EEA nationals and deportation: Inapplicability of Kiarie and Byndloss effect to take sting out of Regulation 33 Certification

Quietly but determinedly the UK Government continues to detain EEA nationals subject to deportation. Some are deported, not on the basis of any crime committed in the UK but by reliance upon a previous adverse criminal history in the country of origin. Removal directions follow shortly after detention, even if the EEA national has a pending appeal yet to be heard in the immigration Tribunal.

 

 

In Wandzel, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2018] EWHC 1371 (Admin), the Claimant, a Polish EEA national subject to deportation, sought to argue that following the decision of the Supreme Court in Kiarie and Byndloss, the Regulation 33 certification applied to his case was unlawful.

 

On the facts of his case, the argument failed to properly lift off the ground with the Administrative Court seemingly making short shrift of them, holding that certification was not unlawful. 

 

 

What was the thrust of the argument in Wandzel?

 

The Court in Wandzel summarised the effect of Kiarie and Byndloss at paragraphs 27 and 28 of its decision:

 

  • “In Kiarie and Byndloss, the appellants were both served with deportation notices after having been convicted of serious offences in relation to drugs. The Home Secretary had issued certificates under s.94B of the Nationality, Immigration and Asylum Act 2002 that it would not be unlawful under the Human Rights Act for them to be removed before any appeal against deportation had been begun or exhausted. One appellant would have been deported to Jamaica, the other to Kenya. They had no entitlement to apply to return for the purpose of appearing at the appeal, there being no applicable provision equivalent to reg.41 of the 2016 Regulations. The Supreme Court held that the certificates represented a disproportionate interference with the procedural protections of Article 8 of the European Convention on Human Rights and were therefore unlawful.

  • Lord Wilson noted that the appellants in Kiarie and Byndloss were what is termed “foreign criminals” and as such they faced a “formidable hurdle” before their appeals could succeed. Each such appellant “needs to be in a position to assemble and present powerful evidence” [55]. He had “grave doubts” they could possibly succeed on appeal “without giving oral evidence to the tribunal” [61]. The practical difficulties of giving evidence remotely from Jamaica or Kenya were very considerable”.

The Claimant in Wandzel argued that certification in his case was unlawful for the same reason as it was held to be unlawful in Kiarie and Byndloss, namely that it would deprive the Claimant of fair and effective access to his appeal right.

The outcome in Wandzel:

 

The Court indicated that it would proceed on the assumption that the Claimant did have an arguable appeal against his deportation and that by reference to Article 8 he had rights for his appeal to be effective. It was also proceeded on the basis that the onus was on the Secretary of State to demonstrate that certification was fair and proportionate.

 

The Court  found that in all the circumstances, on the facts of the case, the Claimant would not suffer a breach of his Convention rights were he to be removed in advance of his appeal hearing and that the certification was lawful.

 

The certification was not disproportionate or unfair because:

 

  • There was a legitimate public interest in removing him from the UK as a matter of public protection. Parliament has provided a power of certification permitting removal prior to the commencement or completion of an appeal against deportation in circumstances such as prevailed in this case. Whilst the Claimant’s offending had not been of the most serious kind, it had been persistent.

  • The Claimant was known to have an entitlement to apply for permission to return for the purpose of attending the appeal to make submissions, under Regulation 41 of the 2016 Regulations and that was a substantial legislative protection. He was not a person likely to fall within the exceptions to the granting of Regulation 41 permission.

  • He would be returning to Poland, a country where he had lived for his first 43 years and from where it could reasonably be anticipated it would be practicable for him to prepare for his appeal and return to the UK for the appeal hearing.

  • He had been given reasonable opportunity to make representations and provide evidence as to why he should not be removed pending any appeal and had not done so.

  • Removal pending appeal would not render ineffective his right to bring an arguable appeal before the First Tier Tribunal

 

The Court therefore dismissed the claim that the Regulation 33 certification was unlawful. The certification was found to be proportionate, fair and lawful.

 

Comment

 

Despite the Administrative Court’s recent decision, it is difficult to shake off the persistent thought that we have not heard the last of the full applicability of Kairie and Byndloss arguments in the context of Regulation 33 certification. A Court of Appeal decision on the issues might approach matters differently, depending on the facts of any such future case.

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