Case No. UKUT-00677-(IAC)

ondon Handed down: 26 November 2015 BEFORE UPPER TRIBUNAL JUDGE STOREY UPPER TRIBUNAL JUDGE PETER LANE Between THE QUEEN (ON THE APPLICATION OF VIDMANTIS MASALSKAS) Applicant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent 1. A decision to certify a person’s (P’s) removal under regulation 24AA of the European Economic Area Regulations 2006 operates as a temporary measure that can be applied only for so long as there is a statutory appeal which could be brought in time or which is pending. 2. Regulation 24AA is a discretionary measure whose implementation is currently subject to Home Office guidance entitled “Regulation 24AA Certification Guidance for European Economic Area deportation cases”. 3. EEA decisions to remove or deport taken against EEA nationals do not have automatic suspensive effect. No removal can take place, however, until an applicant has had a decision on any application made for an interim order to suspend removal. 4. As with the very similar power in section 94B to the Nationality, Immigration and Asylum Act 2002, when deciding whether to certify the removal of a person under regulation 24AA the avoidance of “serious or irreversible harm” is not the sole or overriding test. It is also necessary for the decision-maker to assess whether removal of P would be unlawful under section 6 Human Rights Act 1998 (HRA): see Kiarie, R (on the application of) and Another v Secretary of State for the Home Department [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) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed. (4) If P applies to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision, P may not be removed from the United Kingdom until such time as the decision on the interim order has been taken, except— (a) where the expulsion decision is based on a previous judicial decision; (b) where P has had previous access to judicial review; or (c) where the removal decision is based on imperative grounds of public security. (5) In this regulation, “finally determined” has the same meaning as in Part 6. 29AA Temporary admission in order to submit case in person (1) This regulation applies where – (a) a person (“P”) was removed from the United Kingdom pursuant to regulation 19(3)(b); (b) P has appealed against the decision referred to in sub-paragraph (a); (c) a date for P’s appeal has been set by the First tier Tribunal or Upper Tribunal; and (d) P wants to make submissions before the First tier Tribunal or Upper Tribunal in person. (2) P may apply to the Secretary of State for permission to be temporarily admitted (within the meaning of paragraphs 21 to 24 of Schedule 2 to the 1971 Act, as applied by this regulation) to the United Kingdom in order to make submissions in person. (3) The Secretary of State must grant P permission, except when P’s appearance may cause serious troubles to public policy or public security. (4) When determining when P is entitled to be given permission, and the duration of P’s temporary admission should permission be granted, the Secretary of State must have regard to the dates upon which P will be required to make submissions in person. (5) Where— (a) P is temporarily admitted to the United Kingdom pursuant to this regulation; (b) a hearing of P’s appeal has taken place; and (c) the appeal is not finally determined, P may be removed from the United Kingdom pending the remaining stages of the redress procedure (but P may apply to return to the United Kingdom to make submissions in person during the remaining stages of the redress procedure in accordance with this regulation). (6) Where the Secretary of State grants P permission to be temporarily admitted to the United Kingdom under this regulation, upon such admission P is to be treated as if P were a person refused leave to enter under the 1971 Act for the purposes of paragraphs 8, 10, 10A, 11, 16 to 18 and 21 to 24 of Schedule 2 to the 1971 Act. (7) Where Schedule 2 to the 1971 Act so applies, it has effect as if— (a) the reference in paragraph 8(1) to leave to enter were a reference to admission to the United Kingdom under these Regulations; and (b) the reference in paragraph 16(1) to detention pending a decision regarding leave to enter or remain in the United Kingdom were to detention pending submission of P’s case in person in accordance with this regulation. (8) P will be deemed not to have been admitted to the United Kingdom during any time during which P is temporarily admitted pursuant to this regulation. 4. Also relevant is regulation 26(1), which provides that “Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision”, and regulation 29 which prescribes the effect of appeals to the First-tier Tribunal or Upper Tribunal. Regulation 29(3) provides that: “If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom ( other than a decision under regulation 19(1(3)(b )), any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending.” The words in italics were inserted with effect from 28 July 2014. 