In a judgement handed down  on  26 November 2015, the Upper Tribunal,   closely following Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020,  dismissed a Regulation 24AA certification    judicial review challenge  by an EEA national subject to deportation.

(Although no longer subject to an embargo, the judgement is at  the current time yet to be  published in the public domain).

The  Upper Tribunal took the following view :

• that as far as they were aware, this application for judicial review was one of the first cases which sought to deal in any depth with the proper scope and meaning of Regulations 24AA and 29AA of the Immigration (European Economic Area) Regulations 2006;
• that they were assisted in their task in that the day before the hearing in the case, the Court of Appeal had given judgment in the case of Kiarie and Byndloss which concerned a very similar provision to Regulation 24AA set out in the Nationality, Immigration and Asylum Act 2002, namely Section 94B;
• the Upper Tribunal did not agree with the Secretary of State’s submission that the Applicant apply formally for leave to amend his grounds given that the day before the hearing, the Court of Appeal had given judgment in Kiarie and Byndloss, and therefore it was inevitable and only good sense that the Applicant should reorient his submissions, however it was noted that they still bore a sufficient correspondence to those originally pleaded.

In making their decision, regardless of the  fact that  this was an EEA  deportation case,  the Upper Tribunal closely followed the principles in  Kiarie and Byndloss, a non EEA deportation case, in effect  arguably rubber stamping  the Court of Appeal’s approach in several respects in  that case.

An earlier  consideration of the decision in  Kiarie and Byndloss   appears at:https://ukimmigrationjusticewatch.com/2015/10/17/kiarie-v-the-secretary-of-state-for-the-home-department-court-of-appeal-states-that-substantial-weight-must-be-attached-to-the-public-interest-in-deporting-non-eea-foreign-national-offenders-befor/

RELEVANT LAW AS SUMMARISED BY THE  UPPER TRIBUNAL

The  Upper Tribunal considered that it  was not in dispute that UK law faithfully transposes Article 31(1) and 31(3) of the Citizens Directive.  The requirements of Article 31(3) are for a form of judicial redress that extends to an examination not just of the “legality of the decision”, but also of “the facts and circumstances on which the proposed measure is based”. These requirements are met in the UK by provisions in the 2006 EEA Regulations, in particular by Regulation 26 which affords a statutory right of appeal against EEA decisions and by provisions in Schedule 1 which apply certain sections of the 2002 Act that ensure the appeal deals with the merits, not just with the legality of the EEA decision. The statutory appeal under these Regulations also provides at Regulation 21 for an assessment of whether decisions taken on public policy, public health or public security grounds are disproportionate in relation to the safeguards guaranteed by Articles 27 and 28 of the Directive.

The  Upper Tribunal considered that  it was  also not in dispute that Article 31(2) is faithfully transposed by Regulation 24AA(4). It wad stated  that  both  Counsel agreed that these judicial review proceedings provided for an application for “an interim order to suspend enforcement of [the expulsion decision] …until such time as the decision on the interim order has been taken.”  The applicant  in this case sought such an order and was granted it so that the position regarding his appeal could be clarified. This injunction  remained in place pending the handing down of the Upper Tribunal  judgment.

The Upper Tribunal considered that it was likewise  common ground that Regulation 29AA seeks to give effect to the provisions of Article 31(4).  Article 31 is predicated on recognition that expulsion decisions against Union citizens do not attract automatic suspensive effect.  The article does require that no removal can take place until an applicant has had a decision on an application for an interim order to suspend enforcement of that decision (Article 31(2)). It also stipulates that Member States may not prevent the individual from submitting his/her defence in person (except in two specified circumstances). But it does not prevent removal prior to the hearing of his statutory appeal – subject only to a right to a decision on an application for an interim order to suspend enforcement of that decision (Article 31(2) and (4)).

Consistent with the terms of Article 31, the new wording of Regulation 29(3) provides that a statutory appeal against an EEA decision to remove an EEA national from the United Kingdom has suspensive effect except where that decision is made under Regulation 19(3)(b) (which is the provision under which the decision to deport was made against the applicant in this case).

Relevant  Home Office Guidance:

The accompanying Guidance  to  Regulations 24AA  is entitled “Regulation 24AA Certification Guidance for European Economic Area deportation cases”, Version 2.0, 20 October 2014 form.  The Guidance  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 Facts:

The applicant is a citizen of Lithuania. On 13 November 2013 he was arrested and on 22 January 2014 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 counterfeit  bank notes) for an offence of having counterfeit banknotes.

