(1) A decision to remove a person (P) from the United Kingdom under immigration powers will not be unlawful by reason of the fact that it is predicated upon an earlier decision which has not, at the time of removal, been found to be unlawful, but which later is so found: AB v Secretary of State for the Home Department [2017] EWCA Civ 59; Niaz (NIAA 2002 s.104: pending appeal) [2019] UKUT 399 (IAC).
(2) The fact that P’s removal was not unlawful will not necessarily preclude a court or tribunal on judicial review from ordering P’s return. The fact it was lawful will, however, be a ‘highly material factor against the exercise of such discretion’: Lewis v Secretary of State for the Home Department [2010] EWHC 1749 (Admin).
(3) Where P’s removal was unlawful, by reference to the position at the time of removal, that fact should not only constitute the starting point for the Tribunal’s consideration of the exercise of its discretion to order return, but is also likely to be a weighty factor in favour of making such an order. The same is true where the effect of P’s removal has been to deprive P of an in-country right of appeal.
[2020] UKUT 267 (IAC)
Bailii
England and Wales
Immigration
Updated: 30 November 2021; Ref: scu.653930
