Sohail Tasib, R (on the application of) v Secretary of State for the Home Department [2026] EWCA Civ 996

[2026] EWCA Civ 996Case No CA-2026-000468
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2026] EWHC 139 (Admin)
ON APPEAL FROM THE HIGH COURT
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MRS JUSTICE FARBEY DBE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 July 2026
Before
LORD JUSTICE PETER JACKSONLORD JUSTICE LEWISSIR NICHOLAS UNDERHILL
Between
THE KING (on the application of SOHAIL TASIB)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Chris Buttler KC and Raza Halim (instructed by Duncan Lewis Solicitors) for AppellantRory Dunlop KC and Amelia Williams (instructed by the Treasury Solicitor) for RespondentHearing Hearing dates: 1 and 2 July 2026
Approved JudgmentThis judgment was handed down remotely at 4pm on 29 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This appeal concerns two decisions of the respondent, the Secretary of State for the Home Department. The first was a decision to refuse authority for an airline to carry the appellant, Mr Sohail Tasib, from Pakistan to the United Kingdom. That was done pursuant to an authority to carry scheme (“the Scheme”) made by the Secretary of State under powers conferred by the Counter-Terrorism and Security Act 2015 (“the 2015 Act”). The relevant paragraph of the Scheme was paragraph 14(f) which provides that authority to carry a person to the United Kingdom may be refused in respect of, amongst others, individuals “whom the Secretary of State is in the process of making the subject of a deportation order”. The second decision that is challenged was a direction that Mr Tasib be excluded from the United Kingdom.[2]In brief, Mr Tasib is a national of Pakistan. He has lived in the United Kingdom with his family since he was six years old. He had indefinite leave to remain in the United Kingdom from June 2006 until it was cancelled in June 2025. His wife is a British citizen. In 2018, he pleaded guilty to offences of possession of heroin, and of crack cocaine, with intent to supply, dangerous driving, and two other offences. He was sentenced in November 2018 to a total of 52 months’ imprisonment (that is, four years and four months) for the various offences.[3]On 16 September 2024, Mr Tasib travelled with his wife to Pakistan to visit his father-in-law who had suffered a heart attack. It was their intention to return on 6 October 2024. On 25 September 2024, the Secretary of State served what has been described as a stage 1 deportation decision, that is a notice that the Secretary of State was proposing to make a deportation order, on the appellant at his home address in the United Kingdom. The letter gave Mr Tasib the opportunity to make representations as to why he should not be deported. His father sent a photograph of the letter to Pakistan, as Mr Tasib was still there. Mr Tasib went almost immediately to an airport in Pakistan. The airline sought authority to carry Mr Tasib to the United Kingdom. That was refused on 27 September 2024. The airline was informed of that decision on 28 September 2024 and Mr Tasib was notified of the refusal on that date. There was subsequent correspondence between Mr Tasib and lawyers acting on his behalf and officials of the Secretary of State. On 13 June 2025, Mr Tasib was informed by letter that the Secretary of State had personally directed that he should be excluded from the United Kingdom as this was considered to be conducive to the public good. On the same date, an immigration official sent a letter to Mr Tasib’s solicitors cancelling his indefinite leave to remain in the United Kingdom. Mr Tasib has remained in Pakistan since September 2024. His wife remained with him until 22 July 2025 when she returned to the United Kingdom for medical treatment in connection with her pregnancy.[4]Mr Tasib brought a claim for judicial review of the refusal of authority to carry and the exclusion direction on a number of grounds. Farbey J. (“the judge”) dismissed the claim on some of those grounds, and refused to grant permission to apply for judicial review on other grounds. This appeal to the Court of Appeal concerns only four of those grounds, and one other issue arising out of a respondent’s notice. The four issues arising out of the claim for judicial review are whether the judge erred:(1) in her interpretation of paragraph 14(f) of the Scheme as Mr Tasib was not a person whom the Secretary of State was “in the process of making the subject of a deportation order” when she served what is described as the stage 1 deportation decision (this was ground 2 of the claim for judicial review);(2) in finding that the refusal of authority to carry was not a disproportionate interference with Mr Tasib’s right to respect for private and family life within the meaning of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) (this was ground 4 of the judicial review claim);(3) in failing to find that the exclusion direction was vitiated by the fact that the refusal of authority to carry (on which the exclusion direction was based) was itself unlawful; (ground 3A of the judicial review claim);(4) in failing to find that the exclusion direction was unlawful as there was no power to make such a direction in relation to a Commonwealth citizen (ground 4 of the judicial review).[5]The first two issues arise from the two grounds of appeal for which the judge granted permission. The third and fourth issues concern grounds for which the judge refused permission to apply for judicial review. I would grant permission to apply for judicial review on those two grounds pursuant to CPR 52.8 (rather than granting permission to appeal). I would retain the substantive hearing of the claim for judicial review on those two grounds in the Court of Appeal. I will deal with those two grounds of claim in this judgment, together with the two grounds of appeal. This Court indicated that that was a possible course of action in its order dated 8 April 2026 and indicated that the parties should deal with the substance of those grounds at the hearing. In the event, this Court heard full argument on all four issues.[6]A fifth issue is raised in a respondent’s notice. That issue is:
“whether Mr Tasib, as a person who was outside the United Kingdom at the time that the authorisation was refused, was a person within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention and so was a person whose Convention rights the United Kingdom had to respect.”
[7]The Secretary of State has two difficulties in seeking to rely on the additional ground set out in the respondent’s notice. First, she did not file the respondent’s notice by 4 March 2026, that is within 14 days of being served with the appellant’s notice, as required by CPR 52.13(4) and (5). Rather, she served the notice on 5 June 2026, that is more than two months out of time. She has applied for an extension of time. Secondly, this was not an issue raised by the Secretary of State in the proceedings in the High Court. The Secretary of State, therefore, needs permission to rely on a ground not advanced in the court below.[8]In considering an application for an extension of time pursuant to CPR 3.5, the Court must have regard first to whether the failure to comply with the relevant rule is serious and significant, secondly, the reasons for the failure and thirdly, to all the circumstances of the case: see R (Ammori) v Secretary of State for the Home Department [2026] 1 WLR 1000 at paragraph 97. I do regard the failure to serve the respondent’s notice within time as significant. I would not regard the reasons given, namely that it was only when leading counsel was instructed to prepare the skeleton argument for the appeal that the point was realised, as an adequate reason for the failure. Furthermore, one of the decisions under challenge is a decision of 13 June 2025 which said expressly that the Convention did not apply as Mr Tasib was outside the United Kingdom for the purposes of Article 1 of the Convention. It is very difficult to understand, therefore, how it can be said that the point did not become apparent to the respondent until leading counsel began preparation for the skeleton argument due on 5 June 2026 when the respondent had expressly drawn attention to this very point almost exactly one year earlier.[9]Thirdly, however, the Court is required to have regard to all the circumstances of the case. The point raised – whether Mr Tasib falls within the scope of Article 1 of the Convention, and so has rights guaranteed by Article 8, if he was outside the United Kingdom at the time the relevant decision was taken – is an important one. It is a point of law, and no further evidence is required to deal with the issue. Further, the appellant does not object to an extension of time or to the point being considered by this Court. In those circumstances, I would grant an extension of time for filing the respondent’s notice. I would also grant permission to allow the respondent to rely on this issue even though the point was not raised in the Court below. This Court has a discretion to permit that and, in the present case, the issue is one of law, there is no need for further evidence to be adduced, and it is not suggested that the hearing in the court below would have been conducted differently if this point had been raised there: see generally Ahmad v Secretary of State for the Home Department [2025] 1 WLR 4368 and the cases cited therein at paragraph 65. The parties had time to prepare written skeleton arguments on the issue and it was dealt with fully in oral argument. THE LEGAL FRAMEWORK Leave to enter and remain in the United Kingdom

THE LEGAL FRAMEWORK

[10]Section 1(1) of the Immigration Act 1971 (“the 1971 Act”) provides that persons with a right of abode (essentially, British citizens and a limited number of other persons) are free to live in, and come and go into and from, the United Kingdom. Section 1(2) provides that persons who do not have a right of abode (essentially persons who are not British citizens) may live and work in the United Kingdom by permission and subject to regulation.[11]Subject to immaterial exceptions, a person who is not a British citizen also requires leave to enter the United Kingdom. The person may be given leave to enter and remain in the United Kingdom for a limited or an indefinite period. The Secretary of State is required to lay before Parliament statements of the rules laid down by him as to the practice to be followed in the regulation of entry and stay in the United Kingdom. See generally section 3(1) of the 1971 Act.[12]The power to give or refuse leave to enter the United Kingdom is exercisable by immigration officers and to give leave to remain in the United Kingdom by the Secretary of State: see section 4 of the 1971 Act. Immigration officers are persons appointed by the Secretary of State, or the Secretary of State may arrange with the Commissioners of Customs and Excise for customs and excise officials to act as immigration officers under the 1971 Act: see paragraph 1(1) of Schedule 2 to the 1971 Act. Paragraph 1(3) provides, so far as material that: “(3) In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State...”.[13]Entry clearance officers may also grant entry clearance to persons abroad who are intending to travel to the United Kingdom. Entry clearance is defined in section 33 of the 1971 Act as “a visa, entry certificate or other document which in accordance with the immigration rules, is to be taken as evidence… of a person’s eligibility… for entry into the United Kingdom”. Previously, leave to enter had still to be granted by an immigration officer when the person came to the United Kingdom. Section 3A(3) of the 1971 Act provides that the Secretary of State may by order prescribe that an entry clearance is to have effect as leave to enter the United Kingdom. Article 2 of the Immigration (Leave to Enter and Remain) Order 2000 (“the Order”) provides that an entry clearance complying with the requirements of article 3 “shall have effect as leave to enter the United Kingdom”.

