Factors Relating to Deterrence and Public Revulsion of the Offender’s Conduct Generally Inapplicable to EEA National’s Subject to Deportation

The Home Office has within the  last year ( more  so  since the coming into force of the Immigration Act  2014) increasingly sought to put in place  measures to  deport as many foreign criminals as possible from the  UK but in so doing,  seem to be deliberately blurring   the line between the  relevant applicable law  and principles that apply when deporting a foreign national criminal  as opposed to an EEA national  criminal subject to deportation. There has,  for example,  been  a  deliberate mirroring  of  the Section 94B certification,  which  applies to non- EEA foreign national criminals    and the  Regulation 24AA Certification  that applies to  EEA nationals similarly  subject to deportation – the  intention  being to  deny deportees  an in – country right of appeal.   In  terms of relevant   litigation  in this regards for both categories of deportees, the Secretary has so far  been winning,  as in Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020 in relation to section 94B and  as regards Regulation 24AA, of which  judgment was handed down by the Upper Tribunal on 26 November 2015,   following a judicial review claim. The judgment is not yet in the public domain.

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EEA Deportation Regulation 24AA Certification Judgement: A Rubber Stamping Of Kiarie & Byndloss In Conjunction With Section 94B

In a judgement handed down  on  26 November 2015, the Upper Tribunal,   closely following Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020,  dismissed a Regulation 24AA certification    judicial review challenge  by an EEA national subject to deportation.

(Although no longer subject to an embargo, the judgement is at  the current time yet to be  published in the public domain).

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The Deportation and Exclusion Regime for EEA And Non- EEA Foreign National Criminals: Of Deportation Orders, Exclusion Decisions and Exclusion Orders

The  UK Government  has  over the years (more so since July 2012)  sought to introduce measures   intent upon ensuring  that  foreign national criminals  are  deported or excluded from the UK.  Where deportation appeals are won, the Home Office’s   now predictable  reaction  is an onward appeal,  challenging  allowed Tribunal decisions  and sometimes with success.  Those subject to deportation  therefore cannot afford to  proceed upon  an assumption  that once a deportation appeal  is won, the Secretary  of State will not seek to appeal such  a decision.

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Seeking to Deport EEA Nationals From The UK Before their EEA Appeals are Heard -EEA Deportations, Appeals and Regulation 24AA Certification

Having regard to EEA law with particular reference to the provisions of the  Directive 2004/38/EC and the differing levels of protection it provides to EEA nationals   against expulsion, the  Home Office have been aware for a considerable length of time of how difficult it is to seek to remove EEA nationals, even those subject to deportation having been convicted of criminal offences in the United Kingdom.   In brief the mentioned Directive provides that  EU member states may take expulsion decisions against Union citizens and their family members on grounds of public policy, public security  and public  health with such measures requiring to be  justified and in compliance with the principle of proportionality. The personal conduct of the  EEA citizen must also represent a genuine, present and sufficiently  serious threat affecting one of the fundamental interests of society.

It  is however becoming increasingly clear since the coming into force of Regulation 24AA of the 2006 EEA Regulations that the Home Office are making efforts to deport EEA nationals almost on the same basis as non -EEA foreign national criminals by resorting to human rights considerations and certifying arising human rights claim as a justification of effecting increased deportations rather than applying relevant law originating from the parent Directive 2004/38/EC.  Regulation 24AA was initially rolled out to a limited cohort of cases from 28 July 2014 however that first phase came to an end on 17 October 2014 and as such   the full practical effect of the regulation having wider applicability is now being felt. Regulation 24AA certification must now be considered in all deportation decisions made pursuant to the 2006 EEA Regulations unless it falls within certain exceptions.

In order to seek to substantially reduce the numbers of  EEA nationals having their appeals heard whilst they are present in the UK, regulation  24AA is being applied by the UK government to take effect  whether or not an EEA national has had a chance to appeal a negative EEA decision or where he has so appealed but the appeal is yet to be determined .   The effect of regulation 24AA is that the Home Office can issue a certificate within the negative decision and 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.

