Masalskas v SSHD: EEA National Fails In A Regulation 24AA Certification Test Case Challenge In 2015 But Subsequently Wins His Substantive Deportation Appeal In The Upper Tribunal In 2016

The Judicial  Review Regulation 24AA  Certification Challenge in the Upper Tribunal:

In December 2015,  the Upper Tribunal   published the case of  Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677, an EEA  Regulation  24AA certification  judicial review challenge in  which I applied for and obtained an interim order suspending removal of an EEA national  whilst at the same time  settling  the grounds  of claim in March 2015.

Read more about the case of Masalskas

Permission for judicial  review was granted a few months later.  The   oral  substantive hearing was heard by the Upper Tribunal in  October 2015, with the judicial review challenge being  unsuccessful  however  some  legal principles arose  out of that case in relation to Regulations 24AA  and 29AA of the 2006 EEA Regulations.  No further appeal was made to the Court of Appeal.

The EEA Deportation Appeal:

Whilst the judicial review claim awaited  a decision on permission,  the substantive EEA   deportation appeal( initially lodged in January 2015)  went ahead to be heard  in July 2015 by the First Tier Tribunal( FTT).  I represented the Appellant.  The FTT   dimissed the appeal.  In August 2015,  I prepared the  grounds seeking  permission to  appeal  the FTT Judge’s decision.   In December 2015,  permission to appeal  was granted on all grounds put forward with the main arguments being that:

  • The   FTT Judge dismissed the Appellant’s appeal without apparent legal reasoning not having regard to relevant caselaw;
  • The FTT Judge had no consideration to relevant documents before him when assessing risk of harm issues including risk of reoffending thus affecting the FTT’s consideration of whether the Appellant is a genuine and present sufficiently serious threat to the fundamental interests of UK society;
  • The FTT failed to appreciate (by the reference to the evidence they omitted to consider) that the Appellant was at a well advanced stage of rehabilitation such that in combination with his lengthy period of lawful residence here, the Appellant   had become well integrated in UK society;
  • Despite the Appellant not being entitled to the highest level of protection( 10years residence), nor the second level of protection( 5years permanent residence), on the facts of this case, the FTT Judge failed to appreciate that the Appellant was entitled at the very least to the basic level of protection as an EEA citizen residing in the UK.

Permission hearing in the Upper Tribunal on 18 February 2016:

I represented the Appellant  today in the Upper Tribunal before Mr Justice Collins and Judge Shaerf, with Mr Justice Collins  paying  particular  regard to:

  • relevant caselw;
  • the 2006 EEA Regulations;
  • the Appellant’s documentary evidence in relation to rehabilitative efforts made to address offending behavior whilst in prison;
  • the grounds for permission in conjunction with the FFT Judge’s decision;
  • the skeleton argument I prepared that had been before the FTT Judge;
  • the oral submissions.

The Upper Tribunal agreed today with my written and oral submissions in relation to  the Appellant( on the basis  that he is entitled to  the basic  level of protection against  expulsion),  that his appeal must  be allowed.   Mr Justice Collins further agreed with me,  that the Appellant having sought to   undertake  awareness  courses  of  considerable length to  address his offending behaviour and  without the FTT Judge taking this evidence into account in his reasoning, the conclusion that the Appellant was  a genuine, present and sufficiently serious threat  to society and at risk of harm  or re-offending was erroneous and contrary to the evidence that was before the FTT Judge.

Some Case Law Considered:

    • Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC)
    • Secretary of State v Dumliauskas [2015] EWCA Civ 145
    • MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC)

What Was In The Appellant’s Favor?

As noted by the Upper Tribunal in 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 reason why the Appellant had found himself subject to adverse Home Office measures was 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.

  • Mr Justice Collins did acknowledge that when the Appellant was arrested in 2013, at that time( Upper Tribunal’s emphasis) he was a drug user, however matters clearly went beyond that. Mr Justice Collins stated that it was important in a case such as this, that consideration be given to future risk and what steps an Appellant has taken to deal with drug addiction. The evidence that was before the FTT Judge was that the Appellant had taken steps to deal with his addiction. This was also relevant to the assessment of likelihood of re-offending, which in this case was low. The Appellant’s own efforts at rehabilitation therefore   greatly assisted in the success of his appeal.
  • It was noted that the Appellant had made quite a few efforts whilst in prison to make applications requesting access to some courses to address his offending behaviour; he had also repeatedly asked for his sentence plan and OASYS report. Although there was no pre-sentence report prepared in relation to the criminal case, the OAYS report noted that   this was the Appellant’s first conviction in the UK and that the Appellant had shown remorse for his offending behaviour. He further did not display behaviour to suggest he had “pro criminal attitudes”.
  • Neither the Secretary of State’s deportation decision nor the FTT Judge’s decision acknowledged that the Appellant had before and after the deportation decision undertaken part in programmes related to drug and alcohol awareness whilst in prison.
  • The FTT Judge   chose not to acknowledge that   the NOMS report, OAYS’s report and a letter   from probation service indicated that the Appellant was at low risk of harm and low risk re-offending.
  • The Criminal Judge’s Sentencing Remarks noted that the Appellant’s case was   a lesser role case and the harm was at the bottom end of category 2.

