Sohail Tasib, R (on the application of) v Secretary of State for the Home Department [2026] EWHC 139 (Admin)

[2026] EWHC 139 (Admin)Case No AC-2024-LON-004223
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/01/2026
Before
MRS JUSTICE FARBEY DBE
Between
SOHAIL TASIBClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Raza Halim (instructed by Duncan Lewis Solicitors) for ClaimantMs Natasha Barnes (instructed by Government Legal Department) for DefendantHearing Hearing dates: 14 and 15 October 2025; 14 January 2026Additional written submissions: 9 January 2026 (Claimant) and 13 January 2026 (Defendant)
Approved JudgmentThis judgment was handed down remotely at 4.30pm on 28/01/2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]The claimant is a Pakistani national who lived with his family in the United Kingdom from the age of five to the age of 31. He held indefinite leave to remain (“ILR”) from 2006 to 2025 when it was cancelled. He has applied for judicial review of two decisions of the Secretary of State for the Home Department. First, he challenges the decision, made on 28 September 2024, to refuse authority to the Emirates airline (“Emirates”) to carry him from Pakistan to the UK during the currency of his ILR (“the ATC decision”). That decision was made under paragraph 14(f) of the Authority to Carry Scheme 2023 (“the ATC Scheme” or “the Scheme”). Secondly, he challenges the Secretary of State’s decision to exclude him from the UK on 13 June 2025 after his ILR was cancelled (“the exclusion decision”).[2]Given the serious consequences of the claim for the claimant, his wife and his family, I have given anxious scrutiny to all aspects of the evidence and grounds of challenge. I have been assisted by the excellent written and oral submissions of Mr Raza Halim for the claimant and Ms Natasha Barnes for the Secretary of State.[3]After the hearing, there were relevant developments in the case law. In particular, after I had nearly completed my judgment in draft form, Constable J handed down judgment in R (FD) v Secretary of State for the Home Department [2025] EWHC 3291 (Admin). He held that paragraph 14(f) of the ATC Scheme cannot lawfully be applied in circumstances where there is no suggestion that a person is a terrorist or poses any terrorism-related threat. I had heard no argument about whether the ATC Scheme covers only terrorist cases, which would mean that it could not have been lawfully applied to the claimant, and so I convened a hearing to consider with the parties what to do. By that time, the Secretary of State had applied for permission to appeal against Constable J’s order. Both parties agreed that the court should proceed to hand down judgment without dealing with FD and consider thereafter how the claim should proceed. This judgment does not, therefore, deal with FD. I make plain that the claimant has reserved his position on FD for all purposes save for the hand down of this judgment.[4]In addition, I received post-hearing written submissions from the parties on R (AA) v Secretary of State for the Home Department [2025] EWHC 3404 (Admin) and R (AFA) v Secretary of State for the Home Department [2025] EWCA Civ 825. The claimant contends that these decisions are relevant to issues raised by this claim. The Secretary of State maintains that they are not. I shall deal with these judgments in their proper place below.

Summary of the grounds of challenge

[5]The grounds of challenge, as amended, may be summarised as follows. Under Ground 1, the claimant submits that the ATC decision was unlawful in so far as paragraph 14(f) of the ATC Scheme, upon which the decision was founded, is ultra vires section 22 of the Counter-Terrorism and Security Act 2015 (“the CTSA”) under which the Scheme was made. The essence of this ground is that the claimant, as a person who had extant ILR at the time of the ATC decision or as a Commonwealth citizen, had a fundamental right to enter and remain in the UK. The claimant submits that paragraph 14(f) of the Scheme is ultra vires to the extent that section 22 does not enable the Secretary of State to refuse authority to carry a person to the UK in circumstances where the refusal would override a fundamental right. Permission to apply for judicial review was granted on this ground by Cavanagh J when he considered the claim on the papers.[6]Under Ground 2, the claimant submits that the Secretary of State misdirected herself in law by concluding that paragraph 14(f) of the Scheme applied to the claimant. The claimant emphasises that paragraph 14(f) applies only to those “whom the Secretary of State is in the process of making the subject of a deportation order under the Immigration Act 1971.” He contends that that process had not yet begun in his case, so that paragraph 14(f) was inapplicable. Cavanagh J refused permission on this Ground. The renewed application for permission came before me on a rolled-up basis.[7]Ground 3 is not pursued and I shall therefore say nothing about it. Under Ground 3A, the claimant contends that he has suffered an “historic injustice” in the sense defined in the case law. The injustice is said to be that the unlawful ATC decision has caused the claimant to be located outside the UK so that he has only out-of-country appeal rights against the refusal of a human rights claim. He submits that out-of-country appeal rights are ineffective. Cavanagh J did not consider this Ground which arose after he had considered the case. It comes before me on a rolled-up basis.[8]Under Ground 4, the claimant contends that the ATC decision breaches his right to respect for private and family life under article 8 of the European Convention on Human Rights (“the Convention”). He submits that the ATC decision has caused him to be located outside the UK. As a result of the decision, he was denied the opportunity to resume his residence here while the question of his exclusion was considered (a substantive breach of his article 8 rights) and he has only out-of-country appeal rights against the exclusion decision, which are ineffective (a breach of the procedural aspect of article 8). Cavanagh J granted permission on this Ground.[9]Under Ground 5, the claimant contends that the exclusion decision was unlawful because there is no power to exclude Commonwealth citizens from the UK. Cavanagh J did not consider this Ground which arose after he had considered the case. It comes before me on a rolled-up basis.[10]Under Ground 6, the claimant contends that the exclusion decision was procedurally unfair because he was unreasonably refused an extension of time to make representations before the decision was taken. Cavanagh J did not consider this Ground which arose after he had considered the case. It comes before me on a rolled-up basis. Factual Background The evidence

Factual Background

[11]The claimant relies on witness statements made by him on 20 December 2024, 5 February 2025 and 16 September 2025, and a witness statement made by his wife on 10 June 2025.[12]The Secretary of State relies on a witness statement by Tracey Ann Braybrook dated 2 April 2025. Ms Braybrook is a Senior Officer in the National Border Targeting Centre (“NBTC”) which is part of the Home Office. Her brief statement does not explain her role save to say that she has “responsibility for the management of Operational Teams.” She does no more than exhibit documents on which the Secretary of State relies.[13]Evidence about how the ATC decision came to be taken is contained in an internal Home Office “timeline.” During the course of the hearing, following my observation that the Secretary of State had not filed evidence about how the exclusion decision came to be made, the Secretary of State provided a witness statement by a Senior Lawyer within the Government Legal Department (“GLD”). The statement exhibited the Ministerial Submission (“MinSub”) recommending to the Home Secretary that she exclude the claimant and an email from the Home Secretary’s Private Secretary to officials agreeing with the recommendation.[14]The following facts emerge from the witness statements, exhibits and correspondence between the parties.

Claimant’s background and criminal offending

[15]The claimant was born in 1992. He came with his family to live in the UK in 1998. He was granted ILR on 25 June 2006. Prior to the ATC decision, he had lived in Peterborough since 1998.[16]The claimant went to school and college in Peterborough. He left education at around the age of 17 to start working in his uncle’s business buying and selling cars. He is married to a British Citizen, Adilah Ijaz, whom he met at school. Until the ATC decision, she lived with the claimant in his family home and provided financial support to the claimant’s family and her own family from her employment at North Northamptonshire Council as a Direct Payments Officer.[17]The claimant’s mother, father, three sisters and brother live in Peterborough. They are all British citizens. The claimant has never applied for British citizenship. In his witness statement made on 20 December 2024, he claims that he “never got around to applying” because he “never felt that it would be an issue” and he has “never travelled much.” He says that he has no family in Pakistan.[18]On 18 October 2013, the claimant 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.[19]On 9 February 2018, the claimant 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.[20]The judge’s sentencing remarks show that the claimant was tasked with transporting cocaine and heroin from Bradford into the Cambridge area. In return, he was to be credited £300 against a debt that he had accrued for consuming drugs. 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, the claimant drove in the direction of a female police officer who had to jump out of the way in order that she should not be hit.[21]The claimant appears to have spent his time in prison productively, completing some coursework and undertaking employment. He was released on 6 December 2020. He was on licence until 6 February 2023 and adhered to his licence conditions.[22]After his release, the claimant did not return to work for his uncle. He claims to have spent his time caring for his disabled sister, Sukana. There is no independent evidence of the extent of her disability. In December 2023, he started his own second-hand car business which has never traded.

Stage 1 deportation decision

[23]Owing to an administrative error by HM Prison and Probation Service, the Secretary of State was unaware that the claimant had accrued criminal convictions until he applied for a replacement biometric residence permit on 15 February 2024. Home Office officials then took until 20 August 2024 to determine that the claimant’s offences met the criteria for deportation under section 32 of the UK Borders Act 2007 (“the 2007 Act”). For reasons that are opaque, nothing was communicated to the claimant at that stage.[24]On 16 September 2024, the claimant 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 attend a funeral.[25]Unaware that the claimant had left the UK, the Home Office on 25 September 2024 sent a “Stage 1” deportation decision to the claimant’s home address in the UK. The claimant was made aware of the decision by his father who telephoned him and sent pictures of the decision by WhatsApp. In order to deal with the decision, the claimant instructed solicitors (not his presently instructed firm) and on their advice changed his travel arrangements with the intention of returning to the UK earlier than scheduled.

The ATC decision

[26]On 27 September 2024, Home Office officials took the decision to refuse authority to Emirates to carry the claimant on a flight to the UK, under paragraph 14(f) of the ATC Scheme. On 28 September 2024, officials informed Emirates of that decision. When the claimant attempted to travel, he was not permitted to board the aircraft. He was informed by airline staff of the Secretary of State’s decision.[27]Emirates provided an email address in order that the claimant could make enquiries of the Home Office. The claimant sent an email to the Home Office to seek an explanation. In his email, he informed the Home Office that he was “stuck in Pakistan…with nowhere to go or stay.”[28]The claimant received an email in response from an unnamed official within the Border Systems Carrier Support Desk, informing him that his case had been reviewed but that the decision to refuse authority to carry was maintained. He contacted the Foreign National Offenders Return Command (“the FNORC”) but received no more than a holding response saying that the FNORC would aim to respond to him within ten working days. On 30 September 2024, he telephoned the NBTC and spoke to an NBTC official. The nature of the conversation is not clear from the NBTC record.

