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Lord Justice Underhill gives guidance on statelessness and irremovability

Lord Justice Underhill gives guidance on statelessness and irremovability

Arfan Khan represented the Applicant at an oral hearing in the Court of Appeal, during which Lord Justice Underhill (the Vice President of the Court of Appeal) provided valuable guidance on the Secretary of State’s policy concerning statelessness, and the approach to revoking a deportation order.

The Applicant, acting as a litigant in person, commenced a judicial review against a decision concerning his alleged statelessness and irremovability from the UK. Following the Upper Tribunal's determination that he was Nigerian, his appeal was dismissed. Thereafter, he submitted a new application for statelessness.

In a paragraph 353 letter dated 19 April 2022, drafted by him as a litigant in person, he made various representations said to amount to a fresh claim. This letter invited the SSHD to take a “practical and holistic view”, and alleged that removal was too remote. 

By a decision letter dated 10 October 2022, the SSHD decided that he was “not stateless” due to the Upper Tribunal’s findings that he was Nigerian. In that letter, he decided that until the Applicant provides true details and evidence to the Nigerian authorities, they are not likely to provide him with a Nigerian Travel document. 

The Applicant sought judicial review. Permission was refused by Judge Kebede. The Applicant appealed to the CoA alleging, amongst other grounds, that it was not sufficiently reasoned. Lord Justice Underhill directed an oral hearing to determine the statelessness and/or irremovability grounds drafted by him as a litigant in person. 

The Appellant argued that it was irrational of the Secretary of State not to recognise that the applicant had an arguable fresh claim to be stateless, and that it was irrational of him not to recognise that the applicant had an arguable fresh claim to be in practice irremovable (10). He contended that he had provided disclosure to the Nigerian High Commission in an email to which the Respondent was copied, but the Respondent had done nothing (13-14). This was so despite the Respondent having stated in March 2020 that he was assembling a submission to the Nigerian High Commission (19).

Lord Justice Underhill refused permission on the basis that the Respondent had not made a stateless determination that had been challenged in the rule 353 letter. His Lordship held that, in any event, the decision was not irrational, though he accepted that irremovability had been obliquely raised by the Appellant in the rule 353 letter.   

Refusing permission, his Lordship provided a ruling that is of wider importance in the following respects at the oral hearing:

  1. 1.    His Lordship gave guidance on the nature and scope of the Secretary of State’s policy on statelessness, holding that the policy does not require the Secretary of State to take action, unless the applicant has provided a true and good faith account to the Nigerian authorities (15). 
  2. If a person facing deportation refuses to cooperate with their home country's authorities, the Secretary of State may need to step in and personally intervene to secure emergency travel documents in order to proceed with deportation (18). If successful, the deportation can go ahead as planned. However, if unsuccessful, the Secretary may need to consider rescinding the deportation order and providing some form of relief (18).

Lord Justice Underhill held that it was inappropriate to dismiss the application for permission to appeal as totally without merit, despite previous certifications indicating otherwise, as the decision under appeal was not as full as it might have been. His Lordship also held that, if the Secretary of State fails to secure travel documents from the Nigerian High Commission for the applicant, it would be unjust to restrict the applicant from initiating proceedings.

Ogilvy (aka Alakija), R (On the Application Of) v Secretary of State for the Home Department [2024] EWCA Civ 315 (29 February 2024) (bailii.org)


28th Mar 2024

Arfan Khan

Call 2001

Arfan Khan

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