Where such removal directions are set, in order to prevent removal the Home Office will expect that an application for an interim order/injunctive relief be made to the Upper Tier Tribunal or other Court.   Such applications are usually made by way of a judicial review claim. So long as the interim order application has been submitted to the Upper Tribunal or relevant Court the removal will be deferred upon proof of an issued sealed claim without a decision upon  the interim order having actually  been taken by the Tribunal at the same time as lodgement.

There are however certain exceptions set out within regulation 24AA where removal will take place even if an application for an interim order is made. Regulation 24 AA has an accompanying Home Office Guidance Policy, ie The Regulation 24AA Certification Guidance for European Economic Area Deportation Cases Version 2.0 , 20 October 2014. The guidance applies to any EEA national or non-EEA national with enforceable EU law rights who fall to be deported under regulation 19(3)(b) of the 2006 EEA Regulations. The guidance among other provisions also provides for some very limited cases considered not suitable for regulation 24AA Certification.

The application of a regulation 24AA certificate therefore does not prevent a person from lodging an appeal from within the UK, rather, by amending regulation 29 of the 2006 EEA Regulations, it removes the suspensive effect of that appeal so that whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK.  The amended EEA Regulations however allow a person who has been deported to apply from out of country for permission to re-enter the UK solely in order to make submissions in person at their appeal hearing. The question currently appears to be whether removal and exclusion of EEA nationals by reliance on provisions stemming from regulation 24AA is lawful and justifiable as this regulation appears to focus on human rights considerations.   Although the human rights claim may have been certified, the EEA claim itself will not be. It may be argued that the resultant removal directions cannot be relied upon to deport the EEA national where the only reason is that there is a certification the human rights claim whilst the EEA appeal/claim remains pending. It can also be readily argued that having regard to the parent Directive, to the need to justify EEA deportations and   to only deport where it is proportionate and justifiable to do so the introduction of regulation 24AA and its accompanying policy appears somewhat contrary to basic EEA principles on expulsion of EEA nationals from host member states.

It appears that as long as the Home Office are satisfied that pending the outcome of the appeal, removal of an EEA national will not be unlawful under Section 6 of the Human Rights Act 1998 then removal of an EEA national subject to deportation is justifiable.   In this regards, an issue deserving of real consideration is that as a right of residence under EEA law provides a higher level of protection than that under a human rights claim, in  order to seek to circumvent the practical effect of regulation 24AA an EEA national may tactfully seek to exclude reliance upon human rights provisions during the course of a claim or appeal. The Home Office may however seek to treat a human rights claim as impliedly raised in any case depending on the facts put forward during the claim.   The current Home Office   approach seeming to combine   EEA law and human rights law however should not be necessary as these are separate and distinct areas of law. The grounds for certification in  regards to Regulation 24AA are based on a test of facing a real risk of serious irreversible harm if the EEA national is removed. Where an EEA claim or appeal is raised, having  regard to EEA law the grounds upon which exclusion of an EEA national are to be justified are set out within the parent Directive. Regulation 24AA contains none of the relevant EEA considerations required to justify exclusion more so when that regulation is clearly stated to be intended to have regards to human rights considerations.

Pending some detailed clarifications from the higher courts, the issue therefore is whether it is lawful for the Home Office to seek to set removal directions and exclude an EEA national from the United Kingdom having regard only to human rights provisions of the ECHR as opposed to relevant provisions of the parent Directive 2004/39/EC whilst an EEA claim remains pending and uncertified. There is thus currently an argument to be put forward that a regulation 24 AA certification as it applies in practice has the effect that reliance upon it to exclude EEA nationals from the UK before their deportation EEA appeals are heard may result in a breach of EEA law itself generally and a breach of the EEA national’s individual rights specifically.

The Government’s Deport First, Appeal Later Policy – Deportation of Foreign National Criminals and Appeal Rights After the Immigration Act 2014

INTRODUCTION

The Government has brought in changes in relation to restricting appeal rights and these mostly  affect foreign national criminals subject to deportation. In essence where foreign national criminal who are subject to deportation do not raise a protection claim or human rights  claim they will not obtain a right of  appeal. However where they do in fact raise these claims in order to resist deportation, the Home Office may certify the claim in particular relying upon new certification powers  thereby denying the foreign national criminal an in- country right of appeal altogether and instead requiring them to appeal outside the UK following departure.