Deportation

[14]The 1971 Act provides for a person to be liable for deportation in certain circumstances. The material provision in section 3(5) provides that: “(5) A person who is not a British citizen is liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good…..”. (a) the Secretary of State deems his deportation to be conducive to the public good…..”.[15]Section 5 provides for the making of a deportation order in respect of a person liable for deportation. Such an order requires a person to leave the United Kingdom, prohibits him from re-entering and also invalidates any existing leave to enter or remain. Section 5(1) provides that:
“5. Procedure for, and further provision as to deportation. (1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and 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 or while it is in force.”
[16]Additional provision is made for foreign criminals by the UK Borders Act 2007 (“the 2007 Act”). A foreign criminal is, broadly, a person who is not a British citizen and has been convicted in the United Kingdom of a criminal offence and been sentenced to at least 12 months’ imprisonment (section 32(1) of the 2007 Act). Parliament has provided that, subject to certain exceptions, the deportation of a foreign criminal is conducive to the public good (so that a person is liable to deportation) and has imposed a duty on the Secretary of State to make a deportation order. That appears from section 32(4) and (5) of the 2007 Act which provide that:
“(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”
[17]Section 33(1) and (7) of the 2007 Act provides, so far as material:
“(1) Section 32(4) and (5)– (a) do not apply where an exception in this section applies (subject to subsection (7) below), and ….. (7) The application of an exception– (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4.” (a) do not apply where an exception in this section applies (subject to subsection (7) below), and ….. (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4.”
[18]Section 33(2) sets out, currently, seven exceptions. The material exception in the present case is exception 1 in section 33(2)(a) which provides that: “(2) Exception 1 is where removal of the foreign criminal in pursuance of a deportation order would breach – (a) a person’s Convention rights…”. (a) a person’s Convention rights…”.[19]Convention rights are the rights defined in section 1 of, and set out in Schedule 1 to, the Human Rights Act 1998 (“the 1998 Act”). They include Article 8 of the Convention. Deportation in such a case continues to be conducive to the public good and the Secretary of State may, but is not obliged to, make a deportation[20]For completeness, Article 8 of the Convention provides that:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[21]A person may make a human rights claim, that is a claim that removal from the United Kingdom would breach a Convention right. A person may appeal to the First-tier Tribunal against the refusal of a human rights claim on the ground that removal would be unlawful as it would be incompatible with a Convention right: see sections 82(1)(b) and 84(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).

Authority-to-Carry Schemes

[22]Part 4 of the 2015 Act deals with the making of schemes which require a carrier to seek authority from the Secretary of State before carrying a person by air, sea or rail to or from the United Kingdom. Section 22 provides, so far as material, that:
“22. Authority-to carry-schemes (1) The Secretary of State may make one or more schemes requiring a person (a “carrier”) to seek authority from the Secretary of State to carry persons on aircraft, ships or trains which are— (a) arriving, or expected to arrive, in the United Kingdom, or (b) leaving, or expected to leave, the United Kingdom. A scheme made under this section is called an “authority-to-carry scheme”. (2) An authority-to-carry scheme must specify or describe— (a) the classes of carrier to which it applies (which may be all carriers or may be defined by reference to the method of transport or otherwise), (b) the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise), and (c) the classes of passengers or crew in respect of whom authority to carry may be refused. (3) An authority-to-carry scheme may specify or describe a class of person under subsection (2)(c) only if it is necessary in the public interest. (4) The Secretary of State may make different authority-to-carry schemes for different purposes and in particular may make different schemes for different types of carrier, journey or person. (5) An authority-to-carry scheme must set out the process for carriers to request, and for the Secretary of State to grant or refuse, authority to carry, which may include— (a) a requirement for carriers to provide specified information on passengers or crew by a specified time before travel; (b) a requirement for carriers to provide the information in a specified manner and form; (c) a requirement for carriers to be able to receive, in a specified manner and form, communications from the Secretary of State relating to the information provided or granting or refusing authority to carry….” (a) the classes of carrier to which it applies (which may be all carriers or may be defined by reference to the method of transport or otherwise), (b) the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise), and (c) the classes of passengers or crew in respect of whom authority to carry may be refused. (a) a requirement for carriers to provide specified information on passengers or crew by a specified time before travel; (b) a requirement for carriers to provide the information in a specified manner and form; (c) a requirement for carriers to be able to receive, in a specified manner and form, communications from the Secretary of State relating to the information provided or granting or refusing authority to carry….”
[23]Section 23(1) provides that an authority to carry scheme comes into force “in accordance with regulations made by the Secretary of State by statutory instrument”. A draft of the regulations and the scheme must be laid before Parliament and approved by a resolution of each House before the Secretary of State may make the regulation (see section 23(2) of the 2015 Act). Section 24 provides power for the Secretary of State to make regulations imposing penalties for breaching the requirements of an authority to carry scheme.

The Scheme

[24]The Secretary of State made the current authority-to-carry scheme (“the Scheme”) in 2023. It was brought into force by the Authority to Carry and Civil Penalties Regulations 2023. Paragraphs 1 to 4 of the Scheme set out the context in which the Scheme was made and would operate. Paragraph 2 says that:
“2. Operating an authority to carry scheme is an important element of the UK’s border security, aviation security and wider transport security arrangements. The threat from terrorism is real and ongoing. There is a need to prevent or disrupt the exit from, entry to or return to the UK of individuals who pose a terrorism-related threat, or other threat to the UK or its interests. This includes mitigating the threat of an attack on aircraft operating to the UK (or onward from the UK) or an attack on a ship or international train operating to the UK.”
[25]Paragraph 4 explains that a visa regime can be used as a means of preventing a person travelling to the United Kingdom if he poses a threat to the United Kingdom. It notes, however, that it will not always be apparent that a visa has been cancelled. Paragraph 6 set out the purpose of the Scheme in the following terms:
“6. The purpose of this Scheme is to prevent certain individuals from travelling to or from the UK when that it is necessary in the public interest.”
[26]Paragraphs 7 to 13 specify the classes of carrier, and the classes of passenger to which the Scheme applies. Paragraph 14 deals with the person in respect of whom an authority to carry may be refused. The material part is that part of paragraph 14(f) which deals with individuals in respect of whom “the Secretary of State is in the process of making the subject of a deportation order under the Immigration Act 1971”. For completeness, I set out the whole of paragraph 14 of the Scheme which provides that:
“14. Authority to carry to the UK may be refused in respect of the following persons: a) Individuals who are assessed by the Secretary of State to pose a direct threat to the security of any aircraft, ship or train or persons or property on board; b) Individuals who are the subject of a Temporary Exclusion Order made under Chapter 2 of Part 1 of the Counter-Terrorism and Security Act 2015; c) Individuals who are the subject of UK or UN travel restrictions and are excluded persons for the purposes of section 8B of the Immigration Act 1971 (unless, by virtue of either an exemption (in respect of a section 8B(5) instrument), or an exception granted or direction given under Regulations made under section 15(4) of the Sanctions and Anti-Money Laundering Act 2018, the individual is permitted to make the journey in respect of which authority is sought); d) Individuals who are the subject of an exclusion order under the Immigration (European Economic Area) Regulations 2016, or in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order; e) Individuals who have been excluded from the UK by the Secretary of State, or in relation to whom the Secretary of State is in the process of making a decision that the individual be excluded from the UK; f) Individuals who are the subject of a deportation order or whom the Secretary of State is in the process of making the subject of a deportation order under the Immigration Act 1971 or who were subject to deportation proceedings but left the UK before those proceedings concluded; g) Individuals who have been or would be refused entry clearance or a visa under the immigration rules; ga) Individuals whose entry clearance or visa has been cancelled or revoked under the immigration rules, or whose indefinite leave to enter or remain has been revoked under section 76 of the Nationality, Immigration and Asylum Act 2002; h) Individuals who have been or would be refused an ETA under the immigration rules, and have not subsequently been granted entry clearance or a visa; ha) Individuals whose ETA has been cancelled under the immigration rules and have not subsequently been granted entry clearance, a visa or permission to stay; i) Individuals who have been refused leave to enter the UK before their departure for, or in the course of their journey to, the UK under article 7 of the Immigration (Leave to Enter and Remain) Order 2000; j) Individuals who are using an invalid travel document that is, or appears to be, a passport or other document which has been lost, stolen, cancelled or revoked, has expired, was not issued to them, was not issued by the government or authority by which it purports to have been issued or has undergone an unauthorised alteration, or is otherwise not valid for international travel, and k) Individuals whose travel document includes, or the Secretary of State has reasonable grounds to believe includes entry clearance, a visa, a permission or an endorsement that is false or was not issued by the government or authority by which it purports to have been issued or has undergone an unauthorised alteration.” a) Individuals who are assessed by the Secretary of State to pose a direct threat to the security of any aircraft, ship or train or persons or property on board; b) Individuals who are the subject of a Temporary Exclusion Order made under Chapter 2 of Part 1 of the Counter-Terrorism and Security Act 2015; c) Individuals who are the subject of UK or UN travel restrictions and are excluded persons for the purposes of section 8B of the Immigration Act 1971 (unless, by virtue of either an exemption (in respect of a section 8B(5) instrument), or an exception granted or direction given under Regulations made under section 15(4) of the Sanctions and Anti-Money Laundering Act 2018, the individual is permitted to make the journey in respect of which authority is sought); d) Individuals who are the subject of an exclusion order under the Immigration (European Economic Area) Regulations 2016, or in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order; e) Individuals who have been excluded from the UK by the Secretary of State, or in relation to whom the Secretary of State is in the process of making a decision that the individual be excluded from the UK; f) Individuals who are the subject of a deportation order or whom the Secretary of State is in the process of making the subject of a deportation order under the Immigration Act 1971 or who were subject to deportation proceedings but left the UK before those proceedings concluded; g) Individuals who have been or would be refused entry clearance or a visa under the immigration rules; ga) Individuals whose entry clearance or visa has been cancelled or revoked under the immigration rules, or whose indefinite leave to enter or remain has been revoked under section 76 of the Nationality, Immigration and Asylum Act 2002; h) Individuals who have been or would be refused an ETA under the immigration rules, and have not subsequently been granted entry clearance or a visa; ha) Individuals whose ETA has been cancelled under the immigration rules and have not subsequently been granted entry clearance, a visa or permission to stay; i) Individuals who have been refused leave to enter the UK before their departure for, or in the course of their journey to, the UK under article 7 of the Immigration (Leave to Enter and Remain) Order 2000; j) Individuals who are using an invalid travel document that is, or appears to be, a passport or other document which has been lost, stolen, cancelled or revoked, has expired, was not issued to them, was not issued by the government or authority by which it purports to have been issued or has undergone an unauthorised alteration, or is otherwise not valid for international travel, and k) Individuals whose travel document includes, or the Secretary of State has reasonable grounds to believe includes entry clearance, a visa, a permission or an endorsement that is false or was not issued by the government or authority by which it purports to have been issued or has undergone an unauthorised alteration.”

THE FACTUAL BACKGROUND

[27]The facts material to this appeal can largely be taken from the judgment below although supplemented in part by the documentary evidence. The material facts are as follows.

The Appellant and his family

[28]Mr Tasib is a national of Pakistan, born in 1992. He came with his family to live in the UK in 1998. He was granted indefinite leave to remain on 25 June 2006. He has lived here since 1998. He left school at the age of 17 and worked in his uncle’s business, buying and selling cars.[29]He is married to a British Citizen whom he met at school. She lived with Mr Tasib in his family home. She provided financial support to his family and her own family from her employment at a local authority.[30]Mr Tasib’s mother, father, three sisters and brother live locally. One of his sisters is disabled and it is said that Mr Tasib cares, or helps care, for her. They are all British citizens. Mr Tasib has never applied for British citizenship. He says that he has no family in Pakistan.

