Kasicky: Upper Tribunal Interprets Regulation 29AA and quashes decision to deny re- entry of EEA National to attend his deportation appeal in the UK

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Three main cases have been  reported by the Upper Tribunal  between December 2015 and February 2016 in relation to the interpretation  of regulation 24AA certification as well as the regulation 29AA  permission re- entry procedure.

The relevant cases are:

  • R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR [2016] UKUT 00107 (IAC) – this was a judicial review  claim in relation to a Slovakan national, concerned with whether the Secretary of State’s decision to refuse  the Applicant  permission to re-enter the United Kingdom, pursuant to regulation 29AA,  to attend his appeal  hearing was lawful;
  • Gheorghiu (reg 24AA EEA Regs – relevant factors) [2016] UKUT 00024 (IAC)- this concerned a Romanian national’ s deportation appeal case; his case having been certified under regulation 24AA and the appellant having been removed from the UK, his appeal was heard  in his absence.    The Upper Tribunal however gave some  indication  of the factors a Judge  would take due account of in an application to suspend certification enabling pre-appeal removal  in an EEA case.
  • R (on the application of Masalskas) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) IJR [2015] UKUT 00677 (IAC) -the Applicant was a citizen of Lithuania who sought judicial review of the decision made by the Secretary of State to certify his removal from the United Kingdom under regulation 24AA of the 2006 Regulations.  On the same day that the Applicant applied for judicial review he also applied for an interim injunction to prevent removal( 17 March 2015). This was granted and it was ordered that the Secretary of State  was not to remove the Applicant until determination of the judicial review application  or further order. The applicant had earlier (in January 2015) lodged a statutory appeal against the EEA decision to make a deportation order against him.  At the date he brought his judicial review proceedings his statutory appeal was still pending.  His  deportation appeal was  however dismissed by  the First  Tier Tribunal whilst the judicial review proceedings were awaiting a decision on permission. An application for permission to appeal was lodged in the First Tier Tribunal.  The  Applicant    was subsequently  granted permission  for judicial review by the Upper Tribunal. By the time the Applicant’s judicial review claim was heard in October 2015,  the Applicant still  had a pending application for permission  to appeal  in the First Tier Tribunal.

The decisions in Kasicky, Gheorghiu were in themselves positive as to the  outcome  sought in the individual cases when  compared to Masalskas. It is noteworthy however that although   these  three cases were published very closely to each other, none of the two  mentioned cases published after Masalskas refer to that case.  The considerations in this regards are set out  in the concluding  part  of this article.

Continue reading on my analysis of the three cases dealing with Regulation 24AA and 29AA of the EEA Regulations 2006

REGULATION 24AA AND 29AA OF THE 2006 EEA REGULATIONS

Regulation 29AA:

Regulation 29AA applies where an EEA national has been  removed from the United Kingdom pursuant to regulation 19(3)(b) and where the person  has appealed against the decision and  a date for  the appeal has been set by the First Tier Tribunal or Upper Tribunal.  Where the person  wants to make submissions before the First Tier Tribunal or Upper Tribunal in person, he may apply to the Secretary of State for permission to be temporarily admitted  to the United Kingdom in order to make submissions in person.  The Secretary of State must grant the  permission sought , except when the person’s appearance may cause serious troubles to public policy or public security.

 When determining when the person is entitled to be given permission, and the duration of  temporary admission should permission be granted, the Secretary of State must have regard to the dates upon which  the person  will be required to make submissions in person.

Where the person  is temporarily admitted to the United Kingdom pursuant to Regulation 29AA, a hearing of his  appeal has taken place and the appeal is not finally determined, he may be removed from the United Kingdom pending the remaining stages of the redress procedure – but  the person  may apply to return to the United Kingdom to make submissions in person during the remaining stages of the redress procedure in accordance with Regulation 29AA.