LIABILITY TO DEPORTATION

Non- EEA foreign criminals  may be considered for deportation under the Immigration Act 1971   or the UK Borders Act 2007.

To be subject to automatic deportation  provisions the foreign national criminal must meet the relevant criteria under the UK Border Act 2007.  Where the foreign national criminal does not meet the automatic deportation threshold criteria consideration is given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good.

Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:

  • the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
  • the period of imprisonment is 12 months or more, and
  • the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
  • the criminal was serving that sentence on or after 1 August 2008, and
  • the criminal had not been served with a notice of decision to deport before 1 August 2008, and
  • none of the exceptions set out in section 33 of the 2007 Act apply.

Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Where an exception applies then automatics deportation cannot continue however that does not necessarily preclude deportation action under the Immigration Act 1971. An individual is also exempt from automatic deportation under sections 33(1)(b) of the UK Borders Act 2007 if they fall within sections 7 or 8 of the Immigration Act 1971 and they are exempt from deportation. Where the Secretary of State decides none of the exceptions apply and that deportation under section 32 of the UK Borders Act 2007 is required, a decision to deport must be served setting out why the foreign national criminal’s presence  is not conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the United Kingdom is not conductive to the public good. This gives the Secretary of State discretion to act in a way that reflects the pubic interest.

A non -EEA foreign national will normally be considered for deportation pursuant to  the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below;

  • the non -EEA foreign national is recommended for deportation by a court empowered to do so;
  • the non- EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime;
  • the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
  • the non EEA foreign national is a persistent offender. “Persistent offender” means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
  • the non EEA foreign national has been sentenced to less than 12 months’ imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;

The Home Office can also take into account:

  • Cautions: Police cautions can also be taken into account when considering whether deportation is conducive to the public good;
  • Previous Convictions: All previous convictions can be taken into consideration when making a deportation decision on or after 13 December 2012;
  • Serious Harm offences: The Secretary of State has discretion to consider whether an offence has caused serious harm. Such an offence may result in a sentence of less than 12 months but may still be grounds on which to pursue deportation.

Section 3(5)(b) of the Immigration Act 1971 provides for deportation of family members if another person to whose family he belongs is or has been ordered to be deported. When considering whether section 3(5)(b) is appropriate full account must be taken of paragraphs 365 to 366 of the Immigration Rules. Section 7(1) of the Immigration Act 1971  states that it is not lawful to deport Commonwealth or Irish Citizens who were Commonwealth or Irish Citizens and were ordinarily resident in the UK for the commencement of the Act in January 1973 and ordinarily resident in the UK for at least five years before the decision to make a deportation order. Where the Home Office decide that deportation is appropriate then a decision to make a deportation order is served by the Secretary of State setting out why the foreign national’s presence is non-conducive to the public good. The decision informs the foreign national that they may if they wish make representations within 20 working days as to why they should not be deported. The decision is required to issue a warning under Section 120 of the Nationality, Immigration and Asylum Act 2002 which places a continuing obligation to raise with the home office any reason why they should be permitted to remain in the UK including any time there is a change of circumstances as soon as they occur. The decision is also required to seek representations from the foreign national about whether there are any reasons why any appeal against a final refusal of any claim by the Home Office should not be certified under section 94B of the 2002 Act, the effect of which would be an out of country right of appeal. Article 8 claims from foreign national criminals are considered under paragraphs 398 to 399A of the Immigration Rules also with reference to sections 117A to 117D of the Nationality Immigration and Asylum Act 2002(as amended by section 19 of the Immigration Act 2014).

If there is found to be a breach of the UK’s obligations under the refugee convention or the ECHR then deportation  under either the UK Borders Act 2007 of the Immigration Act 1971 will not be possible.