The Appellant’s criminal convictions

[31]On 18 October 2013, Mr Tasib pleaded guilty to being in charge of a motor vehicle with excess alcohol for which a fine was imposed. On 21 February 2014, he pleaded guilty to dangerous driving, driving a motor vehicle with excess alcohol, using a vehicle while uninsured, driving without a licence, and resisting a constable. He received an overall sentence of eight months' imprisonment, suspended for 19 months, and was disqualified from driving for three years. On 20 February 2015, he pleaded guilty to driving while disqualified. The suspended sentence was activated and he was sentenced to ten weeks' imprisonment.[32]On 9 February 2018, Mr Tasib pleaded guilty to further offences. He pleaded guilty to possession of heroin with intent to supply, possession of cocaine with intent to supply, dangerous driving, using a vehicle while uninsured, and driving without a licence. On 5 November 2018, he was sentenced in the Crown Court at Cambridge, receiving an overall sentence of 52 months' imprisonment.[33]The judge's sentencing remarks show that Mr Tasib was responsible for transporting cocaine and heroin from Bradford into the Cambridge area. In return, he was to be credited £300 against money that he owed for drugs that he had obtained and taken. He was the driver of a car containing the drugs in a number of separate bags. When chased by police, he discarded the drugs and tried to avoid apprehension by engaging in what the judge described as “extremely serious, extremely dangerous and sustained driving”. The judge noted in particular that, before trying to effect his escape, Mr Tasib drove in the direction of a police officer who had to jump out of the way in order that she should not be hit.

The Proposed Deportation

[34]As a non-British national, convicted in the United Kingdom of offences for which he had been sentenced to 52 months’ imprisonment, Mr Tasib is a foreign criminal within the meaning of the 2007 Act. He was liable to deportation as section 32(4) provided for that. Section 32(5) also provided that the Secretary of State should make an order to deport him (subject to exceptions). Due to an administrative error by HM Prison and Probation Service, the Secretary of State was unaware that Mr Tasib had accrued criminal convictions until she was informed of it by Mr Tasib himself when he applied for, and was provided with, a replacement biometric residence permit on 15 February 2024.[35]Officials acting on behalf of the Secretary of State then took until 20 August 2024 to determine that Mr Tasib’s offences satisfied the criteria for rendering him liable to deportation. For reasons that are unexplained, nothing was communicated to Mr Tasib about his liability to deportation at that stage.[36]On 16 September 2024, Mr Tasib travelled to Pakistan with his wife to visit his wife's father from whom she was estranged and who had suffered a serious heart attack. His wife also wished to travel to attend a funeral.[37]On 25 September 2024, and unaware that Mr Tasib was not at that date present in the United Kingdom, officials sent a letter and a notice of decision to Mr Tasib at his home address. The material parts of the letter said this:
“I am writing about the immigration status of Mr Sohail Tasib, who is liable to deportation. Please find enclosed the following documents: a notice of decision to make a deportation order (ICD.4936). One-Stop Notice, Statement of Reasons leaflet, Disclaimer form and a Confirmation of Conveyance. You are not required to reply to this decision. Should you wish to raise reasons why you should not be deported, you must make any representations in writing to the Home Office. This must be done within 28 days from the date of service of the decision notice enclosed with this letter.”
[38]The accompanying notice of decision was headed “Decision to deport pursuant to the Immigration Act 1971 and the UK Borders Act 2007”. The notice contained a Part 1 entitled “Deportation Decision”. That summarised Mr Tasib’s criminal conviction of 9 February 2018. It said that:
“…..Under section 32(5) of the UK Borders Act 2007, the Secretary of State must make a deportation order in respect of a foreign criminal, unless one or more of the exceptions set out in section 33 of the same Act applies. You have not shown that any of the exceptions apply to you. The deportation of a foreign criminal is conducive to the public good. The public interest in your deportation is further strengthened by your previous 3 convictions and 8 offences. Offences include: 2 offences relating to police/courts/prisons and 6 miscellaneous offences. What this means for you If a deportation order is made against you then you will be required to leave the United Kingdom and you are prohibited from returning whilst the order is in force. The deportation order will also invalidate any leave to enter or remain in the United Kingdom. The order will remain in force until it is revoked. Right of Appeal There is no right of appeal against this decision.”
What this means for you Right of Appeal There is no right of appeal against this decision.”

Right of Appeal

[39]Pausing there, although the notice says that Mr Tasib had not shown that any of the exceptions applied for him, he had not been told about the proposed deportation and not been asked to show whether the exceptions applied. Part 2 of the notice gave further information on Mr Tasib’s immigration history and informed him that, if a deportation order were made, it would invalidate his indefinite leave to remain in the United Kingdom.[40]Finally, Part 3 of the notice dealt with next steps. It told Mr Tasib that he had no right to appeal. It stated that the Secretary of State “proposes to give directions for your removal to Pakistan”. It also said that if Mr Tasib wished to give reasons why he should not be deported, he should do so within 28 days, and those should be supported with evidence if at all possible. It also said:
“If you inform us of any reasons why you should not be deported from the United Kingdom, or if you have already made representations which have not been considered in this decision, further consideration will be given to your circumstances and we will advise you of whether or not your deportation will be pursued. If it is decided that you do not qualify to remain in the United Kingdom, you will be advised of whether you have the right to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) under section 82 of the Nationality, Immigration and Asylum Act 2002.”
[41]The letter was sent to the address where Mr Tasib was living with his mother and father. Mr Tasib was not there when it arrived as he was in Pakistan. He was made aware of this decision by his father who telephoned him and sent pictures of the decision by WhatsApp. In order to deal with the decision, Mr Tasib instructed solicitors and on their advice changed his travel arrangements with the intention of returning to the United Kingdom immediately.

The refusal of authority to carry

[42]Mr Tasib and his wife booked a flight from Sialkot Airport, in Pakistan for 28 September 2024. The airline made a request to the Secretary of State for authority to carry Mr Tasib to the United Kingdom[43]On 27 September 2024, the respondent’s records show that officials within the Home Office considered the request for authority to carry. The notes show that the officials were aware that Mr Tasib had not been in the country when the letter and notice of a deportation decision were sent to him. The notes show that the official concerned contacted the case officer responsible but he was out of the office. The request was referred to a higher officer who authorised the refusal of authority to carry in accordance with paragraph 14(f) of the Scheme. That refusal was sent by e-mail to the relevant airline in a document headed “Urgent – Authority to Carry Refused”. The refusal said that the Home Office confirmed that authority to carry Mr Tasib had been refused in accordance with the Scheme. The e-mail provided a form of words that could be given to the passenger, namely:
“Authority to Carry Refused The UK Home Office has confirmed that we do not have authority to carry you to the UK. This means we must refuse to board you. We must comply with this requirement, or we will be liable under UK Legislation. If you believe that you have been incorrectly identified or have any questions, you should contact the Home Office Pre-Departure Advice line by telephone on [a number was provided] or in writing to: [an e-mail address was provided].”
[44]Mr Tasib and his wife went to the airport on 28 September 2024. They cleared security and approached the airline desk in order to get their boarding passes. They were asked to step aside and go to another desk. They were informed by a member of the airline staff that the Home Office had sent an e-mail to the airline asking them not to accept him onto the flight. Mr Tasib asked to see the e-mail but was told it was confidential. The airline staff member gave him the e-mail address.[45]On the same day, at 18.03, Mr Tasib e-mailed the address he had been given. He received a response timed at 18.58 stating that the e-mail had been passed to the officer responsible for handling his enquiry. It said that the Home Office had carefully reviewed the original decision and that decision stood. It provided a telephone number and online and e-mail contact addresses.[46]At 19.18, Mr Tasib sent another e-mail. It said this:
“Good afternoon, I have not been deported. I received a letter which stated I have 28 days to appeal. I have started the appeal process in the UK with my solicitors. I can send you the letter and any proof you require. I can send you a copy of my ILR, my wife’s passport! Anything you need. I have an ILR in the UK, so I don’t understand why I’m being held. My wife is a UK citizen, we have nowhere to go. We’re fearing for our lives! What can we do? Please can you guide us. Thank you”
Thank you”[47]In response to that polite, urgent, and some might think heartfelt request for help, and in circumstances where Mr Tasib was unable to leave Pakistan with his wife, the Home Office replied as follows: “Thank you for your enquiry, we will aim to respond within 10 working days”.[48]No further response was sent by the Home Office. Mr Tasib instructed solicitors and they sent a pre-action protocol letter to the Home Office on 18 October 2024. The Home Office replied on 19 November 2024 stating that they hoped to provide a response by 29 November 2024. Meanwhile, Mr Tasib and his wife remained in Pakistan – he because the Home Office would not let an airline carry him to the United Kingdom and his wife because she stayed with her husband.[49]It is difficult not to be highly critical of the way in which the Home Office dealt (or, more accurately, did not deal) with Mr Tasib’s request. One of the grounds of claim for judicial review had been that procedural fairness required that Mr Tasib be given the opportunity to make representations before the refusal of authority to carry was made. Permission to apply on that ground was refused. I understand why. Given that decisions on requests for authority to carry have to be taken urgently, often on the day of, or shortly before, the flight, such a process might not be practical. There might be other reasons to do with the nature of a refusal in a particular case which make providing a prior opportunity to make representations impracticable. In any event, this ground was not renewed as part of the appeal before us.[50]I would, however, make the following observation. A refusal of authority to carry is, of course, one decision relating to one flight. But in reality, as was accepted in argument, that decision would be repeated. If an individual returned to the airport and sought to board another flight, authorisation to carry would be requested and would in all likelihood be refused again. Refusal of authority to carry may be conveyed in a single decision relating to a particular flight but in reality it will have continuing consequences. In those circumstances, the Home Office should have some means by which an individual can make representations and for an official to consider those representations and decide whether or not to maintain the refusal of authorisation. If the Home Office does not make some such arrangements, it may well face a claim for judicial review contending that the failure to authorise is unlawful (as happened, successfully, for example, in R (FD) v Secretary of State for the Home Department [2025] EWHC 3291 (Admin) – permission to appeal was granted on other grounds but not on the finding that the decision to refuse authorisation was unlawful). In the present case, there is no issue before this Court (nor in the court below) as to whether the failure to consider Mr Tasib’s request to be allowed to return was unlawful on domestic grounds (I deal with Article 8 of the Convention below). In the event, matters were overtaken by the subsequent events now described.