The exclusion decision

[29]On 20 January 2025, the Secretary of State wrote to the claimant’s present solicitors (who were by then on the record) stating that she was considering the making of an exclusion decision and the cancellation of the claimant’s ILR. The solicitors were invited to provide any representations and evidence against exclusion and cancellation within five days.[30]By letter dated 22 January 2025, the claimant’s solicitors requested a six-month extension to gather evidence and submit representations against exclusion. In support of the request, the solicitors stated that they intended to obtain at least eight psychiatric reports dealing with “the impact of indefinite separation of the family unit” as well as an expert on the “risks to [the claimant] in Pakistan.” The solicitors contended that a “six-month timeline is reasonable, and any refusal to grant the requested extension would be unlawful.”[31]By letter dated 24 January 2025, GLD stated that the Secretary of State was not prepared to agree a six-month extension but would allow a six-week extension until 10 March 2025.[32]By letter dated 27 February 2025, the claimant’s solicitors made a further request for an extension until 17 July 2025. The letter explained that they had arranged “an assessment” with an independent social worker and four separate assessments with a psychologist for the claimant, his wife, his mother and his sister. The letter set out the timeframe for the completion of reports by the social worker and psychologist and for the completion of representations.[33]On 6 March 2025, GLD responded by stating that the period sought was unreasonably long but that the Secretary of State was prepared to agree a final extension until 25 April 2025.[34]On 22 March 2025, the claimant’s solicitors wrote again to GLD stating that they needed until 10 July 2025 to finalise their submissions. By letter from GLD dated 3 April 2025, the Secretary of State refused to extend time beyond 25 April 2025.[35]By email to GLD dated 25 April 2025, the claimant’s solicitors stated that they were “not in a position to provide meaningful or comprehensive representations in respect of the proposed exclusion” and warned that they would apply for judicial review of any exclusion decision based on less than “full and fair representations.”[36]By letter dated 9 May 2025, GLD stated that the claimant had had more than ample time to prepare his representations. GLD’s letter concluded:
“The SSHD would invite the Claimant to provide her with any representations he is able to by 22 May 2025, after which the SSHD will proceed to make a decision on exclusion. In the event that the Claimant chooses to make no representations at all by 22 May 2025, the SSHD considers that he can have no complaint if a decision is taken without considering the points that could have been made on his behalf.”
[37]The claimant’s solicitors wrote to GLD again on 21 May 2025, requesting further time for representations.[38]On 4 June 2025, a MinSub was drawn up by FNORC officials for the Home Secretary’s consideration. The MinSub recommended that the Home Secretary should exclude the claimant from the UK on the basis that his exclusion was conducive to the public good in light of his serious drug and driving offences. Exclusion was said to be necessary as the claimant had left the UK before a deportation order was made against him. By email dated 11 June 2025, the Private Secretary to the Home Secretary informed FNORC officials that the Home Secretary strongly agreed with exclusion. The Home Secretary personally directed that the claimant should be excluded from the UK.[39]On 13 June 2025, the claimant’s ILR was cancelled under paragraph 9.2.2 of Part 9 of the Immigration Rules which requires leave to be cancelled when the Secretary of State has, as in the present case, personally directed that the person be excluded. By letter of the same date, the claimant’s solicitors were informed that the Secretary of State had directed that the claimant should be excluded on the grounds that his exclusion was conducive to the public good. Detailed reasons for that decision were provided in a discrete section of the letter.

The claimant’s family

[40]The claimant’s wife remained with him in Pakistan until 22 July 2025 when she returned to the UK. She was pregnant and due to give birth in December 2025. She returned to the UK to access necessary medical treatment and support in relation to the pregnancy. She and the claimant have lived apart since then.[41]In his written evidence, the claimant states that his mother’s mental health began to deteriorate while he was in prison. She suffers from anxiety and depression. She suffers from severe lapses in concentration during which she can collapse without warning. She has been prescribed anti-depressants and sleeping pills. There is no independent or medical evidence to support what the claimant says about his mother.[42]The claimant’s elder sister Sukana is said by the claimant to have a learning and living disability and to have “the mental age of a young child.” The claimant says that she requires “constant assistance to live her life, including cooking, cleaning, bathing and going outside.”[43]The claimant has two younger sisters and a brother. His youngest sister completed her A Levels last summer, so there are presumably no longer any children in the claimant’s immediate family.[44]The claimant describes how he was responsible for Sukana’s care, as well as his relationship with other family members, as follows:
“14. When I was released from prison, I took over much of Sukana’s care to ease my mother’s burden. This was vital because Sukana stopped attending her SEND [i.e. college for persons with Special Educational Needs and Disabilities] during the COVID pandemic so she was at home all the time and required round the clock supervision. She was not able to return to her SEND college after the pandemic because she is too old. My mother and I split Sukana’s care between us as we are the only ones who are at home during the day. My mother takes care of Sukana’s personal hygiene while I do everything else. The rest of my family are unable to assist with Sukana’s care because they are out all day either working full-time or studying. My younger sisters are at college and university so are out studying during the day. My wife, my father, and my brother work full time and are only available in the evening. 15. A typical day of Sukana’s care is as follows. In the morning, I wake her up, help her clean her teeth and brush her hair. I will have washed and ironed her clothes and my mother will dress her. I cook Sukana breakfast and eat with her. After breakfast, I take her to her room and show her how to make her bed and tidy her room. 16. In the morning, I stay with her to keep an eye on her. While I do household tasks such as cleaning or cooking lunch, I may give Sukana some colouring in to do. When I cook lunch, I show her what I am doing as we are trying to foster her independence. 17. In the afternoon, I may take her for a short walk outside, such as to the park or to the shops. She is unable to go outside on her own as she would get lost; she has no sense of direction. 18. In the evening, everyone comes home from work, school and college. Everyone chips in to help make dinner, while I use the time to check my emails, research auctions for my business and do personal administrative tasks that I have not been able to do while looking after Sukana. I help clean up after dinner, while my sisters put Sukana to bed. … 20. I also support my family in other ways. When my sister went to university in Birmingham, I went with her to help her settle in and find accommodation. I helped my sisters study for their exams at school. My youngest sister has A-level exams next summer which I want to be able to help her revise for. I also want to help her settle into university life next September as I did for my other sister.”
[45]The claimant states that he has no family members in Pakistan, as follows:
“18. To my knowledge, I have no living family in Pakistan. My last relative in Pakistan that I am aware of, my grandfather, lived here until his death in 2022. Between 2006 and 2024, I travelled to Pakistan twice. The first was before my conviction, in order to visit my grandfather. The second was in September 2022, to attend my grandfather’s funeral.”

The claimant’s health

[46]The claimant says that he suffers from piles which is constantly painful and uncomfortable. He says that he cannot afford treatment in Pakistan because he is not able to gain employment and is destitute. An appointment letter from Peterborough City Hospital shows that he had been due to undergo a flexible sigmoidoscopy before the ATC decision prevented his return to the UK.

History of proceedings

[47]Following pre-claim correspondence, the present claim for judicial review was issued on 20 December 2024, seeking an order quashing the ATC decision and an award of damages. On 17 February 2025, Cavanagh J granted permission on Grounds 1 and 4 (as summarised above). He refused permission on Ground 2 and on a discrete Ground 3 which is (as I have already mentioned) no longer pursued.[48]On 24 February 2025, the claimant applied to renew his permission application at an oral hearing on Ground 2. On 25 June 2025, the claim was amended to include a challenge to the exclusion decision (Grounds 3A, 5 and 6 summarised above). In this way, the claim came before me as a substantive hearing on grounds for which Cavanagh J had granted permission and a rolled-up hearing on grounds for which he had not.[49]I should also note that, following a case management hearing on 8 October 2025, the First-tier Tribunal (Immigration and Asylum Chamber) (“the FTT”) decided to accept jurisdiction to determine an out-of-country appeal on article 8 grounds against the cancellation of the claimant’s ILR and his exclusion from the UK.[50]I was told that the Secretary of State seeks to challenge the FTT’s decision on jurisdiction. Nevertheless, the existence of tribunal proceedings means that the important issue of whether the exclusion decision is compatible with article 8 of the Convention is not before this court.

The law

[51]Much of the legal argument before me concerned the implications of the claimant’s status as a Pakistani national who is therefore a Commonwealth citizen. Mr Halim submitted that the claimant’s status as a Commonwealth citizen gave him rights to enter and stay in the UK which the decisions under challenge had breached. He relied on the rights of Commonwealth citizens at common law as governed by the Royal Prerogative. Ms Barnes submitted that common law rights have been overtaken by statute. I turn, therefore, to the relevant law in this area.