The Applicant sought a  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. The applicant had earlier (in January 2015) lodged a statutory appeal against the EEA decision to make a deportation order against him.   His  appeal against the deportation order under regulation 19(3) was  heard by the First-tier Tribunal and was dismissed, however  he  applied for permission to appeal to the Upper Tribunal and therefore his statutory appeal was one still pending on the day judgement was handed down.   The Upper Tribunal observed that two things flowed from this.  First,  that 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.

However particularly because  the Applicant’s  appeal remains pending,  the Upper Tribunal did  not consider that his application had been rendered academic.  It was noted that success in the judicial review 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”.  Further the Upper Tribunal considered that a decision may additionally assist in clarifying the proper ambit of regulations 24AA and 29AA in other cases.

The arguments  for the Applicant as summarised:

It was submitted that the Regulation 24AA decision made against the applicant was unlawful in public law terms by dint of having four defects:

1. 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.

It was also argued on the Applicant’s behalf  that the certification of the applicant’s case under Regulation 24AA was unlawful because it failed to demonstrate either that the respondent had grasped that a decision under this provision was a matter of discretion or that it was a matter which required a weighing-up of competing considerations and a decision as to proportionality.

It was also contended 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.  It was  submitted  on the Appellant’s  behalf 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.

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. It was  argued that the decision of Collins J in the Macastena case reinforced the underlying arguments. It was noted that  Collins J said in Macestena:

“16.   However, it is not at the interim stage for a further consideration to be given to the factual basis.  Only if it would be unlawful for interim removal, as I shall call it, to take place would it be appropriate to seek to come to court to prevent it.  Such cases, I would have thought, would be comparatively rare.  But one can see situations where, for example, a very damaging effect upon a child of the family might be such as to require such removal not to take place.

17. I am bound to say that, unless a very lengthy period was likely between appeal being lodged and hearing or the individual is in custody, it is difficult to see the point of exercising this power. It is particularly pointless if the individual is in work and providing for his or her family whilst in this country, because that will be removed and the likelihood is recourse to public funds by the family left there.
18. However, for some reason best known to the Secretary of State, that power has been required. In my judgment, it cannot be said that it is at all arguable that the regulation as it stands is itself unlawful.  Equally, it would only be if the interim decision were unlawful and could be shown to be unlawful that it should not be permitted to be made.
19. I would have thought it is necessary for the Secretary of State to use this power with the greatest of care because one wants to avoid any satellite litigation which might otherwise result. Surely, it should only be in a case where it can be seen to be desirable and really desirable that such power should be exercised.  It may depend on the view taken of the strength of the case which the Secretary of State has for removal in due course, because it may be obvious that there is little point in removing someone if it transpires that the appeal in due course is allowed.”   

The Arguments  for the Secretary of State as  summarised:

The  Respondent requested  that the Upper Tribunal note that no challenge had  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.  The Responded  urged  the Upper Tribunal  to find that just as the Court of Appeal had found the discretion point in Kiarie & Byndloss to fall away, so should the Upper Tribunal in this case.  It was  submitted that 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  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  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. The Respondent  asked the Upper Tribunal  to find the Macastena decision as affording no help to the applicant.

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 the Upper  Tribunal  to find that the proportionality assessment was limited to the period of the pending appeal, which could be presumed to be short-term.