Subsequent Events

[51]Mr Tasib remained in Pakistan and his wife remained with him. On 20 January 2025, the Home Office wrote to his solicitors (different solicitors from those originally instructed). The letter said this:
“We are aware that the airline was refused authority to carry your client to the UK on 28 September 2024 under the Authority to Carry Scheme 2023. In light of your client’s criminality the Secretary of State is considering making an exclusion decision against your client and cancelling his indefinite leave to remain (ILR). If there are any reasons why your client considers an exclusion decision should not be made against him, or his ILR cancelled, please submit these along with any supporting evidence, within 5 working days of the date of this letter.”
[52]There was subsequent correspondence about the time for making representations. Ultimately, on 13 June 2025, Mr Tasib was sent two letters.[53]The first letter said, so far as material, that:
“I am writing to tell you that the Secretary of State has personally directed that you should be excluded from the United Kingdom (UK) on the grounds that your exclusion is conducive to the public good. What this means for you You have been excluded from the UK. You will be refused entry on arrival. Carriers may be refused authority to carry you to the UK because, as an individual who has been excluded from the UK by the Secretary of State, you are a person in respect of whom authority to carry to the UK may be refused under the Authority to Carry Scheme 2023. The Scheme requires carriers, such as airlines, to seek authority from the Secretary of State to carry persons on aircraft, ships or trains which are arriving (or expected to arrive in) the UK. You were previously within the scope of the Scheme as an individual whom the Secretary of State was in the process of making the subject of a deportation order under Immigration Act 1971. You do not have a right of appeal or administrative review against this decision but it may be reviewed if new information comes to light.”

What this means for you

[54]That letter also included an 11 page attachment headed “Reasons for decision”. That gave detailed reasons for the decision. It also included a section dealing with Convention rights. The first sentence began by stating that the Convention did not apply as Mr Tasib was outside the United Kingdom for the purposes of Article 1 of the Convention. This is the issue raised in the respondent’s notice. Nevertheless, the reasons dealt with the substance of the claim that not allowing Mr Tasib to be in the United Kingdom involved a breach of his right to respect for his private and his family life. The reasons concluded by saying that any interference in his family life would be justified and proportionate under Article 8(2) of the Convention and that there was no interference with his private life or, if there were, it was justified under Article 8(2) of the Convention.[55]Also on 13 June 2025, an immigration enforcement officer wrote to Mr Tasib and said this:
“Your indefinite leave to remain in the United Kingdom (UK) has been cancelled with immediate effect. What this means for you You do not have permission to stay in the UK. You do not have a right of appeal or administrative review against this decision.”
What this means for you You do not have a right of appeal or administrative review against this decision.”

The present circumstances

[56]Mr Tasib remains in Pakistan. His wife remained with him in Pakistan until 22 July 2025. She had become pregnant and was due to give birth in December 2025. Due to medical difficulties, Mr Tasib and his wife decided that the wife should return to the United Kingdom to access necessary medical treatment and support in relation to the pregnancy. Their daughter was born in December 2025. Mr Tasib has been separated from his wife and child and has only seen his daughter once when they were able to travel to see him.[57]We were told that Mr Tasib has appealed to the First-tier Tribunal pursuant to section 82 of the 2002 Act against what he asserts is a refusal of his human rights claim by the exclusion direction and cancellation of his indefinite leave to remain. We were told, but have not seen the pleadings or decision, that the First-tier Tribunal has accepted that it has jurisdiction and it is to hold a case management hearing in August 2026. We were told, but have not seen the relevant documents, that the Secretary of State contended that the First-tier Tribunal did not have jurisdiction and indicated she might well seek to appeal against any final decision of the First-tier Tribunal on this point.

The judgment

[58]Against that background, I deal with the judgment of the judge in relation to the four issues that were before her. The first issue is whether the circumstances of Mr Tasib’s case fell within the material part of paragraph 14(f) of the Scheme, that is that Mr Tasib was an individual “whom the Secretary of State is in the process of making the subject of a deportation order” under the 1971 Act. Her essential conclusions come at paragraph 125 where she said (ATC referring to the Authority-to-Carry Scheme):
“125. Unlike Cavanagh J, I have found that Ground 2 is worthy of permission. I agree nevertheless with his analysis that, by the time of the ATC decision, the Secretary of State had decided to take the necessary steps to deport the claimant, albeit subject to consideration of submissions to the contrary.

(f) ”

[59]On the second issue, whether there had been a breach of Article 8 of the Convention, it is necessary in view of the submissions, to set out the relevant part of the judgment in full. The judge said: “132. As I have mentioned, there is no challenge to the exclusion decision on article 8 grounds. The claimant properly acknowledges that any such challenge would and should be determined by the FTT where he has already lodged an appeal. The article 8 challenge under Ground 4 is limited to the ATC decision. 133. In my judgment, the key question under article 8 is whether the ATC decision was or was not a proportionate interference with the claimant's article 8 rights. I was not addressed on the legal principles governing this court's function and approach to proportionality. Mr Halim submitted that the court is the primary decision-maker. That is not a strictly accurate statement of the law. More accurately, the court does not take on the function of the executive which remains the primary decision-maker. It will make its own assessment of proportionality but it will do so in the contexts of: i. The statutory scheme under consideration; and ii. The judgments and assessments of a primary decision-maker with special institutional competence (Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30, [2025] 3 W.L.R. 346, paras 120-125). 134. I shall consider these two contexts in turn.(i) Statutory scheme under consideration 135. The statutory scheme is contained in sections 22 and 23 of the CTSA. Section 22 plainly confronts an interference with rights because it authorises interference by the Government with a person's entry to the UK. The statute itself, however, constrains any such interference because a class of person may be included in an authority-to-carry scheme if (and only if) the inclusion of that class is "necessary in the public interest." Parliament has therefore struck the balance between individual rights and the public interest, which is the essence of the proportionality exercise. I see no reason for this court not to respect the balance struck by Parliament. That does not mean that the court is not taking its own decision on proportionality: it means that the court takes its decision against the backdrop of the respective roles of the legislature and the judiciary.(ii) Institutional competence 136. In terms of the substance of the article 8 claim, I reiterate that I am concerned only with the proportionality of the ATC decision. That is a significantly narrower question than whether indefinite exclusion is proportionate. As Ms Barnes submitted, the ATC decision prevented the claimant from exercising private and family rights in the UK while the Secretary of State decided whether to exclude the claimant indefinitely. The ATC decision was not intended to have permanent effect in respect of the claimant but to be superseded (subject to a lawful decision-making process) by some other executive action. The degree of interference with article 8 rights attributable to a superseded ATC decision is not as great as Mr Halim submitted. Permanent separation from family, for instance, is the consequence of the exclusion decision which is presently under appeal. 137. Even if it is wholly responsible for the interference with article 8 rights, I would not regard the ATC decision as disproportionate. On the one hand, the claimant moved away from Pakistan at the age of five. He entered the UK legally with his parents. He has spent his formative years, and nearly his whole life, in the UK. He met his British wife at school. Their marriage is longstanding and cannot possibly be described as anything other than a genuine and lasting commitment. The claimant's family and community ties are plainly in the UK. The Secretary of State's own delay in dealing with the claimant's immigration status after his release from prison reduces (albeit to a modest degree) the public interest in keeping him out of the UK. 138. On the other hand, the claimant has a lengthy criminal record that was understandably described as "appalling" by the judge who sentenced him for the 2018 offences. As I have mentioned, one of the 2018 offences involved driving a car at a female police officer. The judge's sentencing remarks say that if the officer had not jumped out of the way, she would have been hit. The risk of her being hit is demonstrated by the judge's remark that the police officer was "within striking distance" of the claimant's vehicle because she hit out at the vehicle with her baton. The judge also observed that the claimant "very nearly came into collision with an HGV lorry… [and] with an oncoming vehicle." This was serious offending putting life at risk. 139. As for the supply of drugs, the judge's sentencing remarks demonstrate that the claimant's involvement with Class A drugs was not the result of simple naivety. The judge found that there were features of a significant role in drug dealing. The claimant had some awareness and understanding of the scale of the operation and was plainly trusted to carry a significant amount of drugs. He was involved with both heroin and cocaine, the societal dangers of which are well known. 140. The claimant departed from the UK voluntarily. As someone who is not a British citizen, he was subject to immigration control and could have had no proper expectation to the contrary. It was a coincidence that the claimant's visit to Pakistan and the Secretary of State's Stage 1 decision happened at the same time. That coincidence led to a chain of events which makes the claimant feel that he has been stranded outside the UK. However, it is the Secretary of State and not the court who is the custodian of the UK border. Paying appropriate respect to her institutional competence but taking the decision for myself, I have concluded that the risk to public safety posed by the claimant warranted the ATC decision pending further consideration of the claimant's case by the Secretary of State. The ATC decision was in all the circumstances a proportionate interference with the claimant's article 8 rights. 141. For these reasons, the ATC decision did not breach article 8. Ground 4 is refused. It remains open to the claimant to argue in the FTT, or in a fresh application to an entry clearance officer, that the indefinite exclusion of a long-settled migrant which prevents him from resuming private and family life in the UK is disproportionate (Ali v Upper Tribunal (Immigration and Asylum Chamber) [2024] EWCA Civ 372, para 59). ii. The judgments and assessments of a primary decision-maker with special institutional competence (Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30, [2025] 3 W.L.R. 346, paras 120-125).[60]On the third issue, the judge held that, as the refusal of authorisation under the Scheme was lawful, there was no basis on which Mr Tasib could claim that he had suffered an historic injustice when she made the exclusion direction.[61]On the fourth issue, the judge held that the power to exclude Mr Tasib was to be found in paragraph 1(3) of Schedule 2 to the 1971 Act.

THE FIRST ISSUE – THE PROPER INTERPRETATION OF PARAGRAPH 14(f) OF THE SCHEME

(f) OF THE SCHEME Submissions

[62]Mr Buttler KC, with Mr Halim, for Mr Tasib submitted that the Scheme was brought into force by regulations approved by a resolution of each House of Parliament. The Scheme was draconian in its effect as it prevented people, such as Mr Tasib, who had leave to enter or remain in the United Kingdom from travelling to the United Kingdom. He submitted that that called for a higher level of scrutiny when interpreting the provisions of the Scheme as compared with that accorded to the Immigration Rules.[63]Mr Buttler submitted that paragraph 14(f) included three categories of cases, namely(1) those subject to deportation orders(2) those for whom the Secretary of State was in the process of making a deportation order and(3) those who were subject to deportation proceedings but left the UK before those proceedings conclude. This case concerned category 2. He submitted that, in cases of automatic deportation concerning foreign criminals under the 2007 Act, there were essentially a number of stages, or questions to be answered, before a deportation order could be made. First, there was the question of whether a person was liable to deportation. Secondly, the Secretary of State had to invite representations to enable her to decide if any of the exceptions applied. Until that had been determined, it could not be said that a deportation order would be made. It could not, therefore, be said that the Secretary of State was in the process of making a deportation order as it was not known if she would make such an order.[64]That, Mr Buttler submitted, was consistent with the guidance on deportation. That treated stage 1 as the decision that the deportation of the individual was conducive to the public good. That decision letter should provide an opportunity for the individual to make representations. The guidance described stage 2 as consideration of the representations and obtaining the deportation order. It provided that, if no representations were received, the case worker “must consider whether to make a deportation order”. It also provides that, in relation to automatic deportation under the 2007 Act, a deportation order can be obtained following a stage 2 decision, that is a decision after consideration of the representations as to whether to make a deportation order. Mr Buttler submitted that category 2 in paragraph 14(f) only applied where the stage 2 decision to make a deportation order had been made and paragraph 14(f) only applied to the period between the stage 2 decision and the making of the order. He further submitted that that construction ensured fairness in cases such as the present where the individual was out of the country when a stage 1 decision was made and had not had the opportunity to make representations. If paragraph 14(f) did not apply at that stage, the individual would be able to return and make representations and could not be the subject of a refusal of authorisation. He further submitted that that was consistent with the third category in paragraph 14(f) of the Scheme. That applied where the individual was subject to deportation proceedings but left before the proceedings could be concluded (i.e. knowing that proceedings were in place).[65]Mr Dunlop KC, with Ms Williams, for the Secretary of State submitted that on the proper interpretation of paragraph 14(f), it was clear that the Secretary of State was in the process of making a deportation order. That was the purpose of sending the stage 1 decision. It was said to be a decision to make a deportation order. That also informed Mr Tasib of the right to make representations to seek to persuade the Secretary of State not to make a deportation order. That was all part of the process of making a deportation order.