 Having found an error of law within the FTT decision, the Upper Tribunal considered whether  they should  send the  case back to the FTT for  rehearing, however Mr Justice Collins stated that he was satisfied   that the decision  of the FTT  Judge as well as  that  of the Secretary of State to deport the Appellant was not in accordance  with  the 2006 Regulations  and therefor allowed the Appellant’ s  appeal outright on the day of the hearing itself.

The Regulation 24AA certification procedure – What  use was  invoking this procedure in this case ?:

It may be that the Secretary of State will appeal the Upper Tribunal’s decision but for now,  clearly  this Appellant’s  success in relation to this substantive  deportation EEA appeal, less than 3 months following  the separate reported  decision in his case in Masalskas, v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677, makes no sense- if the course of events in relation to this  EEA Appellant seeking  to resist expulsion  were relayed to a lay person.  Yes, the  legal issues being considered were different- last year, a differently  constituted  panel of the Upper Tribunal was considering  the same  Appellant’s judicial review  challenge to the decision to certify his Article 8 claim under Regulation 24AA of the 2006 EEA Regulations, whereas the  substantive  deportation appeal  heard today by the Upper Tribunal, in summary  related to whether the Appellant could be deported on grounds of public policy or public security following his conviction. The certification decision and the decision to deport were all however contained in the same document.

Mirroring s.94B of the 2002 Act, regulation 24AA contains a first requirement (at regulation 24AA(2)) that the Secretary of State may only give directions for P’s removal if she certifies that removal pending the outcome of P’s appeal would not be unlawful under section 6 of the HRA 1998. The “real risk of serious irreversible harm…” test arises only as a ground on which the Secretary of State may certify a removal under paragraph (2). As noted by the Upper Tribunal in Masalskas, at paragraph 26 of their judgment,  it is clear that regulation 24AA does not mandate the Secretary of State to certify a removal in every case in which she considers the two-pronged statutory test is made out. The language of the provision clearly imports discretion:  it provides only that the Secretary of State may certify a removal. The effect of regulation 24AA therefore is that the Home Office can issue a certificate within the negative deportation decision warning that removal directions may or will be set directing  the EEA national’s removal from the UK pending the outcome of the appeal so long as the Home Office is satisfied that removal would not be unlawful under Section 6 of the Human Rights Act 1998 which requires the Home Office not to act contrary to the Human  Rights Convention. The grounds upon which the Home Office can certify the decision include that the EEA citizen would not before the appeal is finally determined face a real risk of serious irreversible harm if removed from the United Kingdom.   This sets a very high threshold to overcome. The Applicant was intended to be removed in March 2015  to Lithuania by the Secretary of State  despite having lodged an appeal  in January 2015 in the FTT.  The issued interim order , upon application prevented his imminent removal.

At paragraph  47  of their judgement, the Upper Tribunal stated in relation to  the certification challenge, “…..First, the applicant had simply 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 and what was produced in this regard was nugatory.  Second, even on the basis of his own claim, he 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”.  The ultimate decision on  the facts was that   the application for judicial review must fail and that the  interim injunction granted to the applicant at an earlier stage of his judicial review case ceased to have effect. The only  thing that had been preventing the  Secretary of  State from deporting  the appellant since March 2015  until the  judicial  review claim was decided, was the  interim order- this was regardless of whether his EEA  substantive deportation appeal was pending; regardless of how strong  the Appellant’s  evidence was in relation to the deportation appeal case; regardless of whether or not the Secretary of State was correct  to seek to deport this appellant  on EEA grounds and also regardless  of  whether  the FTT Judge’s decision in  dismissing the appeal was correct in law.  Once the  interim order was lifted, it would not have been very difficult for  the Secretary of State to remove this Appellant to Lithuania, more so since no appeal to the Court of Appeal was  pursued.

Permission to appeal by the Upper Tribunal in the substantive   deportation appeal case was given after the judicial review claim failed and as such  this Appellant could have found himself  in Lithuania at any point from the date of lifting  of the interim order last year.  Although the Appellant was present today, never having been removed, regardless of the fact that he gave no further oral  evidence, had he been removed, he would  have been denied the opportunity to be present at his own deportation appeal hearing, arising out of a flawed home office decision that  was not justified nor  proportionate.

Appreciation of the correct legal principles in relation to deportation of EEA nationals combined with the evidence in play, as well as common sense, dictated  that justice and fairness being applied to the facts of his case,  that  the correct lawful decision should have been made initially last year  on substantive  appeal by the FTT in July 2015,  well before  the judicial review  claim was heard in October 2015.  It was clear at the date of the substantive EEA deportation appeal in July 2015, that on the evidence before the FTT Judge,  this Appellant, despite his shortcomings,  did not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

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