Where the Secretary of State grants the person  permission to be temporarily admitted to the United Kingdom under regulation 29AA , upon such admission he  is to be treated as if  he  were a person refused leave to enter under the 1971 Act for the purposes of paragraphs 8, 10, 10A, 11, 16 to 18 and 21 to 24 of Schedule 2(b) to the 1971 Act. The person will be deemed not to have been admitted to the United Kingdom during any time during which he is temporarily admitted pursuant to the regulation.

To accompany the insertion of regulations 24AA and 29AA, the Home Office also issued a document entitled “Regulation 24AA Certification Guidance for European Economic Area deportation cases”.  This also summarises regulation  29AA and its effect.  At paragraph  5.3 it indicates the standard paragraphs to be inserted in a decision to make a deportation order, which indicate the person’s ability to make an application under the regulation.  Amongst those paragraphs are the following:

“Permission will not be granted if the Secretary of State considers that your presence would cause serious troubles to public policy or public security.

 You must apply for permission in advance of attempting to re-enter the UK or you will be refused admission at the UK Border.

 If permission is granted, it will be a temporary admission pursuant to Schedule 2 of the Immigration Act 1971. If you were deported under the Early Removal Scheme then you will be recalled to prison if you are admitted to the UK before the expiry of your sentence.  In any other case you are liable to be held in immigration detention for the duration of your stay.

 You must leave the UK immediately after your appeal hearing or you will be enforcedly removed.

 In the case of any subsequent hearing at which you wish to submit your case in person, you must apply again for permission to re-enter.

 Any return to the United Kingdom is entirely at your own cost.”

Paragraph 5.4 reads as follows:

“Under regulation 29AA the Secretary of State must grant such permission, except where the person’s re-admission for the purpose of appearing and making submissions at their appeal hearing may cause serious troubles to public policy or public security.”

Regulation 29AA implements Article 31.4 of the Citizens Directive 2004/38/EC.

Regulation 24AA:

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2014 amended the Immigration (European Economic Area) Regulations 2006 so that an appeal against a deportation decision under regulation 19(3)(b) of the EEA Regulations will suspend removal proceedings, unless the Secretary of State has exercised her discretion to certify removal.  The Secretary of State  can certify removal if the person’s deportation before the conclusion of any appeal proceedings would not give rise to a real risk of serious irreversible harm or otherwise be unlawful under section 6 of the Human Rights Act 1998.  If removal has been certified, it will only then be suspended if the person subject to removal has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.

The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK; rather, by amending regulation 29 of the EEA Regulations, it limits the suspensive effect of that appeal. So, whilst a person may lodge an appeal in-country, the lodging of such an appeal does not suspend removal from the UK, provided the removal is certified.

Regulation 24AA applies to:

  • a person who appeals in time against an EEA deportation decision, where that appeal has not been finally determined
  • a person who has not appealed against an EEA deportation decision but would be entitled to do so from within the UK (this does not include out of time appeals)

RELEVANT CASELAW

R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR [2016] UKUT 00107 (IAC):

The case concerned a Slovakain EEA national who had been removed from the UK. The Secretary of State had issued a deportation order against him on 26 January 2015 and certified  under regulation  24AA of the Immigration (European Economic Area) Regulations 2006 that his removal would not be unlawful under s 6 of the Human Rights Act 1998, on the ground that there was no real risk of serious irreversible harm if he were to be removed pending full determination of any appeal he might bring.

Having lodged an appeal, on 3 July 2015 he applied under regulation 29AA of the 2006 Regulations for permission to re-enter the United Kingdom to attend his hearing. The Secretary of State refused the application on 17 July 2015. When the appeal hearing came, the applicant  not being  present, the Judge adjourned the hearing in order to afford an opportunity for the applicant to attend.  A further request under regulation  29AA was made on 31 July 2015 and refused on 2 September 2015.  A third request was made on 26 September 2015 and refused on 30 September 2015.  By then the appeal had been relisted to be heard on 19 October 2015.  Judicial review  proceedings, challenging the refusal or refusals under regulation  29AA, were brought on 9 October 2015.  On  15 October 2015, the Upper Tribunal made  an order granting judicial review,  quashing the decisions refusing the applications made under regulations  29AA, and requiring the Secretary of State  to grant the applicant permission to be temporarily admitted in order to make submissions in person at the hearing of his appeal on 19 October 2015.