Immigration Act 1971

[52]I turn first to the Immigration Act 1971 (“the 1971 Act”) because its enactment laid the foundations of contemporary immigration control. The long title states that it is an Act to:
“amend and replace the present immigration laws, to make certain related changes in the citizenship law and enable help to be given to those wishing to return abroad, and for purposes connected therewith”
(emphasis added).[53]Section 2 of the 1971 Act in its current form has the heading “Statement of right of abode in the United Kingdom.” In so far as relevant, it provides:
“(1) A person is under this Act to have the right of abode in the United Kingdom if— (a) he is a British citizen; or (b) he is a Commonwealth citizen who— (i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and (ii) has not ceased to be a Commonwealth citizen in the meanwhile.”
[54]It will readily be seen that the right of abode inheres only in British citizens and in a vanishingly small class of Commonwealth citizens towards whom the Government considered it retained duties. The claimant is not a member of that class.[55]Section 1 of the 1971 Act distinguishes those with the right of abode from others. It provides in so far as relevant:
“(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. (2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act...”
(emphasis added).[56]Section 3(1) of the 1971 Act makes provision about leave to enter and remain. It provides in so far as relevant:
“Except as otherwise provided by or under this Act, where a person is not a British citizen he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period…”
(emphasis added).[57]Section 33(1) of the 1971 Act defines “limited leave” and “indefinite leave” as meaning leave under the 1971 Act to enter or remain in the UK which (respectively) is and is not limited as to duration.[58]Although ILR is granted without limit as to duration, a person arriving in the UK with ILR remains liable to examination at port of entry: paragraphs 2 and 2A of Schedule 2 to the 1971 Act. By virtue of secondary legislation, a person’s ILR does not lapse upon his or her leaving the UK. Upon return to the UK, ILR will be treated by an examining immigration officer as leave to enter which has been granted to the holder before his or her arrival: article 13(2) and (5) of the Immigration (Leave to Enter and Remain) Order 2000 (“the 2000 Order” or “the Order”).[59]Although ILR is non-lapsing leave under the Order, Parliament has conferred on the Secretary of State various methods by which she may bring ILR to an end. She may revoke ILR under section 76 of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”). She may cancel it under article 13(7) of the Order or paragraph 2A(3) of Schedule 2 to the 1971 Act. She may make a deportation order, which invalidates any leave the deportee holds (section 5(1) of the 1971 Act).

Immigration Rules

[60]Section 3(2) of the 1971 Act provides for the making of immigration rules in the following terms:
“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances… If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).”

Royal Prerogative

[61]Section 33(5) of the 1971 Act states that the Act:
“shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of her prerogative”
(emphasis added).[62]I would gratefully adopt the explanation of the term “aliens” in R (AFA) v Secretary of State for the Home Department [2025] EWCA Civ 825, para 49, per Singh LJ:
“The reference to ‘aliens’ is, strictly speaking, a reference to foreign nationals of countries which are not in the Commonwealth: Commonwealth citizens are not in law ‘aliens’, although, since the independence of their respective countries, they are no longer British subjects but are foreign nationals.”
[63]As a citizen of Pakistan, the claimant has the status of a Commonwealth citizen (section 37(1)(b) of, and Schedule 3 to, the British Nationality Act 1981). Whether section 33(5) of the 1971 Act removes prerogative powers in relation to the entry, stay and exclusion of Commonwealth citizens (as opposed to aliens) is a core issue in Ground 5.

Deportation of foreign criminals

[64]The deportation of foreign criminals is governed by the provisions on “automatic deportation” under the 2007 Act. Section 32 of that Act provides in so far as relevant:
“32 Automatic deportation (1) In this section ‘foreign criminal’ means a person– (a) who is not a British citizen or an Irish citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (3) Condition 2 is that– (a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and (b) the person is sentenced to a period of imprisonment. (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). … (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.” but section 32(4) applies despite the application of Exception 1 or 4.”
[65]Section 33 of the 2007 Act provides in so far as relevant:
“33 Exceptions (1) Section 32(4) and (5)– (a) do not apply where an exception in this section applies (subject to subsection (7) below), and (b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

(a) a person's Convention rights…”

[66]It is not in dispute that the claimant is a “foreign criminal” within the meaning of section 32(1)-(3) of the 2007 Act. As such, if he had remained in the UK, his deportation would have been deemed “conducive to the public good” by virtue of section 32(4). The Secretary of State would have been under a statutory duty to make a deportation order against him unless one of the exceptions in section 33 of the Act applied (section 32(5)). There is an exception where “removal of the foreign criminal in pursuance of the deportation order would breach a person’s Convention rights” (section 33(2)(a)). If an exception applies, a person may be made the subject of a deportation order but there is no statutory obligation upon the Secretary of State to make one; in such circumstances, deportation would no longer be “automatic” (section 33(7) of the 2007 Act).[67]The administrative procedure for making an automatic deportation order is set out in Instructions to Home Office staff (Version 5, 22 May 2025). There are essentially three stages. At Stage 1, the decision-maker must consider whether the foreign national meets the criteria for automatic deportation. If so, a Stage 1 decision letter is issued informing the individual concerned that his or her deportation is conducive to the public good. The decision letter must inform the individual that he or she may make representations within 28 days as to why deportation should not take place.[68]At Stage 2, the decision-maker must consider any representations made by the individual and decide whether deportation remains appropriate in light of any new information or evidence provided. If deportation is to be pursued, there is a third stage under which a deportation order is (in the words of the Instructions) “obtained.” A Stage 2 deportation decision and the deportation order will be sent to the individual at the same time.

The ATC Scheme

[69]The ATC Scheme was made under section 22 of the CTSA which provides:
“(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. … (7) The grant or refusal of authority under an authority-to-carry scheme does not determine whether a person is entitled or permitted to enter the United Kingdom.”
[70]Section 23 of the CTSA provides in so far as relevant:
“(1) An authority-to-carry scheme comes into force in accordance with regulations made by the Secretary of State by statutory instrument. (2) The Secretary of State must not make regulations bringing a scheme into force unless— (a) a draft of the regulations and the scheme to which they relate have been laid before Parliament, and (b) the draft regulations have been approved by a resolution of each House.”
[71]The present ATC Scheme was laid before Parliament on 9 January 2023. Pursuant to section 23(2) of the CTSA, the Secretary of State made the Authority to Carry Scheme and Civil Penalties Regulations 2023 on 13 March 2023 which provided for the Scheme to come into force on 3 April 2023.[72]Paragraph 14(f) of the Scheme provides that authority to carry a person to the United Kingdom may be refused in respect of:
“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”
(emphasis added).”[73]The meaning of the phrase “in the process of making the subject of a deportation order”, and whether it is wide enough to include a person subject to a Stage 1 deportation decision, forms the core issue in Ground 2.

Ground 1: Lawfulness of paragraph 14(f) of the Scheme

(f) of the Scheme Legal framework: the principle of legality

[74]Mr Halim submitted under Ground 1 that the claimant had a fundamental right to enter the UK which the ATC Scheme could not lawfully override. The common law has recognised that some rights are to be treated as fundamental or constitutional. Mr Halim used the phrase “vested rights” but did not elucidate the concept of a vested right as anything different from a fundamental or constitutional right. I shall use the term “fundamental right” as a shorthand for fundamental and constitutional rights.[75]It is well-established that there is a special and rigorous rule of statutory construction, embodied in the principle of legality, which applies to the court’s interpretation of legislation that touches on fundamental rights. This special rule was expressed by Lord Hoffmann in the familiar passage of R v Secretary of State for the Home Department, Ex Parte Simms [2000] 2 A.C. 115, 131E-F:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights… But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual”
(emphasis added).[76]The principle of legality was restated by Lord Reed in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46, [2012] 1 A.C. 868, para 152:
“The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so. As Lord Browne-Wilkinson stated in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575: ‘A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect … the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.’” ‘A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect … the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.’”
[77]There was no dispute before me about the scope or nature of the principle of legality. The dispute between the parties related to whether the principle applies in this case.

Overview of the claimant’s submissions

[78]Mr Halim submitted that paragraph 14(f) of the Scheme is ultra vires section 22 of the CTSA because it interferes impermissibly with two fundamental rights. First, he submitted that the claimant as a Commonwealth citizen or as a person holding ILR had the fundamental right to re-enter the UK which the ATC decision prevented. I shall call this first strand of the argument “the immigration argument.” Secondly, he relied on the right of access to justice. I shall call this second strand “the access to justice argument.”[79]Relying on the principle of legality, Mr Halim submitted that interference with these rights will only be lawful if Parliament has authorised the interference either by express words or by necessary implication in the statute. He contended that nothing in the language of section 22 of the CTSA could satisfy either of those tests, such that paragraph 14(f) is ultra vires.[80]I shall consider each of the two strands of Mr Halim’s arguments in turn.

The immigration argument: the parties’ submissions

[81]As regards the immigration argument, Mr Halim submitted that the claimant, as a Commonwealth citizen, has the right of abode at common law. He submitted that the common law has long recognised the right of abode as being a fundamental right, such that the principle of legality is engaged. The court must apply the principle of legality to the interpretation of section 22 of the CTSA in order to ascertain whether Parliament has, by virtue of that section, authorised the cutting down of the fundamental right of abode which paragraph 14(f) of the Scheme represented.[82]Mr Halim accepted that ILR may be brought to an end by revocation, cancellation or deportation. He submitted, however, that unless and until the Secretary of State exercises any of her statutory powers to bring a person’s ILR to an end in one of those ways, that person retains a fundamental right to enter the UK. He clarified his position by saying that, while there is no fundamental right to be granted ILR, a person (or at least a Commonwealth citizen) who has such leave enjoys a fundamental right to enter and remain.[83]Mr Halim submitted that if section 22 of the CTSA were to be interpreted so widely as to allow a person with ILR to be prohibited from entry to the UK through the mechanism of the ATC Scheme, the fundamental right of entry would be cut down by a side wind, through a Scheme made under delegated legislation. Parliament cannot have intended such an outcome.[84]Ms Barnes submitted that the common law position is now historical and that the governing legal framework is to be found in the 1971 Act which does not bestow a right to enter the UK upon those with ILR. The provisions for the regulation and control of immigration in section 3 of the 1971 Act do not mean that any person granted leave to remain (whether on a limited or indefinite basis) has a right to enter the UK. Section 3 provides only that a person shall not enter the UK unless granted permission to do so by the Secretary of State. The terms of section 3 mean that the Secretary of State has wide, discretionary powers as to whether to grant leave to enter or remain in the UK. Section 22 does not therefore cut down rights and no issue with the vires of paragraph 14(f) arose.[85]Ms Barnes submitted, in the alternative, that any right to ILR under the 1971 Act is not of a fundamental nature. The principle of legality did not therefore require express wording or a necessary implication that Parliament intended to intrude upon fundamental rights. Ordinary principles of statutory interpretation, rather than the interpretative principle of legality apply. On ordinary principles, if section 22 cuts down rights, then the language of section 22 plainly provides the power to do so.

