Regulation 24AA and 29AA: Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677

The now reported  Upper Tribunal decision  regarding an  EEA Deportation  Regulation  24AA Certification  judicial review challenge in  which I applied for and obtained an interim order suspending removal of the EEA national  whilst at the same time  settling  the grounds  of claim, upon which  permission for judicial  review was granted leading to the Upper Tribunal hearing  the claim:

Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677-:

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”.

My comments on the case, on 26 November 2015, can be  viewed  at :

https://ukimmigrationjusticewatch.wordpress.com/2015/11/26/eea-deportation-regulation-24aa-certification-judgement-a-rubber-stamping-of-kiarie-byndloss-in-conjunction-with-section-94b/

 

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