The Upper Tribunal stated that they were not referred to any relevant authority on the meaning of any part of regulation  29AA but  were however referred to the Secretary of State’s guidance, on Regulation 24AA Certification Guidance for European Economic Area Deportation Cases, version 2.0 dated 20 October 2014, which also   summarises regulation  29AA and its effect.

  • Meaning of the word  “appearance”:

The Upper Tribunal made it clear that the legal test must be that set out in the Regulations.  The primary question  therefore was  the true construction of the phrase “when P’s appearance may cause serious troubles to public policy or public security”. The Upper Tribunal  started with the meaning of the word “appearance”. The Upper Tribunal concluded that “appearance” in regulation  29AA means appearance in the appeal process: it does not mean presence in the United Kingdom in any general sense. The Upper Tribunal noted that they were  not asked to look at the versions of the Citizens Directive in any other language, however stated that such comparison as they have  been able to make, however, did not suggest an interpretation different from that which  the Upper Tribunal  had  already set out.

It seemed to the Upper Tribunal that the process of getting to and from the hearing, as well as the hearing itself, needed to be incorporated in the interpretation of regulation  29AA as a matter of common sense.  The Upper Tribunal was of the view  that the relevant Guidance, at paragraph 5.4, was probably more or less accurate: but  that the standard paragraph set out in paragraph  5.3 of the guidance expressed the exception much too widely.

  • Construction of “serious troubles to public policy or public security”:

The Upper Tribunal noted that, if the person  is a prisoner released on licence, his return to the United Kingdom will result in his return to custody and that it  did seem very difficult to say that a person who will spend his time in the United Kingdom in custody will pose any serious risk to public policy or public security.  In  considering whether a person who is not released on licence is to be allowed to return,  the Upper Tribunal stated that consideration should be given to the fact that, under the general law and again by reference to the standard paragraphs, he can be detained under the Immigration Acts, or, if not detained, can be subject to reporting, residence and other conditions.  In both these cases, the Upper Tribunal did not think that it can be right to say that the possibility (or moral certainty) of the person’s being in detention wholly removes the risk of serious troubles to public policy or public security: if it did, it might be difficult to justify such a person’s removal or exclusion from the United Kingdom in the first place by reference to grounds of public policy or public security.  On the other hand, given the phrasing of article 31.4 and regulation  29AA, and the clear presumption that a person is to be allowed into the United Kingdom subject only to the exception, in  the Upper Tribunal’s judgment the means available for reducing any risk of serious troubles is a factor which must be taken into account in determining whether permission to re-enter is to be granted.

Summarising the interpretation of regulation  29AA(3), the  Upper Tribunal stated that there is a presumption of a person’s re-admission to make submissions in person before a Tribunal hearing his appeal.  The exception is when his appearance before the Tribunal, including necessary arrangements for getting him to and from the hearing may cause serious troubles to public policy or public security.  In deciding whether the exception applies, the possibility of the person’s detention, under the Immigration Acts or otherwise, does not of itself remove the risk of trouble, but is a factor to be taken into account.

  • Omission of Public health Ground from Regulation 29AA:

 The Upper Tribunal stated that although a person can be excluded from the United Kingdom on grounds related to public health, the continued existence of those grounds does not apparently prevent his claiming to be allowed to re-enter the United Kingdom in order to present his case. That is the effect of the omission of the health grounds from regulation  29AA (and indeed art 31.4).  It  seemed to the Upper Tribunal to point to the correctness of the view just expressed in relation to public policy and public security.  The fact that a person whose state of health may pose a risk to the United Kingdom is nevertheless entitled to be remitted to argue an appeal, appears necessarily to suggest that his re-admission will need to be under such conditions as would prevent the eventuation of the risk he poses.  Thus, the Secretary of State’s powers of constraint must be part of the general context of decision-making under regulation  29AA.