The immigration argument: analysis and conclusions

[86]Mr Halim’s submissions rest on the proposition that the principle of legality applies to the interpretation of section 22 of the CTSA because the ATC decision, made under a section 22 scheme, engaged the claimant’s fundamental common law rights as a Commonwealth citizen or as a person with ILR. It is therefore necessary to consider whether either his status as a Commonwealth citizen or his status as the holder of ILR engaged the claimant’s fundamental rights as Mr Halim contended.

(i) Status as Commonwealth citizen

[87]The common law had by the time of Blackstone recognised the right of abode of British subjects (see Lord Reed PSC’s analysis in QX v Secretary of State for the Home Department [2024] UKSC 26, [2025] AC 995, paras 70-76). British subjects included Commonwealth citizens who had “the right at common law to enter the UK without let or hindrance when and where [they] pleased” and to remain here as long as they pleased (Director of Public Prosecutions v Bhagwan [1972] AC 60, 74B, per Lord Diplock). The common law in this way distinguished between Commonwealth citizens, who owed allegiance to the Crown and to whom the Crown owed duties, and aliens. At common law, the Royal Prerogative was used to control the entry and stay of aliens but it could not be exercised against British subjects (including Commonwealth citizens) who had the right of abode.[88]This position was encapsulated by Lord Dyson JSC in R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1 WLR 2192, para 23:
“The traditional view is that the situation of British subjects differed from that of all aliens. British subjects, including Commonwealth citizens until the passing of the Commonwealth Immigrants Act 1962, had a right of abode in the United Kingdom, whereas aliens did not. Until the passing of the 1962 Act, the prerogative power that existed to control the entry and expulsion of aliens could not be exercised in relation to a Commonwealth citizen”
(emphasis added).[89]Lord Reed in QX, para 72, referred to the “absolute nature of the right of abode of British citizens.” The status of citizenship is a fundamental status at common law from which flows a common law right of abode (R (N3) v Secretary of State for the Home Department [2025] UKSC 6, [2025] 2 WLR 386, paras 26 and 27 and cases cited therein). Mr Halim is correct to say that the fundamental importance of a person’s status as a British citizen engages the principle of legality (N3, para 28; see also Lord Reed’s analysis in QX, para 73).[90]It does not, however, follow that the principle of legality applies to the interpretation of legislation as it affects Commonwealth citizens. By contrast to British citizens, the common law right of abode of Commonwealth citizens has been qualified by Parliament.[91]First, it is plain from section 2(1) of the 1971 Act that Parliament has put into abeyance the common law right of abode of Commonwealth citizens save for the vanishingly small class that I have mentioned above. As expressed by Lord Reed in QX, para 74, by reference to Lord Mance’s judgment in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453:
“… Lord Mance described the common law right as fundamental and constitutional (para 151). He continued (ibid): ‘In respect of persons who were British citizens by virtue of their connection with a part of the Commonwealth other than the United Kingdom, that right was from 1962 onwards made subject progressively to statutory qualifications: see R v Bhagwan and R v Governor of Pentonville Prison, Ex p Azam [1974] AC 18. Thus, from 1973 when the Immigration Act 1971 came into force, all Commonwealth citizens entering the United Kingdom without leave were liable to prosecution. But the common law right to enter and remain within the United Kingdom remains unchanged in respect of those with British citizenship based on their connection with the United Kingdom.’ This passage expressly considers the impact of the 1971 Act on the common law right of abode, and treats it as having imposed a qualification upon the persons entitled to the right, but as having otherwise left the common law right unaltered”
(emphasis added). ‘In respect of persons who were British citizens by virtue of their connection with a part of the Commonwealth other than the United Kingdom, that right was from 1962 onwards made subject progressively to statutory qualifications: see R v Bhagwan and R v Governor of Pentonville Prison, Ex p Azam [1974] AC 18. Thus, from 1973 when the Immigration Act 1971 came into force, all Commonwealth citizens entering the United Kingdom without leave were liable to prosecution. But the common law right to enter and remain within the United Kingdom remains unchanged in respect of those with British citizenship based on their connection with the United Kingdom.’[92]The qualification to which Lord Reed refers relates to Commonwealth citizens. As a Commonwealth citizen who does not fall within the residual class defined in section 2(1)(b) of the 1971 Act, the claimant does not have the right of abode in the UK either under statute or at common law.[93]Secondly, subject to the saving in relation to aliens in section 33(5) of the 1971 Act which I have quoted in paragraph 61 above, Parliament’s intention in the 1971 Act was that “all powers of immigration control were to be exercised pursuant to the statute” (Munir, para 25). It follows that, by the time of the passing of the 1971 Act, the scope for the Crown to exercise the Royal Prerogative in matters of immigration control had been radically reduced and that Parliament’s supremacy bound the Crown to follow the statute.[94]The relevant statutory power is for present purposes section 3(1) of the 1971 Act. The combined effect of enacting sections 2(1) and 3(1) of the 1971 Act was that, from then onwards, those who did not have British citizenship were able to enter and remain only by the “leave” (i.e. permission) of the Secretary of State.[95]There is no exception for Commonwealth citizens. By virtue of section 3(1), Commonwealth citizens who do not have the right of abode are subject to immigration control in the same way as others who are not British citizens. They require leave to enter and remain which is permissive in nature and which does not involve the exercise of a fundamental right. In so far as Mr Halim relied on the claimant’s status as a Commonwealth citizen to found an argument on the principle of legality, he fails. (ii). Status as holder of ILR[96]I turn to the question whether the principle of legality is engaged by the fact that the claimant had ILR at the time of the ATC decision. Mr Halim cited no authority for the proposition that the holding of ILR (as opposed to citizenship) is or gives rise to fundamental rights so as to engage the principle of legality. In the absence of authority, I am not inclined to expand the panoply of fundamental rights so as to include the residence rights of non-citizens. An expansive approach to which rights count as fundamental could lead the courts to impose a rigorous rule of statutory construction on any number of marginal claims of right and so “trespass unduly on Parliament’s field” and weaken “the claim of the courts to protect what are indeed fundamental rights” (R v Lord Chancellor, Ex parte Lightfoot [2000] QB 597, 609B-D, per Laws J (as he then was)). That a person may be granted leave without limit as to duration does not in my judgment establish or reflect a fundamental right.[97]That ILR is a form of non-lapsing leave under the 2000 Order does not change this analysis. The grant and retention of non-lapsing ILR still involves a discretion bestowed upon the Secretary of State by Parliament under section 3 of the 1971 Act. If the discretion is improperly or unreasonably exercised, this court will (absent an adequate alternative remedy in the FTT) exercise its supervisory powers and enforce the correct legal position by way of judicial review. To this extent, a person who meets the criteria for ILR may in general rely on the non-lapsing nature of ILR to enter the UK upon return from overseas, as his or her exclusion would be unlawful and remediable by way of judicial review. It seems to me that that is what Mr Halim really meant by saying that the grant of non-lapsing ILR provides the “right” to enter the UK and that that “right” subsists unless and until some further action, such as revocation or cancellation of leave, is taken. However, the non-lapsing nature of ILR does not convert a permission into a right, whether fundamental or otherwise.[98]In any event, any right that the claimant had to re-enter the UK would not advance his claim. Any such right would arise from the 1971 Act. The claimant was not, however, refused entry under the 1971 Act but was the subject of a refusal of authority to carry under an authority-to-carry scheme made under section 22 of the CTSA. Section 22 does not have the same purpose as the 1971 Act. It does not deal with immigration rights. The statutory purpose of section 22 is to permit the Secretary of State to make authority-to-carry schemes in the public interest (section 22(3)). The claimant cannot demand that the court apply the principle of legality to prevent immigration rights from being cut down by section 22 because section 22 is not concerned with immigration rights at all.[99]That section 22 is not concerned with immigration rights is demonstrated by its language. On a plain reading of the statutory language, the grant or refusal of authority to carry expressly “does not determine whether a person is entitled or permitted to enter the United Kingdom” (section 22(7)). In relation to non-British citizens, the effect of section 22 is that, for certain defined classes of person, the State’s duty to protect the public from (for example) serious criminality will prevail over any immigration status that an individual may wish to assert upon entry to the UK. The selection of those classes is the province of the executive branch of government which formulates and operates the ATC Scheme. For well-established reasons of democratic accountability and institutional competence, this court will be slow to interfere.[100]For these reasons, the claimant did not have a fundamental right to enter the UK. It follows that the claimant does not establish that the special principle of construction imposed by the principle of legality should apply to section 22 of the CTSA. No fundamental right is engaged upon which that principle may gain a purchase and the claimant cannot advance his claim of ultra vires by reference to fundamental rights either as a Commonwealth citizen or someone who at the material time held ILR. The immigration argument fails.

The access to justice argument: the claimant’s submissions

[101]I turn to the second strand of Mr Halim’s submissions which is the access to justice argument. As regards the right of access to justice, Mr Halim submitted that the ATC decision had the effect of depriving the claimant of an in-country right of appeal against the refusal of any human rights claim. He made the point that, if the claimant had been allowed to return to the UK and if the Secretary of State had then started deportation proceedings against him, any appealable refusal of a human rights claim would have been appealable in-country, under sections 82 and 92 of the NIAA 2002. However, as the claimant is located in Pakistan, he would have only an out-of-country appeal (section 92(4) of the NIAA 2002) which, by its nature, erected such practical barriers to justice that it did not amount to “effective justice in the real world” (R (FB (Afghanistan)) v Secretary of State for Home Department [2020] EWCA Civ 1338, [2022] QB 185, para 9). He submitted that the effect of the ATC decision would be to make such serious inroads into fundamental principles of fairness that the claimant would be deprived of the fundamental right of access to justice.[102]For an exposition of the fundamental nature of the right of access to justice, Mr Halim drew attention to R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409, paras 86-98. He submitted that section 22 could not, and should not, be interpreted so as to permit interference with this fundamental right.