Discussion and conclusion

[66]As a preliminary matter, this issue concerns the proper interpretation of words included in a scheme made by the Secretary of State in the exercise of a statutory power and which was brought into force by the passing of a resolution of each House of Commons. The proper approach to interpretation is to consider the words used (here, the words in paragraph 14(f) of the Scheme), read in the context of the Scheme as a whole, and the relevant enabling provisions in the 2015 Act. Further, words or phrases in the Scheme may refer to matters dealt with in other legislation. That legislation may provide the context for, and influence or determine the meaning of, words and phrases used in the Scheme. The task is to determine, objectively, what the words in the relevant part of the Scheme mean. In that regard, I doubt that the approach differs much, certainly not significantly, from either the approach to the interpretation of the Immigration Rules in Mahad v Entry Clearance Officer [2010] 1WLR 48 at paragraph 10, or indeed the interpretation of primary or secondary legislation identified in R (O) v Secretary of State for the Home Department [2023] AC 255, paragraphs 29–31.[67]Turning then to the wording of paragraph 14(f) of the Scheme, I accept that that paragraph deals with three categories, or groups of people, namely(1) those subject to deportation orders(2) those whom the Secretary of State was in the process of making the subject of a deportation order and(3) those who were subject to deportation proceedings but left the UK before those proceedings conclude. This appeal has been argued on the basis of whether Mr Tasib falls within the second category.[68]The second category deals with persons whom the Secretary of State “is in the process of making the subject of” a deportation order – not a person for whom the Secretary of State “is making a deportation order”. Two significant features are that paragraph 14(f) is referring to something “in the process” of happening and that something is “making a person subject to a deportation order” – not making a deportation order. The reference to the process of making a deportation, is properly understood, a reference to the process envisaged by the relevant statute for making a person subject to a deportation order.[69]In the case of non-automatic deportations (that is, persons other than foreign criminals) the process is contained in sections 3 and 5 of the 1971 Act. Section 3(5) provides that a person will be liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. Once the person is liable to be deported, the Secretary of State may make a deportation order, as appears from section 5 of the 1971 Act, which is headed “Procedure for, and further provision as to, deportation”. As a minimum, once the Secretary of State has deemed the person’s deportation to be conducive to the public good, he is in the process of making a person subject to a deportation order. Other things may happen, and other decisions may be taken, which might result in the Secretary of State not actually making a deportation order. The person may claim asylum or make a human rights claim. Consideration of such matters, however, is part of the process of making a person subject to a deportation order.[70]In relation to automatic deportation, that is, in cases involving a foreign criminal, Parliament has determined that the deportation of the foreign criminal is conducive to the public good, subject to certain exceptions. Parliament has therefore determined that such persons are liable to deportation. Parliament has imposed a duty to make a deportation order, subject to certain exceptions. If an exception applies, then the Secretary of State may (but not must) make a deportation order. If exception 1 (and 4) applies, deportation remains conducive to the public good and the Secretary of State may, but is not obliged, to make a deportation order. If the other exceptions apply, there is no assumption that deportation is, or is not, conducive to the public good. See sections 32(4) and (5) and section 33(7) of the 2007 Act.[71]The reference in paragraph 14(f) to “in the process of making a person subject to a deportation order” is a reference to the process envisaged by section 32 and 33 of the 2007 Act. That process includes consideration of such matters as whether or not an exception applies. If there is no suggestion that an exception applies, or if, as in the present case, the only exception relied upon and being considered is exception 1, then the Secretary of State is in the process of making a person subject to a deportation order when considering such matters. It is not necessary to determine on this appeal what the position would be if the Secretary of State determines that an exception applies which has the result that there is no assumption that deportation is in the public interest (so a further decision on deportation is needed before the person is liable to deportation). My provisional view, however, is that the Secretary of State is still in the process of making the person subject to a deportation order in those circumstances.[72]That interpretation of the relevant words in paragraph 14(f) is supported by consideration of paragraph 14(f) as a whole. The paragraph is concerned with those who are subject to a deportation[73]That interpretation is also supported by the context of the Scheme and the purpose underlying the statutory provisions enabling such a scheme to be made. The aim is to enable the Secretary of State to require authorisation for the carrying of passengers but only where that is in the public interest (see section 22(1), (2) and (3) of the 2015 Act). That will be in the public interest, for example, where a person’s presence in the United Kingdom is not conducive to the public good. Where, as here, a person is liable to deportation because his presence is not conducive to the public good, and the Secretary of State is in the process of making the person subject to a deportation order, but the person is for some reason outside the United Kingdom, an interpretation of paragraph 14(f) which requires authorisation for that person to be carried to the United Kingdom is consistent with the purpose of the statutory provisions and the Scheme. It enables the Secretary of State to prevent that person travelling to the United Kingdom. The Scheme does not distinguish between situations where a decision to make a deportation order has been made but for some reason the order itself remains to be made – and situations where the person is liable, or considered liable, to deportation and the Secretary of State is in the process of making the person subject to a deportation order (or, as the third category, the person has left the United Kingdom before the Secretary of State has concluded the deportation process). In each case, the public interest at that stage in preventing the person from travelling to the United Kingdom is the same.[74]On the facts of this case, the Secretary of State was in the process of making Mr Tasib the subject of a deportation order. Mr Tasib was a foreign criminal. He was not a British citizen and he had been convicted in the United Kingdom of an offence and sentenced to four years’ and four months’ imprisonment. In those circumstances, section 32(4) applied and his deportation was conducive to the public good. In that context, the Secretary of State sent a letter and a notice on 25 September 2024. That stated that Mr Tasib was a person who was liable to deportation and enclosed a notice of a decision to make a deportation order. The notice itself referred to the fact that the Secretary of State was obliged to make a deportation order and also recorded that the deportation of a foreign criminal was conducive to the public good. The notice gave Mr Tasib the opportunity to make representations as to why he could or should not be deported from the United Kingdom. It said that those representations would be considered and that Mr Tasib would be advised whether or not his deportation would be pursued. In those circumstances, it is clear that the Secretary of State was “in the process of making [Mr Tasib] the subject of a deportation order”.[75]For those reasons, I would decide the first issue against Mr Tasib. THE FIFTH ISSUE – THE APPLICABILITY OF ARTICLE 8 OF THE CONVENTION

THE FIFTH ISSUE – THE APPLICABILITY OF ARTICLE 8 OF THE

[76]It is convenient to take the fifth issue next. That is the issue raised in the respondent’s notice, namely that the court had no jurisdiction under the 1998 Act to consider whether the refusal of authorisation to carry Mr Tasib was incompatible with his rights under Article 8 of the Convention. Submissions[77]Mr Dunlop for the Secretary of State submitted that the Convention is territorial. It secures rights for those within the territory of the United Kingdom (save in exceptional circumstances which did not apply in this case). If at some future stage, Mr Tasib applied for entry clearance to come to join his family in the United Kingdom in the future, that may raise issues relating to Article 8. The decision to refuse authorisation to travel, however, was taken at the time that Mr Tasib was outside the United Kingdom and Article 8 did not apply to that decision. He relied upon the decision in R3 v Secretary of State for the Home Department [2023] EWCA Civ 169. He submitted that the decision of this Court in R (Ali) v Secretary of State for the Home Department [2024] 1 WLR 5097 was inconsistent with the decision in R3. Further, he submitted that the decision of the European Court of Human Rights in Khan v United Kingdom (2014) EHRR 294 did not, in fact, determine that a person in the position of Mr Tasib was entitled to rights under Article 8 of the Convention as the European Court had said that “Insofar as the applicant’s remaining complaints” (which included an alleged breach of Articled 8) may be regarded as within the United Kingdom’s jurisdiction, those complaints fell to be rejected. The European Court did not determine whether the complaint under Article 8 did in fact fall within Article 1 of the Convention.[78]Mr Buttler submitted that the situation of Mr Tasib fell within Article 1 and therefore Article 8 of the Convention applied. Mr Tasib was a person who had indefinite leave to remain. He had lived in the United Kingdom since the age of six. He lived with his wife and family here. He was outside the United Kingdom on a visit. He therefore fell within Article 1 for the purposes of his claim under Article 8 of the Convention. Discussion and conclusion[79]Article 1 of the Convention provides that “Article 1 Obligation to respect human rights The High Contracting Parties shall secure to everyone within their jurisdiction the rights as defined in Section 1 of this Convention.”

