Strangely, although the case of R (on the application of Gabor) v Secretary of State for the Home Department (Reg 29AA: interpretation) [2017] UKUT 287, was promulgated on 25 October 2016, it appears to have only been published on 12 July 2017 by the Upper Tribunal. A delay of 8months- even more perplexing as the judgment itself is relatively short.
As to the effect of the decision, for practical purposes, it does not matter whether the temporary admission application considered in Gabor was under the now redundant 2006 EEA Regulations via Regulation 29AA or Regulation 41 of the new 2016 Regulations.
The issue was the true construction of the phrase, “The Secretary of State must grant P permission, except when P’s appearance may cause serious troubles to public policy or public security”, however the considered focus in Gabor was upon the meaning of the word “ appearance” set out in Regulation 29AA(3) – now Regulation 41(3).
This phrase has already been considered in detail by the Upper Tribunal in R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR [2016] UKUT 107.
The decision in Gabor however now casts doubt upon the interpretation placed by the Upper Tribunal in Kasicky on that word, “appearance”.
RELEVANT PROVISIONS UNDER THE 2006 AND 2016 REGULATIONS
Regulation 29AA of the Immigration (European Economic Area) Regulations 2006 provided in relevant part as follows:
“Temporary admission in order to submit case in person
29AA. – (1) This regulation applies where –
(a) a person (“P”) was removed from the United Kingdom pursuant to regulation 19(3)(b);
(b) P has appealed against the decision referred to in sub-paragraph (a);
(c) a date for P’s appeal has been set by the First Tier Tribunal or Upper Tribunal; and
(d) P wants to make submissions before the First Tie Tribunal or Upper Tribunal in person.
(2) P may apply to the Secretary of State for permission to be temporarily admitted (within the meaning of paragraphs 21 to 24 of Schedule 2 to the 1971 Act(a), as applied by this regulation) to the United Kingdom in order to make submissions in person.
(3) The Secretary of State must grant P permission, except when P’s appearance may cause serious troubles to public policy or public security”.
Regulation 41 of The Immigration (European Economic Area) Regulations 2016, relevantly provides:
“Temporary admission to submit case in person
41.—(1) This regulation applies where—
(a)a person (“P”) is subject to a decision to remove made under regulation 23(6)(b);
(b)P has appealed against the decision referred to in sub-paragraph (a);
(c)a date for P’s appeal has been set by the First-tier Tribunal or Upper Tribunal;
(d)P wants to make submissions before the First-tier Tribunal or Upper Tribunal in person; and
(e)P is outside the United Kingdom.
(2) P may apply to the Secretary of State for permission to be temporarily admitted (within the meaning of paragraphs 21 to 24 of Schedule 2 to the 1971 Act, as applied by this regulation) to the United Kingdom in order to make submissions in person.
(3) The Secretary of State must grant P permission, except when P’s appearance may cause serious troubles to public policy or public security”.
WHAT DID THE UPPER TRIBUNAL IN KASICKY SAY ABOUT THE WORD “APPEARANCE”?
Summary background:
Following a number of convictions, the Secretary of State issued a deportation order against, the applicant, a Slovakian national, 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.
On 15 May 2015, the applicant was removed to Slovakia following an unsuccessful judicial review challenge to the certification. He had appealed to the First-tier Tribunal against the decision to deport him. The appeal was listed to be heard on 30 July 2015. On 3 July 2015 the applicant applied under Regulation 29AA of the 2006 Regulations for permission to re-enter the United Kingdom to attend his hearing. This application was refused as well as that of 2 September 2015 and 30 September 2015. His appeal had been relisted to be heard on 19 October 2015. By way of judicial review proceedings brought on 9 October 2015, the applicant challenged the refusal or refusals under Regulation 29AA.
On 15 October 2015, the Upper Tribunal made an order granting judicial review, quashing the decisions refusing the applications made under Regulation 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.
Upper Tribunal’s key findings:
The relevant findings were as follows in Kasicky:
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As to the meaning of the word “appearance”, the Upper Tribunal stated at paragraph, 10 of their judgment, “………..I conclude that “appearance” in reg 29AA means appearance in the appeal process: it does not mean presence in the United Kingdom in any general sense”.
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The headnote itself states: “In reg 29AA(3) of the Immigration (European Economic Area) Regulations 2006, the word “appearance” refers to P’s formal presence at his appeal”.
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The Upper Tribunal also stated at paragraph 12 that , “…..It seems to me that the process of getting to and from the hearing, as well as the hearing itself, needs to be incorporated in the interpretation of reg 29AA as a matter of common sense”.
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As regards Regulation 29AA(3), the Upper Tribunal concluded at paragraph 16,“I summarise my interpretation of reg 29AA(3) as follows. 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.”
WHAT DOES COLLINS J APPEARING IN THE UPPER TRIBUNAL NOW SAY ABOUT THE WORD “APPEARANCE”?
Acknowledgments and divergent view:
Mr Justice Collins acknowledged that the relevant provisions had been considered by Mr Ockelton, Vice-President in R (Kasicky) v SSHD [2016] UKUT 00107 (IAC), however his considered view was as follows:
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He considered that sub-paragraph 3 of Regulation 29AA was somewhat badly drafted because on the face of it, it is the appearance which actually causes serious trouble rather than simply the presence in the UK. Collins J considered the approach that has been adopted by the Secretary of State, which seemed to him to be the sensible approach, is that one has to look at the presence in this country, the presence being as a result of the appearance that will take place.
