[2024] UKUT 00066 (IAC)

"The general principles applicable to the 'in accordance with the law' standard are well-established: see generally per Lord Sumption in Catt, above, [11]-[14]; and in Re Gallagher [2019] 2 WLR 509 at [16] – [31]. In summary, the following points apply.

The measure in question (a) must have 'some basis in domestic law' and (b) must be 'compatible with the rule of law', which means that it should comply with the twin requirements of 'accessibility' and 'foreseeability' (Sunday Times v United Kingdom (1979) 2 EHRR 245; Sliver v United Kingdom (1983) 5 EHRR 347; and Malone v United Kingdom (1985) 7 EHRR 14).

The legal basis must be 'accessible' to the person concerned, meaning that it must be published and comprehensible, and it must be possible to discover what its provisions are. The measure must also be 'foreseeable' meaning that it must be possible for a person to foresee its consequences for them and it should not 'confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself' (Lord Sumption in Re Gallagher, ibid, at [17]).

Related to (2), the law must 'afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise' (S v United Kingdom, above, at [95] and [99]).

Where the impugned measure is a discretionary power, (a) what is not required is 'an over-rigid regime which does not contain the flexibility which is needed to avoid an unjustified interference with a fundamental right' and (b) what is required is that 'safeguards should be present in order to guard against overbroad discretion resulting in arbitrary, and thus disproportionate, interference with Convention rights' (per Lord Hughes in Beghal v Director of Public Prosecutions [2016] AC 88 at [31] and [32]). Any exercise of power that is unrestrained by law is not 'in accordance with the law'.

The rules governing the scope and application of measures need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them (per Lord Sumption in Catt at [11]).

The requirement for reasonable predictability does not mean that the law has to codify answers to every possible issue (per Lord Sumption in Catt at [11])."

The SSHD accepts that the Judge was right to find that removal would represent an interference with AA’s Article 8 rights. The Judge considered it followed from his finding that removal was contrary to the 2016 Regulations that the interference was “incapable of justification”. In one sense he was right. An interference can only be justified under Article 8(2) if it is “in accordance with the law”. If deportation could not be justified under the 2016 Regulations it could not have been justified by reference to s 32 of the 2002 Act either, and it would have had no lawful basis. That would be the end of the human rights argument. But that is not how the Judge approached the matter. It is clear from paragraphs [20] and [55] that he went on to consider the public interest question and concluded that it was answered by the proportionality assessment he had already conducted for the purposes of the 2016 Regulations.

In my judgement, the correct approach is as indicated in Badewa. The application of the 2016 Regulations is a legally distinct exercise from the assessment of a human rights claim. Where both arise, they should be addressed separately and in turn. The 2016 Regulations should be addressed first, including the assessment required by Regulation 27(5)(a) of whether deportation would comply with the EU principle of proportionality. The provisions of Part 5A of the 2002 Act have no part to play at that stage. But they must be addressed as part of the human rights assessment, if the public interest question arises.

The public interest question will not necessarily arise. Although deportation will commonly interfere with Article 8 rights that will not invariably be the case. If it is, the second question arises: whether deportation would be in accordance with the law. That will not be so if deportation would be contrary to the 2016 Regulations. In such a case the human rights analysis need go no further. But if deportation would be consistent with the 2016 Regulations and otherwise lawful the tribunal should address the public interest question in the way that Parliament has prescribed in Part 5A of the 2002 Act. Where, as here, the appellant is a "serious offender" the tribunal will have to apply s 117C(6).

In an appeal where conduct prior to 11pm on 31 December 2020 give rise to a decision to deport an EEA citizen is in issue, it is necessary to determine whether, as at 31 December 2020 (and at the point a decision is taken):

The answers to these questions will determine whether the EEA citizen came within the scope of the Withdrawal Agreement, the Grace Period Regulations or the EUSS. They will also determine whether that individual is a “relevant person” for the purposes of section 3 (5A) and (10) of the Immigration Act 1971 and section 33(6B) and (6C) of the UK Borders Act 2007, as expanded by regs 3(4) and 12(1)(b) of the Grace Period Regulations.

In respect of conduct carried out prior to 31 December 2020, the EEA Regulations only apply directly to an individual (and thus gave rise to an appeal under those regulations) if:

With the passage of time, the class of individuals falling under the EEA Regulations and entitled to a right of appeal under those provisions will diminish to very small numbers.

If a decision to deport was not made under the EEA Regulations, then there is no right of appeal under those regulations.

In an appeal under the CRA Regulations, it will be necessary to consider the application of reg. 27 of the EEA Regulations. This can arise under either ground of appeal as:

There is a distinction between (1) and (2) because under the definition of deportation order under the EUSS, only 5 years continuous residence (as opposed to lawful residence under the EEA Regulations) is needed to acquire enhanced protection.

The effect of a finding that the deportation is not justified by reference to reg 27 of the EEA Regulations is that Exception 7 under section 33 of the United Kingdom Borders Act 2007 is met, and the Secretary of State’s policy is then to revoke any deportation order, at which point leave to remain under the EUSS can be granted.

If the deportation decision against an EEA citizen arises in a human rights appeal under section 82 of the 2002 Act, then that appeal should be stayed pending resolution of any outstanding application under the EUSS to allow an appeal against a negative decision to be determined as the same time as a human rights appeal.

Where an appeal has been allowed under the EEA Regulations; or, in an appeal under the CRA Regulations on the basis the deportation decision is not justified by reference to reg 27 of the EEA Regulations, it follows that any linked appeal against the same decision under section 82 of the 2002 Act will be allowed on the basis that the decision under appeal was not in accordance with the law.