  • Upper Tribunal’ s decision

The Upper Tribunal considered that each of the Secretary of State’s decisions was unlawful for  the following reasons:

  • The decision-maker was not properly alive to the rule that the applicant was entitled to enter the United Kingdom for his hearing unless his appearance at that hearing (as distinct from general matters relating to his presence in the United Kingdom) would cause serious troubles to public policy or public security. It was  to be noted that none of the decisions make any reference to difficulties that might arise at or in connection with the hearing itself.
  • None of the decisions took properly into account the facilities available to the Secretary of State for managing and reducing any risk that she might fear. When it was specifically put to her that the evidence appeared to show that there would be no risk to staff managing the applicant’s detention, the Secretary of State did not respond. Thus, in making her decisions, the Secretary of State failed to take into account two relevant factors.  That was  the reason for the Upper Tribunal  quashing the decision or decisions in question.

Given that the Secretary had three discrete opportunities to establish that the exception to the principle of re-admission applied and had failed to do so, and given also the timescale,  the Upper tribunal  considered that the right thing to do was to take the view that the exception did not apply.

The Upper Tribunal therefore ordered that the Secretary of State grant permission under regulation 29AA.

Gheorghiu (reg 24AA EEA Regs – relevant factors) [2016] UKUT 00024 (IAC)

The case concerned an Romanian national, who being subject to deportation proceedings, had  been removed from the United Kingdom, after it was decided to certify his case under regulation 24AA of the Immigration (EEA) Regulations.  An application that was made to the Secretary of State under regulation 29AA of the Regulations to attend the appeal was unsuccessful and the appeal  accordingly proceeded in his absence with his wife giving evidence. The couple had three children aged 20, 19 and 15. The Applicant’s wife was   in employment  in the UK as was the eldest daughter; the younger two children were  at college and school.

By way of background, in November 2007, the Appellant was convicted of driving a motor vehicle with excess alcohol, was fined and disqualified from driving for 20 months. There have been no subsequent convictions.  It seemed that in June 2014 the Secretary of State became aware that Mr Gheorghiu had a criminal record in Romania. In 1990 he was convicted of the offence of rape and sentenced to 6 years imprisonment. Between 2001 and March 2002 he was convicted on three occasions of forestry offences, cutting timber without a licence, and received custodial sentences on the last two occasions.  On 28 January 2015, the Secretary of State made the decision to deport Mr Gheorghiu, essentially because of the serious nature of his overseas convictions, notably the conviction for rape.  It was assessed that he posed a present threat to public policy and his deportation was proportionate under regulation 21. The First Tier Tribunal allowed the appeal, however the Secretary of State appealed the decision to the Upper Tribunal.

In allowing the appeal, the First Tier Judge had also stated that “The fact that the appellant has committed previous offences is not a matter which can solely justify deportation; there is no evidence which leads me to find that he is a genuine, present and sufficiently serious threat to one of the fundamental interests of society; his present conduct in the last seven years, has been that of a law abiding and working member of United Kingdom society, exercising treaty rights as a worker. I do not find that deportation is justified on imperative grounds of public security, because there is no evidence which shows that he represents a genuine, present and sufficiently serious threat to public security. The threshold of imperative grounds is a high level of justification for deportation, and I find that the decision made by the respondent in this case has not reached that level”.