DEPORTATION APPEALS AFTER 20 OCTOBER 2014

The changes to the immigration appeals system in the Immigration Act 2014 are being brought into force on a phased basis. The first phase started on 20 October 2014 and included foreign criminals being deported. The new appeals regime will also apply to persons being deported as family members of foreign criminals under section 3(5)(b) of the Immigration Act 1971.

Rights of appeal are restructured such that a person only has a right of appeal where the Secretary of State refuses a human rights claim or a protection claim or revokes a person’s protection status. The 2014 Act does not change the rights of appeal under EEA regulations and deprivation of citizenship.

The place from which an appeal can be brought or continued is dependant on where the person was when  the claim was made and the nature of the claim. The definition  of “foreign criminals” does not include  all deportation cases. Some persons who are not foreign nationals may be subject to deportation. During the first  phase of commencement of the new Act these persons will retain rights of appeal under the pre- Immigration Act 2014 regime. Where a foreign national criminal makes a human  rights or protection claim if the claim is refused the right of appeal is under  the new Act. If no representations are made after the above mentioned 20working day deadline for representations has passed, the Secretary of State is most likely to make a decision on issuing a deportation order on the facts that are before them. As a human right claim will not have been made by the individual the deportation order will not be appealable and the individual may expect to be removed. Any representations received after the deportation order has been made must still be considered by the Home office. If it is decided on the basis of the post – deportation order representations  that deportation should not be pursued the deportation order will be revoked. However under the new Act there is no longer a right of appeal against deportation or the refusal to revoke a deportation order. Therefore from  20 October 2014 foreign criminals will no longer be able to appeal against a deportation decision. Any foreign criminal who applies to have their deportation order revoked will fall under the new appeals regime if they are served with a refusal to revoke( a revocation decision) on or after 20 October 2014. This will be the case irrespective of whether the decision is served in the UK or overseas.

A person is however likely to have a right of appeal where the Secretary of State refuses to revoke a deportation order only where they make a protection or human rights claim which is refused.

CERTIFICATION

If the representations  raise protection or human rights grounds and it is decided to refuse the claim(s), the Secretary of State is required to  consider whether the claims should be certified under existing powers (section 96 and section 94 of the 2002 Nationality and Immigration Act) or in the case of non- protection claims under section 94B of the 2002 Act( as inserted by the 2014 Act) which allows the certification of human rights claims made by those liable to deportation in certain circumstances. Where it is not possible to certify a protection or human rights claim under the above mentioned provisions then the foreign national will have an in- country right if appeal.

CONCLUSION

The current government ‘s policy in relation to foreign national criminals is ” deport first, appeal later”. In practice therefore there  are instances of foreign national criminals who having held indefinite leave to remain for  up to 20years with  families here having their human rights claims being refused and certified under Section 94B of the 2002 Act. They are expected to appeal outside the UK following their departure. The Home Office themselves acknowledge that meeting the threshold for the irreversible harm test in this regards is high and that cases that will succeed are rare. Therefore although there is a reduction in rights of appeal as a result of the amending provisions of the 2014 Act and the introduction  of new and additional certifying powers, in practice the mere fact of potentially being able to appeal a  human rights claim if refused is just but a mere hope.

Where certification is applied, this means currently in light of the relatively new appeal provisions,  judicial review claims will be lodged  as the Section 94B power of certification is discretionary and it may also be possible to seek to challenge the certification decision also having regard to what appears a restrictive  accompanying policy being applied in conjunction with Section 94B of the 2002 Act. Therefore rather than expediting removals of foreign national prisoners by denying them a right of appeal in- country, for some time at least there will be a priority by claimants to take judicial review action. Having regard to the lengthy period of time the Upper Tier Tribunal is taking to consider such types of review claims, it is not only likely that it will take longer to deport affected persons but also that whilst judicial review claims are pending they may even be granted bail by the Tribunal.

Jimmy Mubenga and the use of restraint in enforced removals: Does a need for the Government to effect deportations ever have to result in a loss of life?

“Jimmy Mubenga death: G4S guards ignored deportee’s cries before he died on airliner”, reported the Independent on 4 November 2014.