 UPPER TRIBUNAL’S CONSIDERATIONS AND CONCLUSIONS

• Regulation 24AA is not a free-standing power to certify removal. It is parasitic on there being an “appeals process” (24AA(2)). It is limited jurisdictionally by being tied to the actuality or possibility of an appeal. The temporal limits to its scope are that there must be the possibility of an in-time appeal or an appeal which is still pending;
• The Upper Tribunal agreed that any decision to certify removal under regulation 24AA could not lawfully be made unless the Secretary of State was satisfied it would be proportionate in human rights terms. A proportionality test could not be diminished just because the context was removal/deportation in the context of a pending appeal.  If there was any doubt about their efficacy it had been settled by the Court of Appeal analysis of Section 94B in Kiarie and Byndloss;
• The Upper Tribunal considered however that the proportionality assessment cannot be the same wide-ranging one that the decision-maker must conduct when deciding the substantive matter of whether there are grounds of public policy, security or health for the deportation or removal under regulation 21/Articles 27 and 28 in the context of a statutory appeal. It can only be one that confines itself to the context of an appeals process which is not yet exhausted;
• The assessment to be made under Regulation 24AA requires the decision-maker to focus not just on whether removal would cause serious and irreversible harm, but whether, for the period while the appeal process remains unexhausted, a person’s removal would have an unduly harsh impact on him and/or his family members. However going by the Court of Appeal’s analysis in Kiarie & Byndloss and the Section 94B guidance, such cases are likely to be relatively rare;
• The Upper Tribunal noted that Regulation 29AA provides for “temporary admission to submit a case in person”. It provides that if a person who has been removed wants to make submissions before the First-tier Tribunal or Upper Tribunal in person, he person may apply to the Secretary of State to be temporarily admitted. The upper Tribunal stated that indeed, there is even provision for a person who has (i) been removed, (ii) has then been admitted back into the United Kingdom for a First-tier Tribunal hearing; (iii) who has then pursued onward appeal, (iv) is then removed again, to then (v) apply under regulation 29AA(5) “to return to make submissions in person during the remaining stages of the redress procedure” (regulation 29AA(5));
• There is no right of an individual to be present in the United Kingdom in advance of an actual hearing;
• There is an important difference between Regulation 24AA and section 94B. Whereas the latter envisages that the appeal itself will be heard whilst the appellant is out of country, the different scheme under the Directive and Regulations recognises a “right to be heard” for the purposes of being present at the hearing of the appeal;
• The EU legislature has expressly permitted States, subject to judicial supervision, to have the power to remove persons pending their appeal. Article 31(1) makes that clear, as does the Commission’s Explanatory Memorandum, Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2001/0257 Final – COD 2001/0111;
• Referring to the case of Macestena, The Upper Tribunal stated: First, this decision being on whether to grant permission, was not intended to give authoritative guidance; the observations made in it are obiter. Second, Collins J made quite clear at [18] that Regulation 24AA is an entirely lawful provision. Third, Collins J emphasises at [16] that cases in which there would be unlawfulness in the operation of regulation 24AA would be “comparatively rare”. Third, insofar as Collins J addressed the public policy dimension of the operation of Regulation 24AA, the Upper Tribunal stated that they could not ignore the fact, that this regulation (like the corresponding provision of the Citizens Directive which it transposes), represents a decision of the EU legislature not to provide for automatic suspensive effect in EEA removal cases. Fourth, it seemed to the Upper Tribunal that at most Collins J was here venturing suggestions for the Secretary of State to consider when adopting policy guidance as to the application of regulation 24AA. They are suppositions which may or may not find their way into future versions of the respondent’s policy guidance to caseworkers. His decision was considered to be no foundation for identifying public law error in the applicant’s case;
• Having regard to the refusal decision in this case, The upper Tribunal stated that it was beyond doubt that the respondent understood that her decision on certification involved the exercise of a discretion;
• The refusal decision showed that regard was given to section 6 Human Rights matters separate from the issue of serious, irreversible harm. The Upper Tribunal however considered that , in much the same way as the decision letters in the Kiarie and Byndloss cases were found wanting, the wording of the decision letters with which they were concerned is defective, in that it wrongly framed the Secretary of State’s consideration solely in terms of whether there was a real risk of serious, irreversible harm. It was stated that “such a risk” did not exist even having regard to family and private life factors, but it did not separately consider whether the applicant’s family, private life circumstances might constitute a breach of Article 8. Nevertheless, for very much the same reasons as Richards LJ gave in Kiarie and Byndloss in respect of the decision letters in those two cases, the Upper Tribunal found the defects in the decision letter in the applicant’s case to be immaterial. The applicant was considered to have failed to produce evidence to show that the decision would breach his human rights. He had not provided any evidence of any subsisting relationship with any persons who were dependent on him: he had not shown that he had very significant private life in the UK. The respondent could only respond to the evidence placed before her. The Applicant failed to particularise how his human rights were considered to be adversely affected by a temporary absence. Further, the decision under challenge did not purport to remove him unconditionally. It simply had the effect of overriding what would otherwise be potential suspensive effect of a pending appeal. If he were successful in his statutory appeal he would no longer be subject to exclusion or threat of such whilst still here;
• Having rejected the applicant’s grounds as originally pleaded, the Upper Tribunal concluded that the application for judicial review must fail. Further, the interim injunction granted to the applicant at an earlier stage of his case was stated to cease to have effect.

CONCLUSION

Although  having dealt with  some issues raised within the original grounds for judicial  review  and  at the substantive  hearing itself,  the Upper Tribunal left out some.  The Upper Tribunal however in their judgement,  purported for the sake of “completeness”  to reject any other issues raised within the grounds –  just so as to make it clear that any issue they did not in effect “tie up” in consideration was also  similarly rejected.  The Upper Tribunal was  clearly of the view that  relevant matters had been resolved resolutely  recently by the Court of Appeal  in  Kiarie and Byndloss– they were  in fact  most grateful that the Court of Appeal had notified their decision only a day before  this case was heard. There  is more to  the issues  in Regulation 24AA challenges  outwith the  Upper Tribunal’s  judgment and  these being early days yet,  whether seen the through the  lens of this case or  similar future ones,  the Upper Tribunal’s judgment  cannot be  a final resolution on   the legal issues  relevant to Regulation 24AA.