 The Secretary of State appealed on the grounds that the judge fell into error in the reference made to imperative grounds in the passage highlighted above. The Upper Tribunal agreed with the Secretary of State. This was because a period of ten years before the decision was taken in the present case started in January 2005. The Appellant had entered the UK in breach of domestic immigration law in 2002, and did not have leave to enter or remain. Romania was not then a member of the EU and he could have had no Treaty rights to remain at that time. There was no evidence before the judge that he had entered into lawful employment before January 2007.  He could not have been lawfully resident for the purpose of EU law and the EEA regulations between January 2005 and January 2007. The position was different for the period from January 2007 onwards.  There was evidence accepted by the judge that the Appellant  had worked continuously from the first date that he was entitled to do so.  For most of the period in the five years before the decision in January 2015, there was documentary evidence of self-employed status for tax purposes, but in any event there was the evidence of the wife that she was supported by her husband’s earnings that the judge accepted.  The implication of this was that the Appellant had acquired a permanent right of residence under regulation 15 (1)(a) of the Regulations, as he had resided lawfully in the United Kingdom for a purpose (employment) that was in accordance with the Regulations.  The consequence was that although the judge fell into error in referring to imperative grounds of public policy, he should have referred to ‘serious grounds of public policy or public security’ in accordance with regulation 21 (3).

The Upper Tribunal however decided that although there was an error by the judge in referring to imperative grounds, it made no difference to the outcome of the appeal. The first part of the  Judge’s  decision quoted above, was sufficient to allow the appeal even at the basic level of protection from expulsion for EU citizens. The Appellant could only have been removed on the basis that a higher threshold of serious grounds was met. In the light of the judge’s primary conclusions of fact there were no such grounds.

The Upper Tribunal dismissed  the Secretary of State’s appeal.

Regulation 24AA factors:

The Upper Tribunal stated that they were conscious that the Appellant was removed from the United Kingdom, pursuant to the Secretary of State’s certification. It was  noted that this decision may have been influenced by the fact that he failed to respond to the pre- decision inquiry into his personal circumstances. It was also  further noted that his legal team failed to apply to a judge of the First-tier Tribunal to suspend the certification pursuant to regulation 24AA (4) of the Regulations.

The Upper Tribunal stated at paragraph 21 of their judgment that,  no doubt that if an application  to suspend certification enabling pre-appeal removal were made  in an EEA case, the judge  would take due account  of the following factors:-

  • that the status of an EEA national exercising Treaty rights of  employment and residence in the host state at the time of the expulsion decision are significantly different from those of aliens generally;  interference with the right of residence is not permitted in the absence of a sufficiently serious and present threat to  the requirements of public policy, that cannot include in an EU case general deterrence or the interest of maintaining purely domestic immigration control;
  • that the removal pending appeal from the communal household of the principal wage earner of the family who (as here) is both a spouse and a parent  of a minor child involved in the child’s  daily life  is itself an interference with both the right to respect for  family life under Article 8 and the  EU Charter of Fundamental rights and the EU right of residence afforded by the Citizens Directive;
  • that in cases of serious criminality, if there is no evidence of continuing risk to the public, the case for expulsion may not be a strong one; where there is some evidence of risk  that is being addressed and  rehabilitation of the offender is promoted by the family and employment circumstances in the host state, then, at least in the case of people entitled to permanent residence  in that state, substantial weight may be afforded to the duty to promote rehabilitation (see Essa (EEA rehabilitation/integration) [2013]  UKUT 316 (IAC)  as corrected by the Court of Appeal in  SSHD v Dumliauskas and others [2015] EWCA Civ 145 at  [46] and [54];  see also MC  (Portugal) [2015] UKUT 00520 (IAC). Interference with the factors that promote such rehabilitation may not be readily justified.
  • that in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence  and the enhanced ability to assess  the sincerity of that evidence is an important part of the fact-finding process (see for example the observations of this Tribunal as to the benefits of having heard the offender in  Masih (Pakistan) [2012] UKUT 46 (IAC) at [18]; see also Lord Bingham in Huang [2007] 2 AC 167 at [15]).