The access to justice argument: analysis and conclusions

[103]The claimant’s submissions focus on the ATC decision as being the decision that kept the claimant out of the country and which led to the inevitable consequence that any future human rights appeal against a subsequent immigration decision would necessarily be an out-of-country appeal with the practical limitations and difficulties that flow from being unable to conduct an appeal from within the UK. The disadvantages to an appellant of an out-of-country appeal were described by Lord Wilson JSC in Kiarie v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380, paras 60-78. There is no need to repeat them here.[104]It is however necessary to bear in mind the context of the claimant’s arguments. Ground 1 is a challenge to the vires of paragraph 14(f). The claimant invokes the fundamental right of access to justice in order to persuade the court to deploy the principle of legality in support of the vires argument. This is the specific and narrow basis on which the court is asked to consider whether an out-of-country appeal is a failure of access to justice.[105]In this specific and narrow context, the claimant’s arguments fail for the following reasons. First, I agree with Ms Barnes that the claimant has referred to no authority for the proposition that the common law principle of access to justice requires an in-country, as opposed to out-of-country, right of appeal. Kiarie and Byndloss did not concern common law rights but was concerned with whether an out-of-country appeal breached the procedural requirements of article 8. Ground 1 of the present claim does not touch on article 8. There is no reason for the court to fill any lacuna in the claimant’s grounds.[106]Secondly, even if the recognised difficulties of an out-of-country appeal infringe the fundamental common law right of access to justice, the infringement has been expressly authorised by Parliament which has, in sections 82 and 92 of the NIAA 2002, legislated for out-of-country appeals in human rights cases where the individual is outside the UK at the time that the human rights claim is made. As Ms Barnes submitted, any interference with the common law right of access to justice was a matter for Parliament.[107]Thirdly, an ATC decision is not in itself a precursor to, or connected with, any right of appeal to the FTT which deals only with challenges to specified decisions (NIAA 2002, section 82). An appeal will arise when a person makes a human rights claim (which is a claim made to the Secretary of State) and receives a decision from the Secretary of State rejecting the claim. That is an inherently discrete process. It is not the same as the ATC process which does not yield appeal rights.[108]If the ATC decision is unlawful, it will not survive judicial review proceedings. By way of relief, the court may order the Secretary of State to arrange for a person’s return to the UK from where a human rights claim may be made with an in-country right of appeal. If an ATC decision is lawful, it is a consequence of the statutory scheme for appeals that a human rights appeal will be out of country. The principle of legality has no part to play. For these reasons, the access to justice argument fails.

Conclusion on Ground 1

[109]For these reasons, paragraph 14(f) is not ultra vires section 22 of the CTSA but supports the statutory objective and falls within its ambit. In the present case, paragraph 14(f) was deployed to prevent the claimant – a person convicted of involvement with two kinds of Class A drug and who drove a vehicle at a police officer – from travelling to the UK pending more permanent measures. As paragraph 14(f) is not ultra vires, Ground 1 is dismissed.

Ground 2: Applicability of paragraph 14(f) of the Scheme

(f) of the Scheme

[110]Turning to Ground 2, I grant permission to apply for judicial review and consider this ground on a substantive basis. The claimant’s submissions[111]Mr Halim submitted that the phrase “in the process of making…a deportation order” in paragraph 14(f) does not apply to the claimant’s case because it is not apt to describe the period between a Stage 1 and Stage 2 deportation decision (the latter stage being when a decision to deport is made). He submitted that, during the period between Stages 1 and 2, the Secretary of State is not in the process of “making” a deportation order but is still in the process of deciding whether to make one.[112]Mr Halim submitted that the Stage 1 decision is not a final or concluded decision but is more like a “minded to deport” notice, giving the potential deportee an opportunity to make representations as to why he or she should not be deported. As any human rights claim will not be considered until Stage 2, the Secretary of State cannot lawfully reach any decision at Stage 1 because she must keep an open mind until she has received and considered representations relating to human rights. Stage 1 is a preliminary, pre-decision process.[113]Mr Halim submitted that the words “in the process of making… a deportation order” describe the period between Stage 2, when a concluded decision to make a deportation order has been made, and the obtaining of the deportation order.

The defendant’s submissions

[114]Ms Barnes submitted that the words “whom the Secretary of State is in the process of making the subject of a deportation order under the Immigration Act 1971” are broad enough to cover an individual, such as the claimant, who has received a Stage 1 deportation decision. She submitted that the issuing of a Stage 1 decision indicates the Secretary of State’s decision to deport an individual and invites any representations as to why deportation should not be pursued. She submitted that the Stage 1 decision is a critical first step directed at making a deportation order against an individual and obviously forms part of that process.[115]Ms Barnes emphasised that the Secretary of State was under a duty, pursuant to section 32 of the 2007 Act, to make a deportation order unless any of the exceptions set out in section 33 applied. She submitted that none of those exceptions had been shown to apply at the time of the ATC decision, by which time the Secretary of State had decided to take the necessary steps to deport the claimant, albeit subject to consideration of submissions to the contrary. She submitted that, for the purposes of paragraph 14(f), the process of making a deportation order has clearly started when the Secretary of State issues the Stage 1 decision, even though the Secretary of State may ultimately decide not to make the order. Analysis and conclusions[116]There is some force in Mr Halim’s submissions but in my judgment Ms Barnes’ submissions must prevail.[117]The focus must be the Stage 1 decision itself. It is headed “Notice of Decision” and “Decision to deport pursuant to the Immigration Act 1971 and the UK Borders Act 2007.” The decision itself is divided into three parts. Part 1 has the subheading “Deportation decision.” It sets out the nature of the claimant’s 2018 convictions and the sentence imposed. It states that the claimant is a “foreign criminal” within the definition of section 32(1) of the 2007 Act. It states that, under section 32(5) of that Act, the Secretary of State must make a deportation order in respect of a foreign criminal, unless one or more of the exceptions in section 33 applies and that the claimant had not shown that any of the exceptions applied to him. It goes on to say:
“The deportation of a foreign criminal is conducive to the public good. The public interest in your deportation is further strengthened because of your 3 previous convictions and 8 offences.”
[118]Part 2 of the decision is entitled “Considerations in your deportation decision.” It states that “[t]he Secretary of State has decided that your deportation is conducive to the public good” and that, in reaching this decision, the Secretary of State had taken into consideration the 2018 offences and the claimant’s immigration history. Part 3 of the decision invited the claimant to inform the Secretary of State of any reasons why he should not be deported, setting a 28-day deadline for doing so.[119]The Stage 1 decision thus has the form of a decision and in my judgment it is a decision in substance too. It shows that the Secretary of State decided to deport the claimant on the grounds that the conditions for deportation under section 32 of the 2007 Act had been met.[120]Mr Halim emphasised that section 32 of the 2007 Act concerns “automatic” deportation. The “automatic” nature of the Stage 1 process is such that it does not generate a decision in any meaningful, public law sense but amounts to no more than a declaration of an objective state of affairs or existing position under the 2007 Act.[121]In my judgment, Mr Halim’s analysis overlooks the function of the Secretary of State. The Secretary of State – not Parliament – is legally and constitutionally responsible for making decisions about deportation. She pays the legal and political price if she fails to deport someone who should be deported or if she deports someone who should not be deported.[122]By enacting the strict provisions of section 32, Parliament has given the Secretary of State no room for manoeuvre as to whether the deportation of a foreign criminal is conducive to the public good: Parliament has said that it is (section 32(4)). There is also no room for manoeuvre in so far as deportation on “conducive” grounds is “automatic” in non-exceptional cases (section 32(5)). However, it is the Secretary of State’s duty to consider and decide whether a person is a “foreign criminal” under section 32 of the 2007 Act and whether any of the exceptions within section 33 apply. To this extent, even under the provisions for automatic deportation, a decision to deport is an executive decision taken by the Secretary of State in each individual case. In my judgment, the Stage 1 decision was a decision made by the Secretary of State at the first stage of the deportation process.[123]In post-hearing written submissions, the claimant drew the court’s attention to AA [2025] EWHC 3404 (Admin) in which this court held that a Stage 1 deportation decision is not a decision to make a deportation order within the meaning of section 259(a) of the Criminal Justice Act 2003 such that a person at Stage 1 of the deportation process remains eligible for early release from prison on Home Detention Curfew under section 246 of that Act. The judge held that liability to deportation may be communicated in a Stage 1 decision but that a decision to deport is a different matter.[124]I have not found it easy or helpful to compare the differently-worded statutory provisions for early release with the language of paragraph 14(f). Only the latter is relevant in the present claim. Irrespective of any approach that Parliament may have adopted for the release of foreign nationals from prison, I am not persuaded that a Stage 1 decision is in fact devoid of any decision. That the Secretary of State must keep an open mind at Stage 1, and must consider any evidence and arguments later made against deportation, does not imply that the Secretary of State has not made a decision to deport. Nor does it imply that the Secretary of State is not “in the process of making” a deportation order.[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. It follows that, at the time of the ATC decision, the Secretary of State had decided to deport the claimant and that she was “in the process” of making the claimant the subject of a deportation order within the meaning of paragraph 14(f).[126]Mr Halim submitted that the final clause of paragraph 14(f) supported his contrary interpretation. That clause empowers the Secretary of State to refuse authority to carry those “who were subject to deportation proceedings but left the UK before those proceedings concluded.” He submitted that the reference to “deportation proceedings” in this part of paragraph 14(f) plainly includes Stage 1 of the deportation process. The language was different to the earlier part of the paragraph which referred to “in the process of making the subject of a deportation order.” The difference of language was intentional so that “the process of making the subject of a deportation order” had a different, narrower meaning that did not include a Stage 1 decision.[127]In response to this argument about the wider interpretation of paragraph 14(f), Ms Barnes submitted that the ATC Scheme is a statement of executive policy which, although brought into effect by secondary legislation and laid before Parliament, should not be subject to the same strict principles of statutory interpretation as primary or secondary legislation. I agree. Nothing in paragraph 14(f) undermines the interpretation advanced by the Secretary of State.[128]For these reasons, Ground 2 is refused.