Obligation to respect human rights

[80]The question, therefore, is whether a person is within the jurisdiction of the state. A state’s jurisdiction is primarily territorial, that is it exercises jurisdiction throughout its territory. There are exceptional circumstances where acts performed in, or producing effects outside, the state’s territory constitute an exercise of jurisdiction for the purposes of Article 1 of the Convention. Persons who are the subject of such acts fall within the jurisdiction of the state for the purposes of Article 1 and the obligation to secure that their Convention rights are respected applies. One exception involves a situation where a state, through its agents, exercises control and authority over such a person. A second is where the state has effective control over an area of territory. See generally Al-Skeini v United Kingdom (2011) 53 EHRR 18.[81]A person wishing to bring a claim for judicial review alleging that action by a public authority is incompatible with his Convention rights must, therefore, be within the jurisdiction of the United Kingdom within the meaning of Article 1. That will normally involve situations where a public authority performs statutory or other public functions within the United Kingdom in respect of a person usually present in the territory of the United Kingdom. The presence of the person is not, however, a necessary requirement for that person to be in the United Kingdom at the time that a public body exercises authority in respect of that individual. To take a simple example, if a British citizen, who lived, and had always lived, in Britain was on a short holiday abroad and the public authorities searched his home and his office and seized documents belonging to him, the situation would fall within Article 1, and the public authorities would be obliged to act compatibly with Article 8, notwithstanding the fact that the person was abroad at the time.[82]The present case involves an individual, Mr Tasib, who came to the United Kingdom with his family in 1998 when he was six years old. He lived in the United Kingdom with his mother and father and his sisters. He married a British citizen and his wife came to live with him and his family. His family life and his private life was located entirely in the United Kingdom from 1998 onwards. He was granted indefinite leave to remain in the United Kingdom in June 2006. In September 2024, he went on a family visit with his wife to Pakistan to visit his father-in-law who was ill. The visit was intended to last three weeks. Without considering other authorities, a decision by the Secretary of State, exercising functions under a Scheme made pursuant to statutory powers, to refuse authorisation for Mr Tasib to travel by plane back from Pakistan to the United Kingdom would, in my judgment, fall within Article 1 of the Convention and section 6 of the 1998 Act would require the Secretary of State to act compatibly with Mr Tasib’s Convention rights, including Article 8. Mr Tasib would be within the jurisdiction of the United Kingdom, albeit he was temporarily abroad on a family visit, at the time that officials acting on behalf of the Secretary of State exercised the relevant public functions. In fact, I am satisfied that we are, in any event, bound by authority to reach that conclusion.[83]The decision in Ali is the relevant authority. There, this Court was dealing with a Somali national who came to the United Kingdom at the age of nine and, together with the rest of his family, was given indefinite leave to remain. At the age of 18, he travelled abroad with the intention of soon returning to the United Kingdom. He was not permitted to return as he had lost his travel documents and the Home Office had failed to keep a record that he had been granted leave to remain. Some ten years passed after he left the United Kingdom, and his indefinite leave to remain lapsed. He applied for entry clearance to enable him to come to the United Kingdom but that application was refused. He appealed against the refusal contending that it involved a disproportionate interference with his rights under Article 8 of the Convention.[84]Andrews LJ, with whom Coulson and King LLJ agreed, considered the question of whether Mr Ali fell within Article 1 of the Convention so that Article 8 applied. She considered the case of Khan, noting that Mr Khan was voluntarily outside the United Kingdom and complained that the cancellation of his student visa interfered with his right to live and study in the United Kingdom. He claimed that was a breach of Article 8. Andrews LJ noted that the decision of the European Court in relation to Article 8 was based on the fact that Mr Khan had a rather limited prior private life in the United Kingdom and that the decision to exclude him was proportionate. In other words, the decision was consistent with the European Court finding that Article 8 was applicable to the case but there was no breach because the decision was proportionate. Against that background, Andrews LJ found that Mr Ali did fall within the jurisdiction of the United Kingdom when it refused to grant him entry clearance. She said at paragraph 47 that:
“47. Khan also seems to me to provide the complete answer to the jurisdictional objection which Mr Waite sought to advance based on paras 23–25 of Abbas (albeit that it was not at the forefront of his submissions). If someone is a settled migrant, then the actions of the state in removing them, cancelling their leave to remain, or refusing them leave to re-enter all have an impact on their established private life within the territory of the state which is sufficient for the purposes of article 1.”
[85]The decision in Ali is binding on us. The facts are indistinguishable (indeed, if anything, the facts in Mr Tasib’s case are very much stronger). Mr Tasib has been in the United Kingdom since he was six years old. He had been on a short family visit and had been outside the United Kingdom for a matter of days when the Secretary of State took the decision to refuse authorisation for him to return by air from Pakistan. He still had indefinite leave to remain when the decision was taken.[86]I do not consider that the decision in Ali is inconsistent with the decision in R3. That case involved a person who was a national of both the United Kingdom and Pakistan. He married his first wife in 2003 and had four children. He left the United Kingdom in May 2013 and travelled on a one-way ticket to Turkey and then crossed into Syria. In May 2017, the Secretary of State gave notice that she intended to deprive him of his British citizenship. He remained in Turkey, then Syria, living with his second wife and children. He brought an appeal and applied for permission to amend the claim to contend that the deprivation of citizenship was a breach of Article 8 of the Convention because the process of the deprivation of citizenship carried insufficient safeguards to prevent the risk of discrimination and arbitrariness.[87]On appeal, Elisabeth Laing LJ, with whom Stuart-Smith and Moylan LJJ agreed, held that the situation did not fall within Article 1 of the Convention. The case concerned a deprivation of citizenship. Further, the context was one where the applicant had voluntarily left both the United Kingdom and his family here, did not wish to return to the United Kingdom, and was not stateless. In that situation, the deprivation of citizenship did not fall within Article 1 of the Convention. Elisabeth Laing LJ noted that Article 8 might become relevant if R3 applied for entry clearance to visit or be reunited with his family in the United Kingdom.[88]I do not consider that the decision in Ali is inconsistent with R3. The functions being exercised, and the decision in question, were different: Ali involved the refusal to allow a person to enter the United Kingdom whereas R3 concerned a decision to deprive a person living abroad of citizenship. The facts were distinguishable. Ali had lived in the United Kingdom with his family since the age of nine. He had left the United Kingdom in order to travel and he intended to return to the United Kingdom and his family but was prevented from doing so. The applicant in R3 had left the United Kingdom, and his family here, many years previously and did not intend to return to the United Kingdom or to live with or visit his family in the United Kingdom. He was challenging only the decision depriving him of his citizenship. The two cases are factually and legally distinguishable. I regard the decision in Ali as indistinguishable and binding in the present appeal.[89]In relation to Khan I would say only this. Khan involved a national of Pakistan who had been arrested on suspicion of conspiracy to carry out an act of terrorism but was then released. The Secretary of State served a notice of intention to deport him. Mr Khan then left the United Kingdom voluntarily and returned to Pakistan. He brought claims alleging a breach of Articles 2, 3, 5 and 6 of the Convention. The European Court found that, in a situation where Mr Khan had voluntarily returned to Pakistan, he was not within the jurisdiction of the United Kingdom so far as those articles were concerned and dismissed those claims on that basis. In relation to his claim based on Article 8 which concerned the cancellation of his student visa, the European Court did not dismiss it on the basis that he was not within the jurisdiction. It said that “[i]nsofar” as that complaint may be regarded as falling within the United Kingdom’s jurisdiction, the claim was manifestly ill-founded. First, at most, the European Court left the question of jurisdiction in relation to Article 8 undetermined. Secondly, its decision to dismiss the claim on its merits is at least consistent with the possibility that such claims may fall within the jurisdiction. Thirdly, and more significantly, the facts are very different from the present case. Khan involved a person who had limited leave to remain (as a student) who voluntarily left the United Kingdom. He could not be described as settled migrant – he did not have indefinite leave to remain, but was here for a limited purpose, i.e. to study, and left of his own accord. That is very different, factually, from the position here where Mr Tasib had lived in the United Kingdom since the age of six, he was settled as he had indefinite leave to remain at the relevant time, he went abroad on a family visit and intended to return to continue living with his family in the United Kingdom. He did not leave the United Kingdom with the intention of ceasing to live here.[90]For those reasons, I would decide the fifth issue against the Secretary of State. Mr Tasib was a person within the jurisdiction of the United Kingdom at the time that officials on behalf of the Secretary of State refused the airline authority to carry Mr Tasib to the United Kingdom. They were obliged to secure that his right under Article 8 to respect for his family and private life was observed in the exercise of their functions. THE SECOND ISSUE – WHETHER THE REFUSAL OF AUTHORISATION WAS PROPORTIONATE

Submissions

[91]Mr Buttler identified this issue as being whether the denial of authority to carry constituted a disproportionate interference with Mr Tasib’s right to respect for his family and private life under Article 8 of the Convention. He accepted that the issue concerned only the refusal of authorisation to travel to the United Kingdom (not the later decisions to exclude Mr Tasib or to cancel his leave to remain). He submitted that that refusal involved an interference with Mr Tasib’s right to respect for family and private life within Article 8 which the Secretary of State could not show was proportionate or justified under Article 8(2). He submitted that this was a case where the Court of Appeal should carry out its own assessment of proportionality, not simply review the decision of the judge, relying on Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2026] AC 607.[92]Mr Buttler submitted that the refusal of authorisation affected Mr Tasib, and his family in a number of ways. The background was that, if he had been told of the decision to deport him at any time before he left for Pakistan he would not have left the United Kingdom without that issue being resolved. In the circumstances, he had left the United Kingdom and the refusal of authorisation prevented him from returning. That weakened his human rights claim, made following the cancellation of his leave, that excluding him from the United Kingdom was incompatible with his rights under Article 8. It would weaken the strength of his claim to private and family life in the United Kingdom. It would prevent him giving oral evidence before the First-tier Tribunal as, on the evidence, Pakistan was not granting consent to evidence being given by video link from Pakistan. Further, Mr Buttler submitted that the refusal of authorisation affected Mr Tasib’s ability to live with his wife and expected child in the United Kingdom. It affected his ability to continue and develop his other family and private life in the United Kingdom. Mr Tasib’s whole life was in the United Kingdom. He was unable to care for his disabled sister. Mr Buttler’s written skeleton argument developed those points further.[93]Mr Dunlop submitted that this was an evaluative decision in relation to one individual. The role of the Court was to review the judge’s proportionality assessment to determine if she had properly directed herself and whether the conclusion she reached was one that was reasonably open to her. It was not for the Court to carry out its own proportionality assessment. In the present case, the judge had correctly directed herself and reached a conclusion that was reasonably open to her. Alternatively, Mr Dunlop submitted that the conclusion that the refusal of authorisation was proportionate was correct. The refusal prevented return for a short period whilst cancellation of the existing leave was being considered. Mr Tasib had voluntarily chosen to leave the United Kingdom, knowing that he was a person subject to immigration control. He knew that he had committed serious crimes in the United Kingdom and it was reasonably foreseeable he might not be allowed to return. Mr Tasib would have rights to appeal against any refusal of a human rights claim or to apply for judicial review of any other decision.