R (on the application of Masalskas) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) IJR [2015] UKUT 00677 (IAC)

The case concerned an application for judicial review  in relation to regulations 24AA and 29AA.

The Applicant was a citizen of Lithuania who sought judicial review of the decision made by the Secretary  of State to certify his removal from the United Kingdom under regulation 24AA of the 2006 Regulations. On the same day, 17  March 2015,  the Applicant applied for judicial review he also applied for an interim injunction to prevent removal. This was granted and it was ordered that the Secretary of State  was not to remove the Applicant until determination of the judicial review application  or further order. The applicant had earlier (in January 2015) lodged a statutory appeal against the EEA decision to make a deportation order against him.  At the date he brought his judicial review proceedings his statutory appeal was still pending.  His  deportation appeal was  however dismissed by  the First  Tier Tribunal whilst the judicial review proceedings were awaiting a decision on permission- an application for permission to appeal was lodged in the First Tier Tribunal.  The  Applicant    was subsequently  granted permission  for judicial review by the Upper Tribunal.  By the time the Applicant’s judicial review claim was heard in October 2015,  the Applicant still  had a pending application for permission  to appeal  in the First Tier Tribunal

The Upper Tribunal stated that  it was  not in dispute that Article 31(2) is faithfully transposed by regulation 24AA(4); likewise it was common ground that regulation 29AA seeks to give effect to the provisions of Article 31(4).

The Upper Tribunal also stated that as now clarified by Kiarie & Byndloss in respect of identical wording in section 94B of the 2002 Act, the statutory test set out in regulation 24AA is two-pronged and cannot be reduced to a mere question of whether an affected person faces a real risk of serious irreversible harm if removed.  The latter is not the overarching test.  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 a person’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).   The  Upper Tribunal also  clarified that it was 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: as already noted, it provides only that “The Secretary of State may certify a removal …”. Further  Regulation 24AA is not a free-standing power to certify removal. It is parasitic on there being an “appeals process” (24AA(2)).

The Upper Tribunal  considered it beyond doubt that the Secretary of State understood that her decision on certification involved the exercise of a discretion. The decision letters showed that regard was given to section 6 HRA1998 matters separate from the issue of serious, irreversible harm.  However, 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  the Upper Tribunal  concerned was 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.

The Upper Tribunal stated that for very much the same reasons as Richards LJ gave in Kiarie and Byndloss in respect of the decision letters in those two cases, they found  the defects in decision letters in the Applicant’s case to be immaterial.  There are essentially two reasons for this.  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.    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.

CONCLUSION

  • Relevant Case Dates:

Kasicky was heard on 14 October 2015, promulgated on 28 January 2016 and  published on  25 February 2016.

Gheorghiu was heard on 18 November 2015, promulgated on 24 November 2015 and published on 14 January 2016.

Masalskas  was heard in  the Upper Tribunal on 14 October 2015, promulgated on 26 November 2015  and then published on 11 December 2015.

  • Gheorghiu and Masalskas:

At paragraph  21 in Gheorghiu, the Upper Tribunal stated, “We are aware that the certification power is a novel one, and no case law on its application in appeals under the EEA Regulations exists. Since the hearing our attention has been drawn to the recent decision of the Court of Appeal in R (ota Kiarie and others) [2015] EWCA Civ 1020 handed down on 13 October 2015 and concerned with the application of a similar power in Article 8 deportation appeals. That decision upheld certification decisions made on the facts of the particular cases; and noted that in Article 8 cases, appeals from abroad can be an effective remedy, but much depends on the assessment of the requirements of justice in the particular case reached by specialist immigration judges (see per Richards LJ at [64] to [67]”.