Ground 4: Article 8

[129]It is convenient to deal next with Ground 4 and issues relating to the claimant’s right to respect for private and family life under the Convention. This Ground was found by Cavanagh J to be “just arguable.”

The claimant’s submissions

[130]Mr Halim submitted under this Ground that the ATC decision engaged and interfered with the claimant’s article 8 rights in three principal ways. First, it had separated him from his family members in the UK pending his appeal to the FTT. Mr Halim submitted that this enforced absence has already had, and will continue to have, a “ruinous impact” on the claimant’s private and family life. He directed the court’s attention to the claimant’s own evidence that he has been precluded from performing his former role as the primary carer for elder sister and his mother, a relationship which he submitted amounted to family life within the meaning of article 8, since it involved “real or effective or committed”support (Uddin v Secretary of State for the Home Department [2020] EWCA Civ 33, para 31). Mr Halim submitted that the claimant is now in dire financial straits, unable to afford essential medical treatment, and eating an inadequate diet. He is no longer receiving any income, other than remittances from his UK family members, who can ill afford it.[131]Secondly, Mr Halim submitted that his separation from family puts at risk the substantive merits of the claimant’s FTT appeal as, by the time that his appeal is likely to be heard, his integration within UK society will have been cut away and his relationships with family members ruptured (Kiarie & Byndloss, paras 57-58). Thirdly, Mr Halim submitted that an out-of-country appeal breached the procedural element of article 8 because the Pakistani Government has an undisputed record of refusing to respond to Foreign Office requests for persons to give evidence to UK courts and tribunals by video link from Pakistan. The claimant was in the circumstances highly unlikely to be able to give oral evidence at his appeal which would render it unfair (Kiarie v Byndloss, para 61).

Analysis and discussion

[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).

Ground 3A: Historic injustice

[142]Mr Halim submitted that the refusal of authority to carry was vitiated by a public law error, namely one of the errors for which he had contended under Grounds 1, 2 and 4. He submitted that the claimant had suffered an historic injustice, in the sense that he had “suffered as the result of the wrongful operation (or non-operation) by the respondent of her immigration functions” (Patel(historic injustice; NIAA Part 5A) [2020] UKUT 351, para 42). He submitted that, specifically, the claimant had suffered injustice because, if he had not suffered the wrongful and unlawful operation of the ATC Scheme, he could and would have made a human rights claim in the UK, the refusal of which would have given rise to an in-country appeal right. The loss of the benefits of an in-country appeal flowed from an historic injustice.[143]Mr Halim contended that this historic injustice was a relevant consideration, which the Secretary of State was obliged to take into account, in the decision whether to exclude the Claimant from the UK and cancel his indefinite leave to remain (SL (Vietnam) [2010] EWCA Civ 225; GE (Eritrea) [2014] EWCA Civ 1490. The Secretary of State had unlawfully failed to take this injustice into account when deciding to exclude the claimant and keep him out of the UK.[144]Ms Barnes submitted that this Ground was predicated upon the court finding that the ATC decision was vitiated by public law error and did not otherwise arise. She submitted that, in any event, even if the ATC were found to be unlawful, the exclusion decision was not flawed by a failure to consider an historic injustice. The Secretary had been entitled to make the exclusion decision on the basis that her earlier decision, made in good faith, was lawful until demonstrated otherwise.[145]Given that the ATC was lawfully made, it cannot lay the foundations for an argument that the claimant has suffered an historic injustice or that the Secretary of State should have considered the question of historic injustice before she made the exclusion decision. I agree with Ms Barnes that this Ground falls away and is not arguable with reasonable prospects of success. Accordingly, I refuse permission to apply for judicial review on Ground 3A.

Ground 5: Exclusion decision

[146]Mr Halim submitted that the exclusion decision was unlawful because there was no power to exclude the claimant from the UK by personal direction of the Secretary of State. In support of this proposition he relied on Court of Appeal authority that the Secretary of State’s power to exclude a person from the UK by personal direction derives from the Royal Prerogative: R (G1) v Secretary of State for the Home Department [2012] EWCA Civ 867, [2013] QB 1008, paras 10-17. He submitted that G1 is binding authority that the 1971 Act was not the source of the power to exclude the claimant and that, as the Royal Prerogative has never conferred a power to control the entry and movement of Commonwealth citizens, the exclusion decision made against the claimant was ultra vires.

