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)  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)  UKUT 00316 (IAC)
- Secretary of State v Dumliauskas  EWCA Civ 145
- MC (Essa principles recast) Portugal  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)  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)  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.