However clearly, Masalskas, a case which considered Regulation 24 AA  certification to a good extent, was heard, promulgated and published  before Gheorgiu. Masalaskas stated at paragraph 1 of the judgement;

“This application for judicial review concerns regulations 24AA and 29AA of the Immigration (European Economic Area) Regulations 2006 (hereinafter “the 2006 Regulations”). These regulations are a relatively recent addition to the ever-expanding panoply of the 2006 Regulations, having been inserted with effect from 28 July 2014 (SI 2014/1976). As far as we are aware, ours is one of the first cases which seeks to deal in any depth with their proper scope and meaning. It has assisted our task that the day before our the hearing the Court of Appeal gave judgment in the case of Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020 (13 October 2015) (hereafter “Kiarie and Byndloss”) which concerned a very similar provision to regulation 24AA set out in the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) (as amended), namely section 94B[1].  In order to set the scene, it is useful first of all to set out the relevant legislative and policy framework of which regulations 24AA and 29AA form a part”.

The decision in Gheorghiu however could not have dealt with regulation 24AA to any great  depth as  no application was ever made to suspend that Appellant’s removal as occurred in Masalskas; neither could Gheorghiu, have  dealt with Regulation 29AA in substantial   detail as   the request of return under Regulation 29AA was  refused by the Secretary of State; therefore the most relevant issues before them were error of law arguments in relation to permission to appeal as regards to the substantive  EEA deportation appeal itself.

 It may however be arguable that before setting out the factors at paragraph 22 of their judgment, the Upper Tribunal in Gheorghiu( had they been aware of Masalskas)  should have first grappled with  the principles arising out of  that decision  and then considered whether they sat well with the  factors  they set out in relation to Regulation 24AA.

By comparison with some of the Gheorghiu regulation 24aa factors, at paragraph  31 of their judgement, the Upper Tribunal in Masalskas stated:

“We derive from the above that 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, P’s removal would have an unduly harsh impact on him and/or his family members.  One possible example, to borrow from the Home Office document “Section 94Bthe Nationality, Immigration and Asylum Act 2002”, Version 5, 30 October 2015, at 3.18, concerns the situation where “the person has a genuine and subsisting relationship with a partner or parental relationship with a child who is seriously ill and requires full-time care, and there is credible evidence that no one else could provide that care”. But, going by the Court of Appeal’s analysis in Kiarie & Byndloss and the guidance given in the aforementioned document on the similar provision, section 94B, such cases are likely to be relatively rare”.    

In a case where the Secretary of State certifies a claim under regulation 24AA, the question therefore  is whether in applying for an interim order  within the Upper Tribunal  to prevent   removal of the EAA national as well  challenging the certification decision,  should only Masalakas, Kiarie, the relevant  Home Office certification Guidance   govern the situation or  should there also be  a reference  to Gheorghiu?

  • Kasicky and Masalskas:

At paragraph 13 in Masalaskas, the Upper Tribunal stated, “Nevertheless, particularly because his appeal remains pending, we do not consider that his application has been rendered academic. Success in this 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”. Given the wide-ranging nature of the submissions before us in this case, our decision may additionally assist in clarifying the proper ambit of regulations 24AA and 29AA in other cases”.

As noted above, the Upper Tribunal in Masalskas( a judicial review case)  indicated  that  in addition to regulation 24AA,   regulation 29AA was also in play,  however  when  interpreting regulation 29AA, the Upper Tribunal  in  Kasicky, also an Upper Tribunal judicial review case,  made  no reference to Masalskas.

In relation to Regulation 29AA, in Masalskas the Upper Tribunal stated:

“22.Likewise it was common ground that regulation 29AA seeks to give effect to the provisions of Article 31(4). Whilst Mr Malik disputed that it fully achieved this, we consider Ms Smyth is entirely right in her submission that Article 31 is predicated on recognition that expulsion decisions against Union citizens do not attract automatic suspensive effect. As we have just explained, 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)).

23.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)”. 