Analysis and discussion

[147]It is at this juncture necessary to turn in more detail to the effect of section 33(5) of the 1971 Act. In Munir, Lord Dyson (with whom the other members of the court agreed) considered its effect and held:
“Of particular significance is section 33(5): ‘This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.’ This saving provision gives rise to two inferences. First, Parliament must have considered that the prerogative power to regulate immigration control did not apply to those who owed their allegiance to the Crown, that is British and Commonwealth citizens, and only applied to aliens. Otherwise, Parliament would surely have made some provision as to how, if at all, the prerogative power was to be exercised in relation to Commonwealth citizens. Secondly, Parliament must have intended that, subject to the saving in section 33(5), all powers of immigration control were to be exercised pursuant to the statute. These inferences are supported by the fact that, when promoting the 1971 Act, the Government made it clear that it intended that the use of the prerogative should be limited to controlling the entry of enemy aliens into the United Kingdom. On 3 August 1971, Lord Brockway moved an amendment to the Bill to omit clause 33(5). The debate included the following exchanges Hansard (HL Debates), 3 August 1971, cols 1046–1047: ‘Lord Brockway. I desire to move this amendment largely to obtain information. Subsection (5) of this clause reads: ‘This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.’ I want to ask what these powers are. The powers which are in the Bill already are so comprehensive and of such detail that I find it difficult to think that any additional powers are necessary. When immigration is to be regulated by the rules under the Bill, why should it be necessary to have extra powers of this kind, powers of which we have no knowledge? Why should these powers be extended by the Royal prerogative? Lord Windlesham. I think I can answer the noble Lord quite briefly. The prerogative powers in question have existed for very many years. They include the power in the Crown at times of war to intern, expel or otherwise control enemy aliens at its discretion, which is exercised on the advice of the Home Secretary…The Government do not think it necessary to surrender these powers, which go back many years. We are talking about residuary prerogative powers for the kind of exceptional circumstances which have arisen in this century only on the occasions of the two world wars. Lord Brockway. In view of the assurances given by the noble Lord, I beg leave to withdraw the amendment.’ 26. In my view, the power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the prerogative. As its long title indicates, the purpose of the 1971 Act was to replace earlier laws with a single code of legislation on immigration control. Parliament was alive to the existence of the prerogative power in relation to enemy aliens and expressly preserved it by section 33(5). But prima facie, subject to the preservation of that power, the Act was intended to define the power to control immigration and say how it was to be exercised”
(emphasis added). ‘Lord Brockway. I desire to move this amendment largely to obtain information. Subsection (5) of this clause reads:
‘This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.’
I want to ask what these powers are. The powers which are in the Bill already are so comprehensive and of such detail that I find it difficult to think that any additional powers are necessary. When immigration is to be regulated by the rules under the Bill, why should it be necessary to have extra powers of this kind, powers of which we have no knowledge? Why should these powers be extended by the Royal prerogative? Lord Windlesham. I think I can answer the noble Lord quite briefly. The prerogative powers in question have existed for very many years. They include the power in the Crown at times of war to intern, expel or otherwise control enemy aliens at its discretion, which is exercised on the advice of the Home Secretary…The Government do not think it necessary to surrender these powers, which go back many years. We are talking about residuary prerogative powers for the kind of exceptional circumstances which have arisen in this century only on the occasions of the two world wars. Lord Brockway. In view of the assurances given by the noble Lord, I beg leave to withdraw the amendment.’[148]On the basis of this passage of Munir, it is not in dispute that the prerogative power to exclude alien enemies was expressly preserved by section 33(5) of the 1971 Act. There remains some uncertainty as to whether section 33(5) preserved an existing prerogative power to exclude alien friends and indeed whether there has ever been a prerogative power to exclude alien friends (see the discussion on this point in T2 v Secretary of State for the Home Department (SIAC, SN/129/2016, 5 January 2018, Elisabeth Laing J (as she then was) presiding), paras 44-45). It is, however, common ground that I do not need to resolve the question of alien friends.[149]As regards Commonwealth citizens, the passage of Munir which I have cited above is authority for the proposition that, in so far as they are not the subject of section 33(5), they are subject to powers of immigration control that are exercised pursuant to statute and not pursuant to the prerogative powers of the Crown. The proposition that the Royal Prerogative remains relevant to whether foreign criminals may be excluded from the UK fails to recognise the comprehensive changes to immigration control marked by the 1971 Act.[150]Mr Halim submitted that G1 is binding authority to opposite effect. Ms Barnes submitted that G1 is not binding and that I am bound to follow Munir. I agree with Ms Barnes, for the following reasons.[151]First, in G1, Laws LJ observed at para 11 that it was “common ground that by virtue of its prerogative the Crown has ample power to exclude an alien from the United Kingdom, unless the power has been abrogated or modified.” He concluded at para 17 that there “has been no statutory abrogation or modification of the Crown’s prerogative power to exclude an alien from the United Kingdom.” The present claim is concerned not with the position of aliens but with Commonwealth citizens. In so far as G1 dealt with aliens, it is not binding in relation to Commonwealth citizens whereas Munir is in my judgment binding authority for the proposition that the exclusion of Commonwealth citizens is founded on a statutory power.[152]Secondly, the judgment in G1 (handed down on 4 July 2012) preceded the judgment in Munir (handed down on 18 July 2012). The Court of Appeal in G1 did not therefore have the benefit of Lord Dyson’s analysis of the impact of the 1971 Act on existing prerogative powers.[153]Thirdly, support for the view that the legislative scheme provides the power to exclude is to be found elsewhere. In Cakani v Secretary of State for the Home Department [2013] EWHC 16 (Admin), Ingrid Simler QC (as she then was), sitting as a Deputy High Court Judge, rejected the argument that the Secretary of State had no power to exclude the claimant. Having cited the Supreme Court’s decision in Munir, she held:
“46 … Paragraph 320(6) of the Immigration Rules undoubtedly assumes the existence of a practice or power to exclude, but the power itself derives from the general powers of the 1971 Act rather than from any specific authorisation in the rules themselves. 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.”
I would respectfully agree with this reasoning.[154]Further, inT2 v Secretary of State for the Home Department (SN/129/2016), SIAC (Elisabeth Laing J, as she then was, presiding) dealt with the power to exclude in the following terms:
“52. It seems to us that there are two closely linked potential sources of the power to exclude. The first, per Cakani, is the power to give instructions not inconsistent with the Rules (a power which, it could be argued, paragraph 1(3) of Schedule 2 of the 1971 Act does not expressly confer, but which rather, paragraph 1(3) assumes to exist). The second, per Geller, is the relevant paragraphs of the Rules (paragraphs 320(6) and paragraph 321A(4)). In that regard we are not impressed by the argument those paragraphs assume the existence of a power, but are not its source. A similar point could be made about the drafting of paragraph 1(3) of Schedule 2. The Rules are not a statute, and possibly are not even delegated legislation (see Odelola v Secretary of State for the Home Department [2009] UKHL25; [2009] 1 WLR 1230, obiter in the view of Lord Dyson, see paragraph 40 of Munir). They are, at all events, statements of the practice to be followed in the administration of the 1971 Act. They are not drafted with the care with which statutes are drafted. We do not consider that this elliptical method of drafting prevents paragraph 320(6) and paragraph 321A(4) of the Rules from being sources of the power to exclude. But it does not matter precisely by which route the source of the power is identified… ”
[155]SIAC held therefore that the power to exclude is part of the legislative scheme of immigration control, albeit that SIAC disagreed with Cakani as to whether the Rules themselves could provide the source of the power to exclude.[156]In FF v Secretary of State for the Home Department [2021] EWHC 2566 (Admin), [2022] 1 W.L.R. 2411, there was said to be a “contrast” between G1 and Munir. There was little discussion of why there is a contrast. There was no discussion of the principles or case law on the Royal Prerogative and the court reached no conclusion on whether the prerogative or the 1971 Act governs the exclusion of Commonwealth citizens (see paras 20-21). I do not regard FF as detracting from the proposition that Munir is binding authority for the proposition that the claimant was excluded under statutory powers and not under the Royal Prerogative.[157]Finally, free from authority, I would have reached the same conclusion as Lord Dyson in Munir. His analysis is in harmony with my own analysis of the 1971 Act as constituting the foundation of contemporary immigration control as effected by the Secretary of State in accordance with the will and intention of Parliament in legislation. There are both democratic and legal advantages to a legislative scheme of immigration control. Both those who elect the legislature, and those who seek to deploy the law to enter or stay in the UK, can know and find out how immigration control is intended to operate.[158]In his post-hearing written submissions, the claimant seeks to rely on AFA [2025] EWCA Civ 825 which dealt with the status of certain aspects of Government policy relating to the relocation of Afghan nationals to the UK (the details of which are irrelevant). The policy was administered by the Secretary of State for Defence. In that case, at para 54, Singh LJ (with whom Nicola Davies LJ and Elisabeth Laing LJ agreed) held:
“Although the exercise of the powers to control leave to enter and remain in the UK can properly be said to be ‘entirely the creature of statute’, to use Lord Hope’s words in Alvi, the formation and adoption of the background policy of relocation is properly regarded as an exercise of the prerogative.”
[159]The claimant submitted that the same analysis should be applied to the power to exclude a person by personal direction of the Secretary of State which was properly considered a “background policy” rather than the exercise of immigration control.[160]The claimant’s submission does not get off the ground. The court in AFA was considering a policy administered by the Secretary of State for Defence as a prelude to eligibility for entry clearance to be granted by the Secretary of State for the Home Department. The policy in question was not a policy administrated under the 1971 Act. The Secretary of State for Defence was not taking immigration decisions under the 1971 Act and did not exercise immigration control which remained a matter for the Home Secretary. There is no proper comparison with the exclusion decision in this case which was not part of the “background” of immigration control but was the exercise of such control. AFA does not stand in the way of the conclusion that the claimant cannot rely on the Royal Prerogative and does not detract from the force of the analysis in Munir.[161]For these reasons, I apply Munir and conclude that the Secretary of State had the power to exclude the claimant by direction. The length and complexity of a ground of challenge do not equate with whether, upon analysis, it is arguable. I am not persuaded that it is arguable with realistic prospect of success that the Secretary of State had no power to exclude the claimant. I refuse permission to apply for judicial review on Ground 5. Ground 6: Procedural unfairness The claimant’s submissions

Ground 6: Procedural unfairness

[162]Mr Halim submitted that the decision to refuse the claimant’s request for an extension of time in which to supply evidence and make representations against exclusion was procedurally unfair because the length of time given to respond was inadequate. He submitted that, having regard to the complexity of the case and the need for expert evidence, the solicitors’ request for six months was reasonable.[163]Although issues relating to legal aid had not been raised in the various extension requests or in the amended grounds of challenge or in the claimant’s witness statements, Mr Halim submitted in his skeleton argument and orally that exclusion cases do not usually receive legal aid so that the claimant’s solicitors needed to apply for Exceptional Case Funding which is not easily obtained. The process in this case took five weeks. Even after it was granted, prior authority from the Legal Aid Agency was needed before experts could be instructed which took a further four weeks which was outside the control of the solicitors. Mr Halim submitted that the Secretary of State had been kept updated. He asserted in broad terms that the Secretary of State “demands” expert evidence before she is willing to make a favourable decision on exclusion.

Analysis and conclusions

[164]In R (AAA (Syria)) v Secretary of State for the Home Department [2023] EWCA Civ 745, [2023] 1 W.L.R. 3103, the Court of Appeal (Lord Burnett of Maldon CJ, Sir Geoffrey Vos MR and Underhill LJ) considered whether seven days was too short a period for claimants to prepare effective representations in response to a Notice of Intent to remove them to a third country (Rwanda). In a section of the judgment to which Mr Halim directed my attention, Underhill LJ held:

Analysis and conclusions

“442. I see nothing wrong in principle in the Secretary of State imposing a ‘base-line’ timetable which is realistic at least in the most straightforward cases and allows those cases to be decided promptly, provided that she is ready and willing to grant extensions in those cases where more time is reasonably required. I do not believe that it is inherently unfair to employ a model where there is a minimum period available to all claimants to make representations, together with consideration of what longer period may be required in particular cases.”
[165]In the present case, the Secretary of State set a “base-line timetable” for representations of five days but was willing to consider and to grant extensions of time in light of extension requests. There is nothing unfair or unreasonable about such an approach which is consistent with the approach sanctioned in AAA.[166]As I have set out above, the claimant’s solicitors requested a six-month timeline on 22 January 2025. The solicitors informed GLD that they needed to obtain at least eight psychiatric reports and that securing appointments with psychiatric experts would involve a three-month waiting period. The solicitors stated that, in addition to the psychiatric reports, they would need to prepare at least eight witness statements. The volume of work would require “careful co-ordination and time.” They submitted that there was no immediate urgency requiring a decision on exclusion. For these reasons, the solicitors sought an extension of time until 27 July 2025.[167]The Secretary of State’s response, in the GLD letter of 24 January 2025, was as follows:
“Your letter notes that the volume of evidence is a substantial undertaking and securing appointments with psychiatric experts currently involves waiting periods of approximately three months. However, you have not provided us with any evidence regarding the inability of witnesses to provide their statements, or the specific unavailability of your proposed experts confirming that they are unable to provide the relevant reports, within a shorter timeframe than six months. In addition, it is unclear why any evidence applicable to the making of an exclusion decision cannot be provided by your client without recourse to expert evidence.”
[168]This reasoning is unassailable. The court has been provided with no evidence as to which of the claimant’s family have mental health conditions that required psychiatric assessment. There is no evidence from any psychiatrist as to waiting times. There is no medical evidence – such as GP notes or hospital letters – that would give an indication of the nature or extent of the psychiatric conditions that would be the subject of assessment by an expert or experts.[169]The letter of 24 January 2025 continues:
“To the extent that you suggest that there is no immediate urgency requiring a decision on exclusion and such an extension of time causes no detriment to the SSHD on the basis that he has been the subject of a refusal of authority to carry, this is not accepted. When an individual is being considered for exclusion, the SSHD considers it necessary to progress these matters as expediently as possible. As noted by the Special Immigration Appeals Commission in H6 v SSHD (see paras 212-215), in circumstances where the SSHD is considering an exclusion decision against an individual, it is no answer that the Authority to Travel Scheme…could provide a degree of protection on an interim basis, pending a full exclusion decision by the SSHD.”
[170]This aspect of the Secretary of State’s reasoning is likewise unimpeachable.[171]The Secretary of State having granted an extension until 10 March 2025, the next extension request was made on 27 February 2025. The claimant’s solicitors appear by then to have abandoned the psychiatric reports and to have turned their minds to one social work report and four psychological reports. They sought an extension for providing these reports and other evidence until 17 July 2025.[172]In their 6 March 2025 letter, GLD responded as follows:
“Although you have provided information regarding the timetable for the expert assessments you intend to seek, you have not provided any evidence or explanation as to why you could not instruct experts who could complete the relevant reports within the timescale or why your proposed experts are unable to provide the relevant reports within a shorter timeframe than those outlined in your letter.”
[173]Although the Secretary of State rejected an extension until 17 July, she granted an extension until 25 April 2025, which was “effectively an extension of time of three months from the original deadline proposed” as being “reasonable in all the circumstances.”[174]In their letter dated 22 March 2025, the claimant’s solicitors for the first time supplied GLD with evidence of how long a range of named psychiatrists, psychologists and independent social workers would need to prepare reports. The solicitors informed GLD that they had selected the psychologist Dr Tim Dalgleish and had made arrangements for him to assess the claimant, his wife, his mother and his sister on 1 May, 3 June and 5 June 2025. The solicitors informed GLD that Dr Dalgleish required three weeks from the date of each assessment to prepare each report. The solicitors needed one week thereafter to review and finalise the reports. On this timetable, the solicitors informed GLD that the psychologist’s reports would be ready by 3 July 2025. The solicitors went on to explain that Dr Dalgleish had low hourly rates and was the only expert willing to organise face to face assessments which was necessary for the claimant’s sister on account of her learning disabilities.[175]The solicitors informed GLD that the independent social worker’s assessment would take place on 12 May 2025 as being the social worker’s earliest available date. The social worker then required four weeks to prepare the report and the solicitors required a further week to review and finalise the report. On this timetable, the report would be finalised no earlier than 16 June 2025. The social worker was said to have “expertise in immigration cases.” The solicitors’ request for an extension for representations until 10 July 2025 was, as I have set out above, maintained.[176]The GLD response of 3 April 2025 contains detailed reasons for rejecting an extension until 10 July 2025. The letter stated:
“It appears from the documents attached to your correspondence that enquiries as to various experts’ availability was only made in late February 2025. Your client was notified that the SSHD was considering his proposed exclusion on 20 January yet no explanation has been provided as to why it took a month to make such enquiries… Our view remains that it is disproportionate and unnecessary to instruct four separate expert psychological reports, an independent social worker report and a number of country experts, particularly when this is causing significant delay to the resolution of the matter.”
[177]GLD analysed the solicitors’ decision to instruct Dr Dalgleish as follows:
“It appears that on or around 21 February four psychological experts notified you that they had capacity to undertake an assessment and prepare a report (Professor Dalgleish, Dr Leveson, Dr Hashmani and Dr Ayaji). Dr Hashmani stated a report could be prepared within 2-3 weeks of receipt of instructions, Dr Ayaji stated a report could be prepared within 2-4 weeks of receipt of instructions and Dr Leveson’s proposed timeframe was 5-6 weeks from receiving instructions. Even assuming a generous period of time to (a) prepare instructions and (b) finalise the report upon receipt of a draft, it appears that instruction of any one of those three experts would enable the current deadline of 25 April to be met. 5. Instead, your client appears to be proposing to instruct Professor Dalgleish despite the fact that he is unable to provide draft reports until 26 June at the earliest with a further week then required to finalise the report. We are not satisfied by the reasons you provide in your letter as to why you consider Professor Dalgleish to be the most suitable expert despite the significant delay it causes to the resolution of your client’s immigration status. 6. Firstly, you assert that Professor Dalgleish has the cheapest hourly rate of all the experts contacted. This is misleading in circumstances where Dr Dalgleish actually charges the most out of the four proposed experts for each report (because he estimates each report will take longer to prepare). Whilst Dr Leveson, Dr Hashmani and Dr Ayaji all agree that 12 hours is sufficient time to prepare each report, Dr Dalgleish states that he requires 20 hours per report. No good reason has been provided for such a significant increase in preparation time or how instructing Professor Dalgleish, in these circumstances, represents a good use of public funds. 7. Secondly, you assert that Professor Dalgleish was the only expert willing to organise face to face assessments: a. We note that Professor Dalgleish is not proposing to carry out an in-person assessment of the Claimant or his wife as they are in Pakistan; the issue is whether an in-person assessment of the Claimant’s mother and sister is required. It is not clear to us that such an in-person assessment is required. Nor is it clear how this justifies the increased cost and delay caused by instructing Professor Dalgleish (we note Professor Dalgleish proposes to charge additional travel expenses). b. You have provided no evidence to suggest that enquiries were made from the other three experts about (i) the clinical necessity of an in-person assessment, (ii) if clinically necessary, whether the experts were willing to travel to the interviewee’s address, or (iii) the interviewee’s ability to attend the expert’s office for the assessment. c. The various articles and guidance footnoted in your letter do not suggest remote psychological assessments are inappropriate or inadequate in the circumstances of this case. To the contrary, the systematic review you cite concludes that ‘this meta-analytic review provides support for the use of videoconferencing technology in the remote administration of neuropsychological tests, particularly those that rely on verbal responses from patients’. 8. Thirdly, you assert that Professor Dalgleish has capacity to produce reports in respect of all four individuals, which is cost-effective and minimises the time spent by the expert to ‘read in’ to the case and produce the reports. The quotes from the three other experts do not indicate that those experts were unable or unwilling to provide reports for all four individuals. Indeed it is unclear whether these experts were asked if they had capacity to produce four reports. Further, Professor Dalgleish’s quote provides an estimate of fees for each report to be based on 20 hours of work, including 4 hours of reading for each report and 10 hours of report writing. Therefore, there is nothing within Professor Dalgleish’s quote to support your contention that it would be cost-effective for Professor Dalgleish to produce all of the reports on the basis that it will minimise the time spent by the expert to ‘read in’ to the case or produce the reports.”
[178]I pause to observe that at no stage – whether in witness statements, other documents, the grounds of challenge, the claimant’s skeleton argument or Mr Halim’s oral submissions – have the claimant or his lawyers responded to the points made in GLD’s letter. The points are not addressed by the claimant.[179]More generally, there is no independent evidence before me that the claimant, his wife or his mother have any psychiatric or psychological conditions that warranted expert reports. His sister is said to have what I understand to be psychological problems but I have not been provided with any evidence of their nature or extent. The court is not able to say whether a psychological report about her was warranted. The purpose of obtaining a report (as opposed to relying on existing medical or other records) has not been explained to me.[180]As regards the timeframe for an independent social work report, GLD’s 3 April letter stated that the Secretary of State considered that no meaningful enquiries had been made of other experts in order to obtain a report on an expedited basis. The claimant nowhere deals with that point in any part of his evidence or submissions on Ground 6.[181]The GLD letter concluded that:
“…the SSHD is not willing to agree to any further extensions. The SSHD maintains that the extension of time for your client to provide representations by 25 April 2025 is reasonable in the circumstances and provides more than sufficient time for your client to prepare his representations, particularly where this is effectively an extension of time of three months from the original deadline proposed.”
[182]The solicitors’ email to GLD on 25 April 2025 added little of substance but yielded an extension of time until 22 May 2025. The solicitors’ letter of 21 May 2025 made a number of assertions of a legal nature and reiterated the request for an extension until 10 July 2025, adding little of substance.[183]No letter of representations was ever sent by the solicitors and no independent evidence – whether in the form of psychological, psychiatric or social work reports or in the form of an expert report about the conditions that the claimant faces in Pakistan – has been supplied. Contrary to the emphasis in the claimant’s skeleton argument and oral submissions, there is no evidence that the Secretary of State was informed at any stage before the exclusion decision that the claimant’s solicitors faced difficulties in obtaining legal aid for reports or that delay by the Legal Aid Agency had any part to play in the delay by the solicitors in arranging reports. The timescale for the grant of legal aid outlined by Mr Halim was advanced in his skeleton argument and oral submissions. As a matter not raised with the decision-maker, the claimant cannot demonstrate that the decision-maker was unreasonable in failing to take legal aid issues into consideration when considering the solicitors’ requests for further time. In any event, Mr Halim’s contentions about legal aid were not supported by evidence.[184]For these reasons, the claimant has advanced no good grounds to suggest that he has been the subject of procedural unfairness. Ground 6 is not arguable with reasonable prospect of success. I refuse permission to apply for judicial review.

Disposal

[185]I refuse permission to apply for judicial review on Grounds 3A, 5 and 6. Grounds 1, 2 and 4 are dismissed. Subject only to an anticipated application by the claimant to amend his grounds of challenge to rely on FD, I would propose to dismiss the claim.[186]Following the circulation of this judgment in draft form to the parties, the court received correspondence from the claimant’s solicitors on the disposal of the claim and on consequential matters. It was apparent from the correspondence that the parties would not reach agreement on the terms of a court order before the date on which the hand down of the judgment in final form was listed remotely. The court’s efforts to list an urgent hearing failed. I shall therefore adjourn my decisions on disposal and consequential matters to a hearing to be fixed. It is not in the interests of the administration of justice for the hand down of the judgment of the court itself to be postponed.[187]Finally, in correspondence, the claimant’s solicitors seek an urgent ruling on whether the court has the power to extend the time limit for seeking permission to appeal from the Court of Appeal in relation to those grounds on which the court has refused permission to apply for judicial review. Those grounds are subject to a different, speedier regime for permission than the grounds which have been dismissed substantively: CPR 52.8. The claimant’s solicitors stated that the draft judgment had given rise to a “procedural problem” with “very unfortunate consequences” if this court cannot extend time. A sceptic may have read the correspondence as criticising the court for deciding to refuse permission to apply for judicial review because it would have been procedurally more convenient for the claimant if permission had been granted.[188]The correspondence contained no legal argument and set out no authority for the proposition that this court may extend time, save to refer to a passage in the Administrative Court Judicial Review Guide 2025 (section 26.3) which the claimant accepted may not reflect the wording of CPR 52.8. The correspondence stated that the position “is not clear” – as if the court should undertake its own legal research to discover the answer on his behalf. That is not the judicial function and I make no ruling.