5. It is as well to mention also regulation 19(3) which specifies that subject to two exceptions: “an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if- (a) that person does not have or ceases to have a right to reside under these Regulations; (b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 21”; or (c) the Secretary of State has decided that the person’s removal is justified on grounds of abuse of rights in accordance with regulation 21B(2). Home Office Guidance 6. To accompany the insertion of regulations 24AA and 29AA the Home Office also issued a document entitled “Regulation 24AA Certification Guidance for European Economic Area deportation cases”, which we have annexed in its Version 2.0, 20 October 2014 form. It explains that when the regulations came into force it was with an initial cohort limited to persons aged 18 or over who do not have a genuine and subsisting parental relationship with a dependent child or children. That first phase ended on 17 October 2014. Section 2 deals with cases not suitable for regulation 24AA certification. Section 3 addresses when to certify a human rights claim under regulation 24AA and at 3.3. (real risk of serous irreversible harm) and 3.4. (timing of certification) the caseworker is instructed to see for guidance the section 94B certification guidance for non-EEA nationals. Section 4 deals with interim orders. Section 5 concerns re-entry to present appeal in person. The application 7. The applicant is a citizen of Lithuania and seeks judicial review of the decision made by the respondent to certify his removal from the United Kingdom under regulation 24AA of the 2006 Regulations. That decision was originally made on 10 December 2014, at the same time as he was served a reasons for deportation letter and a deportation order. On 17 March 2015 the respondent issued him with a supplementary decision to certify his removal under regulation 24AA, together with a new notice of decision to make a deportation order. His judicial review claim form lodged on the same day identifies the decision being challenged as a decision of 12 March to set removal directions for 18 March 2015, but it is common ground that it is the underlying decision to certify that is in issue in these proceedings (we return to this matter in a moment). On the same day the applicant applied for judicial review he also applied for an interim injunction to prevent removal. This was granted on the specific basis that the position regarding the applicant’s appeal ‘should be clarified before any further steps are taken to remove the applicant”. It was ordered that the respondent was not to remove the applicant until determination of this application or further order. The statutory appeal 8. The applicant had earlier (in January 2015) lodged a statutory appeal against the EEA decision to make a deportation order against him. At the date he brought his judicial review proceedings (17 March 2015) his statutory appeal was still pending. When permission was granted on 20 August 2015 to bring this judicial review, it was assumed that the applicant had not yet had a hearing before the First-tier Tribunal of his statutory appeal. In point of fact we now know that by then his appeal had been heard by the First-tier Tribunal and dismissed on 27 May 2015. However, he has applied for permission to appeal to the Upper Tribunal, which means that, albeit it is at a different stage, his statutory appeal is still one which is pending. 9. The reason why the applicant has found himself subject to adverse Home Office measures is that on 13 November 2013 he was arrested and on 22 January 2014 he was convicted of possession of a controlled drug class A – with intent to supply. For this offence he was sentenced to 28 months’ imprisonment (with forfeiture and destruction of drugs and paraphernalia) and ordered to pay a victim surcharge. He was also sentenced to four months’ consecutive imprisonment (with forfeiture and destruction of 440 counterfeit £10 bank notes) for an offence of having counterfeit banknotes . The decision under challenge 10. It is common case that the challenge brought in this judicial review is to the decision to certify under regulation 24AA taken on 10 December 2014. The further decision to certify taken on 17 March 2015 was specifically described as being supplementary and we entirely agree that this was all it was. The gravamen of the applicant’s challenge in December 2014 was that the decision to certify was unlawful because it prevented him from being present at his statutory appeal and to that end the interim relief he sought was an interim order prohibiting his removal. 11. As already noted, the applicant has had since then a hearing before the First-tier Tribunal, at which he was able to attend and present his case and he has also had a decision on his appeal: on 27 May 2015 the First-tier Tribunal dismissed his appeal against the deportation order against him under regulation 19(3). 12. Two things flow from this. First, even if the applicant is successful in his judicial review application, he cannot expect relief aimed at securing his attendance at his statutory appeal before the First-tier Tribunal as he has already achieved this. Second, if he is unsuccessful in this judicial review and the respondent acts to remove him by way of directions, he will still be entitled to apply under regulation 29AA to return to be present in person at any relevant hearing for as long as his appeal is still pending. 