Discussion and conclusion

[94]By way of preliminary observation, it is important to identify the issue under Article 8 of the Convention. Article 8(1) guarantees respect for family and private life. Article 8(2) provides that there “shall be no interference by a public authority with the exercise of the right” save in accordance with the requirements of Article 8(2). It is important to identify the interference in question as it is that interference which the public authority will need to justify. Here the interference was the refusal of authority for the airline to carry Mr Tasib to the United Kingdom which, in effect, kept him out of the United Kingdom until his indefinite leave to remain was cancelled.[95]Against that background, I consider first the role of this Court on an appeal. That issue was reviewed by the Supreme Court in Shvidler at paragraphs 142 to 165 of the judgment of Lord Sales and Lady Rose (and on which issue the other members of the Court agreed). The Supreme Court identified the two approaches that might be adopted to a proportionality assessment in paragraph 142 in the following terms:
“142. A significant issue in these appeals is the proper approach to be adopted by an appellate court to the assessment of proportionality. Two different approaches are identifiable in the authorities. In some cases the appellate court treats its role as confined to a review to check whether the first instance court’s assessment in relation to the proportionality of a measure was arrived at on the basis of a proper self-direction as to the test to be applied and whether the result arrived at was reasonable, in the sense of being within the legitimate parameters of judgment for the judge; if it is satisfied on these points, the appellate court will not intervene, even though it thinks that it might have reached a different view if it had been deciding the issue for itself. This approach gives particular weight to the assessment made by the judge. As explained in R (R) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079, para 64, where this approach is followed an appellate court will only intervene if the lower court has made a significant error of principle or there is “an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of [their] conclusion”
. In other cases, the appellate court does not treat its role as so limited, but instead, in order to decide whether the appeal should be allowed, it makes its own fresh assessment of the proportionality of the measure in question. This approach gives priority to the authority vested in the appellate court to decide and give guidance on legal questions.”[96]The Supreme Court noted that each approach was justified in the proper context and gave detailed guidance on which of the two approaches it was appropriate for an appellate court to adopt. It noted that the review approach “puts emphasison the dispute-resolution effect of the first instance judgment on a determination of the facts” (see paragraph 143). The fresh determination approach was appropriate where it was important for the appellate court to give its own opinion about the proportionality of a measure and its compatibility with Convention rights. That was likely to be an important consideration where the decision would provide guidance for other cases or where the subject matter “has major social or political significance so that the public will rightly expect the senior judges in the appellate court to exercise their own judgment as to whether the measure in question is proportionate and lawful or not” (paragraph 144). At paragraph 147, the Supreme Court contrasted: “a one-off decision which only affects persons involved in the proceedings, there is no controversy about the content and Convention compatibility of the general law which is applicable and the case turns essentially on a factual assessment of the circumstances which the lower court was particularly well placed to make. In such a case it will be appropriate for the appellate court to adopt an approach according to which it asks whether the lower court directed itself correctly, has had due regard to relevant matters and has reached a conclusion reasonably open to it, without any need to second-guess that court’s proportionality assessment” with situations where “matters of general principle are in issue or the question concerns the Convention compatibility and proportionality of general rules set out in legislation—it is the proper function of the appellate court to determine the question of proportionality for itself without deferring to the assessment made by the lower court,”

with situations where

[97]At paragraph 162, the Supreme Court identified the main factors indicating that a fresh assessment, not a review, was called for, observing:
“162. The adoption of a more intensive role by the appellate court in terms of proceeding to make its own fresh assessment (even though there has been no error by the first instance court) requires to be justified by special factors as being constitutionally appropriate in the public interest and to uphold the rule of law. The main factors which are likely to be relevant to justify adoption of such an approach are (i) the relevance of the assessment of proportionality across a range of cases, whether in terms of establishing a point of general principle or approach, the proper interpretation of legislation or the proper development of the common law; (ii) the nature of the measure in question, since the constitutional responsibility of the senior courts is likely to be engaged in a more acute way in relation to challenges to primary or secondary legislation; (iii) whether the case involves a claim that legislation or proposed legislation of any of the devolved legislatures is outside competence by reason of incompatibility with Convention rights (since such an important question should again be resolved by a senior court); (iv) whether the case involves a claim that there is significant incompatibility between primary legislation and Convention rights (since such a claim invites the court to critique what Parliament has done and also because a determination of that issue may later fall to be scrutinised on an application to the European Court of Human Rights, which is likely to be assisted to the greatest degree by a domestic determination of proportionality by a senior court); (v) the need to resolve differences between divergent strands of authority which may have emerged in the lower courts; and (vi) the high importance for society of the issue to be resolved and the concomitant public interest in its being directly determined by a senior court. This is not an exhaustive list and in some situations there may be some other compelling reason for the appellate court to adopt the fresh assessment approach in order to fulfil its constitutional responsibilities.”
[98]The correct approach in this appeal is the review approach. This is not a case where it is necessary, or appropriate, for the appellate court to carry out a fresh assessment of the proportionality assessment. This appeal involves the question whether, on the facts, a particular decision (the refusal of authorisation for Mr Tasib) was compatible with Article 8 of the Convention. Further, the facts in this case are relatively unusual in that Mr Tasib left the United Kingdom a few days before the notice of the decision to deport was sent (and in circumstances where, by administrative error, the prison had not taken action earlier to raise the question of his conviction and liability to automatic deportation). The decision is not likely to give guidance on the applicability of Article 8 in other cases.[99]Furthermore, the appeal does not involve consideration of the compatibility of legislation (for example, the provisions in the 2015 Act conferring power to make an authority to carry scheme) or a general measure (such as the Scheme in this case) with Article 8 of the Convention. Although important for Mr Tasib and his family, it does not raise an issue of major social or political significance. None of the factors referred to in paragraph 162 of Shvidler are present. There is nothing to indicate that this appeal is one where this Court should carry out a fresh assessment of proportionality.[100]I turn then to the judgment of the judge, the material paragraphs of which are set out above. She did correctly direct herself as appears from paragraphs 132 and 133 of her judgment. She correctly identified the issue as being whether the refusal of authorisation involved a disproportionate interference with Mr Tasib’s rights under Article 8 of the Convention. The judge correctly identified the impact of the refusal at paragraphs 136 and 137. She noted that the Secretary of State’s own delay in dealing with deportation after Mr Tasib’s release from prison reduced the public interest in deportation (although she considered, as she was entitled to, that it did so only to a modest degree).[101]The judge then set out circumstances which justified refusing authorisation to carry pending a decision on whether Mr Tasib should be excluded from the United Kingdom by having his existing leave to remain cancelled. She identified the relevant factors going to the public interest in ensuring that Mr Tasib remained outside the United Kingdom during that period, including his criminal record, his serious offending involving driving at a police officer and putting the officer’s life at risk and in relation to his significant role in the supply of illegal drugs, the fact that he had left the United Kingdom voluntarily and the fact that it was a coincidence that Mr Tasib left shortly before the notice of the decision to deport was sent to him. That is, by implication, a finding that there was no basis for concluding that the Secretary of State was in some manipulating or engineering a situation where Mr Tasib was outside the country rather than the deportation process (and any human rights appeal) being dealt with whilst he was within the country. The judge emphasised that the challenge here was to the refusal of authorisation, which kept Mr Tasib out of the United Kingdom pending a decision on whether to cancel his leave and exclude him from the United Kingdom. It was not a challenge to the exclusion decision and, by implication, any issue as to the need for Mr Tasib to be present to give oral evidence at the hearing of the appeal concerned with that decision, would have to be considered by the First-tier Tribunal.[102]The judge concluded that the risk to public safety posed by Mr Tasib warranted the refusal of authorisation pending further consideration of his case by the Secretary of State. She considered that the refusal was “in all the circumstances a proportionate interference with [Mr Tasib’s] article 8 rights”. That was a conclusion that was reasonably open to the judge and was well within the legitimate parameters of judgment for her. I would therefore decide the second issue against Mr Tasib and I would dismiss his appeal on ground 2.[103]For completeness, I note that in paragraph 163 of the judgment in Shvidler, Lord Sales and Lady Rose observed that there may be circumstances where it is unclear as to what the correct approach is – to conduct a review or to carry out a fresh proportionality assessment. They observed that in such circumstances it may be prudent to make an assessment of proportionality on both grounds. I have not found it necessary to do so in this case. It is clear that the correct approach is that of reviewing the decision of the judge which essentially concerns her assessment of an individual decision on the particular facts of the case. It is neither necessary, nor would it be appropriate or helpful, to carry out a fresh proportionality assessment in this case. THE THIRD ISSUE – THE IMPACT OF GROUNDS 1 AND 2 OF THE APPEAL ON THE EXCLUSION DIRECTION[104]It is possible to deal with this issue shortly. Mr Buttler submitted that if Mr Tasib succeeded on grounds 1 or 2 of the appeal (the first and second issues) then it would follow that the refusal of authorisation was unlawful. That he submitted would mean that Mr Tasib had been wrongly stranded in Pakistan and wrongly denied the opportunity to bring an in-country right of appeal. That, Mr Buttler submitted, was a historical injustice of the sort described in Patel (historic injustice: NIAA Part 5A) [2020] UKUT 351 (IAC) at paragraph 42. Mr Buttler submitted that that was a mandatory consideration which the Secretary of State was required to take into account when reaching what he described as her exclusion decision. The failure to take that into account, he submitted, led to that decision being unlawful.[105]This third issue is contingent on Mr Tasib succeeding on ground 1 or 2 of his appeal and in establishing that the refusal of authorisation was unlawful under domestic law or by virtue of section 6 of the 1998 Act because it was incompatible with Article 8 of the Convention. That appears from the amended statement of facts and grounds which accompanied the judicial review claim form. It is recognised at paragraph 42 of the written skeleton argument submitted on Mr Tasib’s behalf.[106]The short answer is that I would dismiss the appeal on grounds 1 and 2 for the reasons given above. The premise of this ground of claim – namely that the refusal of authorisation was unlawful – is not made out. Given that the refusal of authorisation was lawful, not unlawful, there can be no injustice. For this reason alone, I would find against Mr Tasib on the third issue.[107]For completeness, I note that it is not necessary to determine whether or not the refusal of authorisation, if it had been unlawful, amounted to an historic injustice within the meaning given to that phrase in Patel. Nor is it necessary to determine whether, if that were characterised as a historic injustice, it was a mandatory consideration and whether failure to have regard to it rendered the exclusion decision or direction of 13 June 2025 unlawful. We heard no argument on those issues. I express no view on them. THE FOURTH ISSUE – DID THE SECRETARY OF STATE HAVE THE POWER TO MAKE THE EXCLUSION DIRECTION[108]Mr Buttler submitted that the decision of the Secretary of State in the letter of 13 June 2025 amounted to an exclusion decision or order which excluded Mr Tasib from the United Kingdom. He submitted that the power to exclude a person from the United Kingdom derived from the royal prerogative and only arose in relation to aliens, not British nationals or Commonwealth citizens such as Mr Tasib. Alternatively, even if it were seen as a direction, not a decision, the Secretary of State had no power to give a direction to an entry clearance officer as to how such officers exercised their discretion. She could not therefore say that Mr Tasib would be refused entry on arrival.[109]Mr Dunlop submitted that the letter of 13 June 2025 was in fact a direction given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act and the Secretary of State had an implied power to give such a direction to entry clearance officers.

