K, R (on the application of) v Secretary of State for the Home Department

Mr Ranjiv Khubber (instructed by Immigration Advisory Service) for the Claimant Mr John-Paul Waite (instructed by The Treasury Solicitor) for the Defendant ____________________

"1. It is arguable that the Tribunal erred in refusing to entertain the [defendant's] submissions on section 72 of the NIAA 2002 for the reasons given at paragraph 9 of the decision. The question of whether a certificate had been issued under subsection (9) was arguably irrelevant to the operation of the remainder of the section. The facts of the appellant's conviction were already known and the issue of whether he would be likely to re-offend was relevant to the paragraph 364 question.

Since the deportation decision had been withdrawn, the AIT directed that the appeal should be withdrawn under rule 17(2) of the AIT (Procedure) Rules 2005 ("the Procedure Rules"). This withdrawal was required by rule 17(2) since the withdrawal of the deportation decision meant that there was no longer an appealable decision in existence.

(1) What was the effect of the defendant's withdrawal of the deportation decision dated 11 January 2007?

Neither the claimant's counsel nor the Presenting Officer appears to have raised the possibility of the AIT granting the defendant's application but at the same time granting a short adjournment to enable a section 72(9) certificate to be served and to allow the appellant more time to prepare for the section 72 issue since that possible approach to the defendant's application was not discussed in the AIT's decision.