13. Nevertheless, particularly because his appeal remains pending, we do not consider that his application has been rendered academic. Success in this application would have inevitable consequences for any further decision to certify in respect of what regulation 29(5) refers to as “the remaining stages of the redress procedure in accordance with this regulation”. Given the wide-ranging nature of the submissions before us in this case, our decision may additionally assist in clarifying the proper ambit of regulations 24AA and 29AA in other cases. The grant of permission 14. In the grant of permission to bring judicial review proceedings made on 20 August 2015 reference was made to the case of Macastena v Secretary of State for the Home Department [2015] EWHC 1141 (Admin), a renewed permission hearing and the question was posed whether observations by Collins J in that case disclosed grounds for considering that regulation 24AA was consistent with Article 31. The grounds 15. In presenting the grounds Mr Malik before us cast his submissions in the following terms. First he submitted that the regulation 24AA decision made against the applicant was unlawful in public law terms by dint of having four defects: (a) failure to appreciate that there was a discretion; (b) failure to take into account material considerations; (c) failure to balance competing considerations against each other; and (d) failure to make a decision that was reasonable. Second, he submitted that the respondent had erred in law in using “real risk of serious irreversible harm” as the sole or overarching test for certifying under regulation 24AA. He submitted that the test set out in regulation 24AA also had to establish that the decision to certify was compliant with s.6 Human Rights Act 1998 (“HRA 1998”) and thus entailed a test of proportionality. Third he argued that the decision of Collins J in the Macastena case reinforced his underlying arguments. 16. Ms Smyth first asked us to rule as a preliminary point that in order to advance these grounds, which Mr Malik had only drafted the day before, he would need to apply formally for leave to amend his grounds as they differed significantly from those set out in the original pleadings. We disagree. Given that the day before the hearing, the Court of Appeal had given judgment in Kiarie and Byndloss , it was inevitable – and indeed only good sense – that Mr Malik should reorient his submissions, but they still bore a sufficient correspondence to those originally pleaded. We would accept that the original grounds make no mention of the discretion ground and that certain passages betoken a misunderstanding of what was being certified, but one can still see an express contention that the decision to certify wrongly failed to consider s.6 of the HRA1998 and we discern that paragraph 48 did at least seek to identify factors that were relevant to the legality of the decision both in terms of discretion and proportionality. 17. Even had we decided that Mr Malik needed to apply to amend his grounds formally, he helpfully stated that if needed, he wished to apply to do so and on that basis we would have acceded to his request. In the event Ms Smyth was content to respond to Mr Malik’s submissions without needing to ask for more time. As Ms Smyth herself emphasised, the fact that both parties had invested considerable time in addressing the three key issues identified by Mr Malik, coupled with the plain need for their submissions before us to deal with the implications of Kiarie & Byndloss , are strong pointers in favour of our taking a holistic view. 18. Ms Smyth asked us to note that no challenge has been made to the legality of regulation 24AA; and that in the light of the Court of Appeal analysis in Kiarie & Byndloss of the very similar provision at section 94B of the 2002 Act, no such challenge could succeed. As regards ground 1, she urged us to find that just as the Court of Appeal had found the discretion point in Kiarie & Byndloss to fall away, so should we in this case. Even if discretion had not been exercised perfectly in the applicant’s case, any shortcoming was not material. There was an additional reason in this case why any defect was immaterial, in that the applicant had simply not identified evidence of material or competing considerations. Further, to the extent that Collins J in Macastena appeared to query the public policy rationale for this power, that overlooked that it had been given legislative endorsement by the EU legislature in Article 31 of (the Citizens Directive (which clearly contemplates that removal can take place whilst an appeal is pending) and UK Parliamentary endorsement by the insertion into the 2006 EEA Regulations of regulation 24AA. The provisions enacted by both legislatures reflected a balancing of public policy and individual considerations. She urged us to find the Macastena decision as affording no help to the applicant. 19. In relation to Mr Malik’s ground 2, Ms Smyth said the Secretary of State accepted that “serious irreversible harm” in regulation 24AA was not the sole or overarching test and that in order to certify lawfully the respondent had also to be satisfied there was no breach of section 6 of the HRA 1998. She accepted that the latter test required the respondent to assess whether a decision to certify was proportionate, but urged us to find that the proportionality assessment was limited to the period of the pending appeal, which could be presumed to be short-term.