32.Article 31(4) prohibits a Member State excluding the individual concerned from their territory pending the redress procedure from preventing the individual “from submitting his/her defence in person” (subject to two limited exceptions). (We do not need to explore why the word “defence” is used, although we posit that it may be linked to the fact that in some Member States expulsion decisions are made by criminal courts.) Reflecting that prohibition, 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, “P may apply to the Secretary of State to be temporarily admitted”.  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)).

33.Mr Malik voices two objections to any reading of either provision that confines the right to return under regulation 29AA to attendance at the hearing of the statutory appeal. First he argues that the use of the verb “exclude” limits the scope of Article 31(4) to cases in which a person has not yet been admitted to/entered the United Kingdom. (If he were right in this submission, that would of course raise an issue as to whether regulation 29AA is a lawful transposition of Article 31). We can dispose of this objection summarily, it being entirely clear from the wording of Article 31(4) that exclusion is used to denote the expulsion of persons. That is also the primary sense of the word as used in Article 32 (Duration of exclusion orders). Indeed, in Article 31(4) exclusion is juxtaposed with cases when there is an appeal or judicial review concerning a “denial of entry to the territory”. Whether recourse is had to a literal, contextual or purposive meaning, exclusion exists within Article 31 as a procedural safeguard for those who have been removed or expelled “pending the redress procedure”

34.Mr Malik’s second objection is that to delimit the prohibition to prevention of return to attend a hearing would improperly circumscribe the “right to be heard” which must be understood to encompass not just the hearing itself but pre-hearing stages, including preparation of a case and oral conferencing with legal advisors. We are no more persuaded by this objection than we are by the first. If Mr Malik were right, then since pre-hearing preparation can both theoretically and sometimes in reality begin on the very day the deportation/removal decision is made, there would never be any lawful basis for exclusion “pending the redress procedure”. We do not exclude that the Secretary of State may decide to temporarily admit an individual to make submissions in person for some period of days before an actual hearing; for her to do so would be an entirely lawful step under regulation 29AA. However, there is plainly no right of an individual to be present in the United Kingdom in advance of an actual hearing……………

35.It is fair to say that 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. 

36.That difference might be said to suggest that it would be proper to restrict the proper ambit of regulation 24AA to cases where there was a particularly strong reason to certify notwithstanding that an affected person would in any event have a right to return to be present at their hearing. It seems to us that there are two responses fatal to that suggestion. The first is one we have highlighted already. 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*.  In commenting on Article 29 of this document states:

“Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse. The judgment of national courts can be relied on to ensure that the interests of both the individual concerned and the Member States are adequately protected.”

37.We accept Ms Smyth’s submission that in this respect the EU institutions were concerned to give legislative effect to the judgment of the Court of Justice in Case C 98/79 Pecastaing v Belgium, in which the applicant challenged an order that she leave Belgian territory whilst she had a pending action against the Belgian authorities for refusing her a residence permit. ……………..

39.The second response, which was also adumbrated earlier, is that the 2006 EEA Regulations at regulations 24AA and 29AA reflect a similar resolve of the United Kingdom legislature to make removal lawful pending the redress procedure, without any caveat save for the guarantee of a right to return to make submissions before the First tier Tribunal or Upper Tribunal in person except when P’s appearance may cause serious troubles to public policy or public security”.

No removal of the Applicant in Masalskas ever took place  following the regulation 24AA  certification and as such  the Upper Tribunal on  hearing the judicial review  claim on 14 October 2015, apart from what they  considered above,   could not have  put forward any more than they  did as summarised in their Headnote which is  as follows:

“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”.

By contrast, the Upper Tribunal in  Kasicky, being a case where there relevantly had been a removal of the Applicant and also concerning a specific regulation 29AA permission request  to re-enter, actually  went  ahead and gave an interpretation  on the phrase   “except when P’s appearance may cause serious troubles to public policy or public security” as clarified above.

Regulation 24AA considerations are however very likely to  crop up again by way of caselaw  guidance, however is to be hoped  that next time, this  will be  in the Court of Appeal.

 

 

 

 

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