Discussion and conclusion

[110]There may well be a prerogative power to exclude aliens from the United Kingdom. We were not shown any authority, or any textbook, dealing with the circumstances in which any such power could be exercised nor what the consequences of the exercise of such a power would be. However, it seems that any such prerogative power (at least currently) is preserved only in relation to aliens, and Commonwealth citizens are not aliens: see section 33(5) of the 1971 Act and section 51(4) of the British Nationality Act 1981. Thus, whatever the Secretary of State was purporting to do in her letter of 13 June 2025, she cannot, it seems, have been exercising prerogative powers in relation to Mr Tasib who is a citizen of Pakistan, and a Commonwealth citizen (as Pakistan is a member of the Commonwealth).[111]The starting point is to analyse what the letter of 13 June 2025 actually does, as a matter of law. The operative part of the letter, in bold in the original, says that:
“I am writing to tell you that the Secretary of State has personally directed that you should be excluded from the United Kingdom (UK) on the grounds that your exclusion is conducive to the public good.”
[112]The letter then goes on to say that Mr Tasib has been excluded from the United Kingdom, that he must not travel to the United Kingdom and that he would be refused entry on arrival. Some of the language used appears to assume, or to give the impression, that the decision letter of 13 June 2025 produced the legal consequence that Mr Tasib would no longer have a legal right to enter the United Kingdom and that if he sought to enter the United Kingdom he would be refused entry, i.e. when he arrived in the United Kingdom and presented himself to immigration officials at the border. That assumption, or impression, is wrong. This letter of 13 June 2025 did not, of itself, bring about a change in the immigration status of Mr Tasib. He had indefinite leave to remain in, and thus also leave to enter, the United Kingdom before that letter was sent. That letter did not of itself alter that position.[113]Rather, the effect of the letter of 13 June 2025, properly understood, is to notify Mr Tasib that the Secretary of State has given a direction to ensure that Mr Tasib should no longer be able to enter the United Kingdom because she considers that it is desirable that Mr Tasib is no longer able to enter the United Kingdom. The letter of 13 June 2025 is, properly understood, a direction to an immigration officer to cancel his leave.[114]That is what, in fact happened. A second letter, also dated 13 June 2025, sent by an immigration officer, stated: “Your indefinite leave to remain in the United Kingdom (UK) has been cancelled with immediate effect”.[115]It was that letter which brought about a change in the immigration status of Mr Tasib. It was that letter which cancelled his existing leave to remain and, consequently, he no longer had any legal basis for entering, or remaining, in the United Kingdom.[116]The Secretary of State had power to give such a direction. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that immigration officers are required to exercise their functions “in accordance with such instructions (not inconsistent with the immigration rules) as may be given by the Secretary of State”. The power to give such directions, therefore, is implicitly conferred by paragraph 1(3) of Schedule 2 itself. This was the conclusion of Ingrid Simler QC, sitting as a deputy High Court Judge in R (Cakani) v Secretary of State for the Home Department [2013] EWHC 16 (Admin). There the deputy High Court judge was dealing with a decision made by the Secretary of State to exclude a foreign national who was outside the United Kingdom. At paragraph 47 the deputy High Court Judge said this:
“47. The focus of sections 1 and 3 of the 1971 Act is on the control of entry into and stay in the UK by those without the right of abode in the UK, conferring powers to exercise such control in the broadest terms. The 1971 Act also empowers the Secretary of State to give instructions to immigration officers (who exercise functions under the Act) that are not inconsistent with the Immigration Rules: Schedule 2 paragraph 1(3). These provisions are amply wide enough to confer the necessary power on the Secretary of State to make an exclusion decision in respect of a foreign national who is outside the UK. Furthermore, given the terms of paragraph 320 (6) of the Immigration Rules, it cannot be said that the making of such a decision is inconsistent with the Immigration Rules. To the contrary, the Immigration Rules expressly envisage that the Secretary of State may personally make a decision that exclusion of a person is conducive to the public good.”
[117]I agree. The same reasoning applies to the letter of 13 June 2025 which, on a proper analysis, was a direction given to an immigration officer pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act requiring him to cancel Mr Tasib’s leave to remain.[118]There was discussion at the hearing as to whether the Secretary of State had power to give directions to entry clearance officers to refuse entry clearance. I would make two preliminary observations. First that situation has not yet happened in the present case as Mr Tasib has not applied to an entry clearance officer for entry clearance. Secondly, even if there was a problem in relation to the grant of entry clearance, that would not affect the cancellation of Mr Tasib’s indefinite leave to remain by the second 13 June 2025 letter.[119]The problem in relation to entry clearance officers is said to arise in this way. Paragraph 1(3) of Schedule 2 deals with the giving of directions to immigration officers. Those are persons appointed by the Secretary of State (see paragraph 1(1) of Schedule 2). Entry clearance officers are not appointed by the Secretary of State for the Home Department. (We were not told who appoints them, but it may be the Secretary of State for Foreign, Commonwealth and Development Affairs). We were not addressed on the question of whether the word “Secretary of State” encompassed any Secretary of State, and if so, whether a person appointed by any Secretary of State and who, in fact, took decisions having effect under the 1971 Act was an immigration officer for those purposes. It is said, therefore, that the Secretary of State could not give directions to entry clearance officers. In the past, that did not create a problem as an entry clearance granted by such an officer was evidence of eligibility to enter but the actual grant of leave was still done by an immigration officer. Section 3A of the 1971 Act allows the Secretary of State make further provision about granting or refusing leave. The Secretary of State has done so and article 2 of the Order provides that an entry clearance “shall have effect as leave to enter the United Kingdom”.[120]The point has not arisen for decision yet as no application has been made to an entry clearance officer. Subject to further, and fuller, argument about the meaning of “Secretary of State”, my provisional view is that the perceived problem is likely to be resolved as follows. Persons need leave to enter the United Kingdom. The Secretary of State has an implied power to take steps that are ancillary, or incidental, to the regulation of entry into the United Kingdom (see R (X) v Secretary of State for the Home Department [2021] 4 WLR 137 at paragraphs 31 to 32). The Secretary of State may, and has, provided for the grant of entry clearance to have effect as if it is a grant of leave to enter. The power to make such provision includes an ancillary or incidental power to give directions to entry clearance officers as to when they should not grant entry clearance. That is consistent with the statutory scheme as a whole. The Secretary of State is ultimately responsible for the system of regulation of entry and leave to remain in the United Kingdom. It would also be odd if the Secretary of State could not give directions to entry clearance officers to refuse entry clearance – when she could in any event, it seems, give directions indicating that immigration officers should exercise their functions under the Immigration Rules to cancel any leave to enter which is in force.[121]For the reasons given above, I would decide the fourth issue against Mr Tasib.

CONCLUSION

[122]I would dismiss the appeal on grounds 1 and 2 (the first and second issues). I would dismiss the claim for judicial review (the third and fourth issues). The power to refuse authorisation did apply in Mr Tasib’s case as he was a person whom the Secretary of State was in the process of making subject to a deportation order and so fell within paragraph 14(f) of the Scheme. The judge was entitled to conclude that the refusal of authorisation was a justified and proportionate interference with the right to respect for Mr Tasib’s family and private life. The Secretary of State had power to direct that an immigration officer cancel Mr Tasib’s existing leave to remain.

SIR NICHOLAS UNDERHILL

[123]I agree that this appeal should be dismissed, for the reasons given by Lewis LJ. It does not follow that I believe that Mr Tasib’s case was in all respects properly handled, and it is clear that it was not.[124]In the first place, it is remarkable that notice of deportation was not sent to Mr Tasib, as a foreign criminal, and in particular as one who had been sentenced to more than four years’ imprisonment, shortly after his conviction and while he was serving his prison sentence: see para. 34 of Lewis LJ’s judgment. We were told that that was the fault of the prison authorities rather than the Home Office; but it is still a serious error on the part of the state which resulted in no steps being taken to deport Mr Tasib for over two years following his release from prison, and indeed in his being issued with a renewed biometric residence permit.[125]Second, it is surprising that, as appears from paras. 35-37, it took six months for the Home Office to pick up on the fact that Mr Tasib had the convictions in question from the time that he himself revealed them in his application for a renewed residence permit, and a further five weeks before a notice of deportation was sent to him.[126]Third, the response from the Home Office to Mr Tasib’s representations in the immediate aftermath of having been denied boarding, as described by Lewis LJ at paras. 46-48 above, was deplorable. Lewis LJ is of course right that in the nature of the Scheme it is unlikely to be realistic for the Secretary of State to seek representations from the person who is to be denied boarding in the short interval available following notification to her that they are booked on the flight, and still less to provide an opportunity for that person to make representations after learning of her decision. But, as he goes on to point out, a decision in respect of a particular flight is in practice a decision that authority to carry will be refused for any future flight; and she should as a matter of fairness have in place an effective system for a responsible person to review that decision urgently in the light of any representations received. It is quite wrong that a prompt and reasoned objection from someone claiming to have been left stranded in a foreign country should have been met with a standard “aim to respond in ten working days” response, and still more wrong that no response should have been received within that period or later.[127]However, for the reasons given by Lewis LJ, the Judge was entitled to find that those failings do not mean that the refusal of the authority to carry Mr Tasib, or its maintenance pending a decision whether to exclude him, constituted a breach of his rights under article 8. It is Mr Tasib’s misfortune that he chose to go abroad at a time when the Secretary of State was on the point of serving notice of a stage 1 deportation decision. The fact that he would probably not have done so if he had known that that was the case did not require the Secretary of State to allow him to return pending a decision on whether she believed that he should be excluded. (In this connection it is important to note that there is no suggestion that the timing of the decision was anything but a coincidence.) It is also very unfortunate that it took so long for that decision to be made (though that delay may not all be the fault of the Secretary of State). It has in any event now been made, and is the subject of a challenge by Mr Tasib in the First-tier Tribunal: the merits of that challenge do not arise on this appeal. LORD JUSTICE PETER JACKSON[128]I agree with both judgments.

order

see section 33(7) of the 2007 Act. order: that is, that an order has been made and, as a consequence of the order, the person is required to leave the United Kingdom and his existing leave is invalidated. It also concerns situations where the Secretary of State is in the process of making a person subject to an order, i.e., and as a minimum, is in the process of considering whether a person liable to deportation should be made the subject of an order. It also includes situations where the person was subject to deportation proceedings - that is, as was common ground, subject to action on the part of the Secretary of State intended to result in the making of a deportation order - but where the person has left the United Kingdom before those proceedings have concluded, i.e. before the deportation order has been made. The intention is to include the process up to the making of deportation order, and those who have been made subject to such an order. It is not intended to deal solely with the situation where a person is liable to deportation, all the necessary steps have been taken to consider relevant matters, and a decision to make a deportation order has been made – but the order has not yet been made.