section 79), or (c) the taking of any other interim or preparatory action. (a) could be brought (ignoring any possibility of an appeal out of time with permission), or (b) is pending.