Three G4S security guards are currently on trial for manslaughter following the death of Jimmy Mubenga on 12 October 2010 on a British Airways flight from Heathrow about to take off for Angola. Following service of a criminal sentence in the UK, Mr Mubenga was due to be deported by the immigration authorities. He was being escorted by three private security guards working for Group 4 Services (G4S) contracted by the UK Border Agency. Following his death, an inquest returned a verdict of unlawful killing as it was found that Mr Mubenga, a father of five had died as a result of unlawful force being applied. Mr Mubenga had died following the use of restraint by the security guards. They held Mr Mubenga forward such that he was unable to breath properly. Shouts that he could not breath were heard by other passengers however these were unheeded by the security guards.

It is truly hoped that there never need be a loss of life during the removal process due to unreasonable force being used, however the government is under increasing pressure to effect removal of deportees in particular following the recent report on 22 October 2014 from the National Audit Office as regards Foreign National Offenders (FNO). The report found that , “Removing FNOs from the UK continues to be inherently difficult and public bodies involved have been hampered in their efforts by a range of barriers, although poor administration has still played a part……”

Amyas Morse, head of the National Audit Office also stated, ” It is no easy matter to manage national offenders in the UK and to deport those who have completed their sentences. However, too little progress has been made, despite the increased resources and effort devoted to this problem. The Government’s focus on preventive measures and early action is promising, but it has only just started to exploit these options. It needs to build on the momentum of its recent action plan….”

The government can therefore be expected to increasingly focus more on removals of those in particular who have been convicted here and served their sentence.

Although the government will effect enforced removals where a person no longer has a legal basis to remain in the UK, the question however arises as to whether the techniques employed to restrain deportees show respect for the dignity and rights of those being removed. Clearly a loss of life during the deportation process does not.

Mr Mubenga had been held in a ‘head-down” restraint position using techniques which were not part of the control and restraint techniques in which the detainee custody officers involved had been trained.

Another obvious question would be how best to approach an apparently non-compliant deportee just before a flight if not by use of some physical force. Rather than approach the issue solely from the perspective of needing to swiftly effect a “successful” removal by whatever means, it may be necessary to consider and appreciate the heightened situation of distressed intensity a deportee may find himself in during the removal process in particular as in the case of Mr Mubenga where he was leaving behind a wife and children behind in the UK. Apparently the security guards did not seek to calm the situation down with words but simply and mainly resorted to the use of force.

The government has published a Detention Services Order 07/14, Risk Assessment Guidance for Contracted Escort Staff with an implementation date of 30 August 2014. It provides guidelines on the waist restraint belt, leg restraints and the mobile chair for detainees under escort and associated risk assessment. A further Detention Services Order 06/2014, Risk Assessment Guidance for Escorted Moves- All Contractors with an implementation date of 26 August 2014 provides guidelines on handcuffs, leg restraints and escort chains on detainees under escort and associated risk assessment. Both orders recognize that the use of any restraint should be necessary, reasonable and proportionate and that unless risk is properly assessed and the use of restraints fully justified, the use of restraints is likely to amount to inhumane and degrading treatment under Article 3 of the ECHR.

The government will therefore continue to apply some restraint however where in a particular situation a deportee, in inevitable distress as will almost always be the case in an enforced removal situation, resists removal the most reasonable and proportionate course of action surely is to abandon that proposed removal rather than risk a loss of life or cause severe physical injury to a deportee. The deportee not being in a position to escape custody from an airplane can be returned to the place of detention and another removal date set for another day. The vast majority of detainees liable to removal are to be assumed to be reasonable and sensible people regardless of their place of origin and can be expected to reach a conclusion sooner or later that where there is no prospect of remaining in the UK that they will eventually have to leave. Unless a deportee seeks somehow to make themselves “indefinitely irremovable”, which may be an impossible mission long term, those that may physically resist removal more vigorously than others can also be expected to cooperate at some point with the removal process. Although it may be of some cost to the government to defer removal and cancel a flight, rather than for escorts/ security guards to seek to take a risk and use physical force in a situation which may quickly and unexpectedly escalate out of control, this may be a more reasonable, proportionate and humane course of action rather than risk a loss of life merely to effect a deportation.