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Collins J further acknowledged that Mr Ockleton had concluded in Kasicky that appearance in Regulation 29AA meant appearance in the appeal process, that it did not mean presence in the United Kingdom in any general sense.
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Collins J considered however that although sub-paragraph 29AA(3) was very badly drafted, it seemed to him that when one looked at this, it was a matter of considering what the purpose was behind this provision. He considered that it was very difficult to limit it to appearance in that sense because clearly the concern must be that coming back to the UK will create the necessary troubles within the provisions in sub-paragraph 3.
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Collins J concluded that he did not agree with Mr Ockelton’s narrow construction.
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Collins J stated what is covered is that the appearance before the Tribunal will mean that the applicant is in this country and it is that wider sense of appearance that is to be covered by that sub-paragraph.
What was wrong with the refusal decision of admittance?
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Having regard to the refusal of admission letter in Gabor, Collins J noted that it stated: “Further we have considered whether in spite of the fact your client may cause serious troubles to public policy or public security, it would be proportionate to refuse his entry.” Collins J concluded that “Proportionality” was not the test, the test is whether it can be said properly that there is the necessary basis for refusing leave pursuant to paragraph 29AA(3), that is to say that the Secretary of State can establish that his appearance may cause serious troubles to public policy or public security.
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The refusal decision was also noted to state: “In particular, we have balanced your client’s interest in providing his submissions in person against his threat to public policy or public security. While your client may wish to provide submissions in person, we see no reason why your client’s position could not be adequately presented without oral submissions and we do not consider that any benefit your client might gain from being present outweighs the violent and sexual threat he poses to other members of society.” Collins J noted that again this was not the correct test because the Regulation is mandatory and there must be admission for oral representations unless the basis for refusal is established.
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The refusal of admission letter also stated: “This threat could, in theory, be mitigated by detaining Mr Gabor during the period of temporary admission. However, given the violent and sexual nature of his offences it is considered that he poses the same risk of harm to staff and detainees as he does to the general public. Moreover, his previous attempt at entering the UK in breach of the deportation order indicates that he may fail to comply with removal directions after the appeal hearing.” Collins J clearly stated that this was a totally irrational decision. The suggestion that the applicant fell within sub-paragraph 3 because he may cause serious troubles to public policy or public security by assaulting or committing offences against prison staff was not to be regarded as a sensible approach by Collin J. He also considered that the suggestion that he might fail to comply with the rules or directions was equally not sensible because if he was kept in custody he would be removed still in custody and he would have no basis whatever to enable him to stay unless his appeal was allowed.
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The refusal decision was observed to state: “In addition, there would be significant costs involved in detaining Mr Gabor, which in light of the circumstances, would not be proportionate for the government to incur.” Collins J concluded that this had absolutely nothing to do with the case. It was not a proper basis within the regulations. He stated it might be that in two years’ time the situation could change but as the law now stood costs was not a relevant consideration.
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Collins J concluded that to be allowed to enter to appear meant that it must be right that the admission takes place within a reasonable time to enable the applicant properly to instruct his solicitors. It was necessary for solicitors to take proper instructions, maybe to find witnesses who could assist him in the given case and it seemed to Collins J that the requirement to give leave to enter to appear carries with it that the applicant should be enabled to make appearance which is one which is based on proper advice and proper instructions to those representing him. This did not mean that there need be a lengthy period before the hearing – he noted normally some two possibly three days before the hearing date is required.
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Collins J made a mandatory order for the Slovakian applicant’s re-admission to the UK.
Headnote to Gabor:
The actual headnote in Gabor therefore summarises as follows:
“1.An application for Temporary Admission pursuant to reg 29AA of the Immigration (EEA) Regulations 2006 must be granted unless the applicant’s appearance may cause serious troubles to public policy or public security. Proportionality is not the test, and the cost of facilitating the applicant’s appearance is not a relevant consideration. The test is whether it can be said properly that there is the necessary basis for refusing leave pursuant to para 29AA(3).
2.“Appearance”, in this context, means presence in the UK for the purpose of attending the hearing (Kasicky doubted).
3.Where admission is granted for this purpose it must take place within a reasonable time to allow the applicant properly to instruct his solicitors. Normally, some 2 or 3 days before the hearing will be required”.
CONCLUSION
I have appeared before Mr Justice Collins in the Upper Tribunal in the course of an appeal. His judgments are given extempore, easy to follow and non-meandering. As I recall, although the proceedings in which I appeared were heard on 18 February 2016, with the appeal being allowed on the same day (overturning a dismissal of an EEA deportation appeal by the FTT), it was not until 13 July 2016 that the decision was promulgated and sent out by the Upper Tribunal. The timing in promulgating Gabor therefore may have no other explanation behind it other than simple administrative/or other delay. One cannot however help but note that had Collins J‘s judgment been published in October 2016 that would have meant casting doubt upon Kasicky only 9months after it was published, all within the course of the same year.