Case No. UKUT-00677-(IAC)

[2015] EWCA Civ 1020. 5. Whilst the assessment pursuant to section 6 HRA requires a proportionality assessment, it is one that is limited to the proportionality of removal for the period during which any appeal can be brought in time or is pending. 6. P’s right under regulation 29AA to be temporarily admitted to the UK in order to make submissions in person at the appeal: (a) is qualified by regulation 29AA(3) (“except when P’s appearance may cause serious troubles to public policy or public security”); and (b) does not extend to the pre-hearing stages of the appeal. Mr Z Malik, Counsel, instructed by Salamons Solicitors appeared on behalf of the applicant. Ms J Smyth, Counsel, instructed by the G.L.D. appeared on behalf of the respondent. JUDGMENT JUDGE STOREY : 1. This application for judicial review concerns regulations 24AA and 29AA of the Immigration (European Economic Area) Regulations 2006 (hereinafter “the 2006 Regulations”). These regulations are a relatively recent addition to the ever-expanding panoply of the 2006 Regulations, having been inserted with effect from 28 July 2014 (SI 2014/1976). As far as we are aware, ours is one of the first cases which seeks to deal in any depth with their proper scope and meaning. It has assisted our task that the day before our the hearing the Court of Appeal gave judgment in the case of Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020 (13 October 2015) (hereafter “ Kiarie and Byndloss ”) which concerned a very similar provision to regulation 24AA set out in the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) (as amended), namely section 94B 1 . In order to set the scene, it is useful first of all to set out the relevant legislative and policy framework of which regulations 24AA and 29AA form a part. The legislative and policy framework The 2004 Citizens Directive 2. Chapter V1 of the Directive 2004/38/EC (“the Citizens Directive”) is concerned with ‘ Restrictions on the right of entry and the right of residence on grounds of public policy, public security and public health ’. Articles 27 and 28 deal with the substantive conditions that must be satisfied before a Member State may restrict the freedom of movement and residence of EU citizens and their family members falling within the scope of the Directive. In summary, they permit a Member State to expel EU citizens and their family members on grounds of public policy, public security or public health, subject to certain restrictions. So far as material, Articles 27 and 28 provide: Article 27 General principles 1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. 3. … 4. … Article 28 Protection against expulsion 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host Member State for the previous ten years; or (b) … Article 31 3. Article 31, which is also part of Chapter V1 to the Directive, is entitled ‘procedural safeguards’. It provides: Procedural safeguards 1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health. 2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except: - where the expulsion decision is based on a previous judicial decision; or - where the persons concerned have had previous access to judicial review; or - where the expulsion decision is based on imperative grounds of public security under Article 28(3). 3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28. 4. Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory. The 2006 EEA Regulations Regulations 24AA and 29A) state as follows: 24AA Human rights considerations and interim orders to suspend removal (1) This regulation applies where the Secretary of State intends to give directions for the removal of a person (“P”) to whom regulation 24(3) applies, in circumstances where— (a) P has not appealed against the EEA decision to which regulation 24(3) applies, but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or (b) P has so appealed but the appeal has not been finally determined. (2) The Secretary of State may only give directions for P’s removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P’s appeal, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (3)