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

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

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Masalskas v SSHD: EEA National Fails In A Regulation 24AA Certification Test Case Challenge In 2015 But Subsequently Wins His Substantive Deportation Appeal In The Upper Tribunal In 2016

The Judicial  Review Regulation 24AA  Certification Challenge in the Upper Tribunal:

In December 2015,  the Upper Tribunal   published the case of  Masalskas, R (on the application of) v Secretary of State for the Home Department (Regulations 24AA and 29AA EEA Regs) (IJR) [2015] UKUT 677, an EEA  Regulation  24AA certification  judicial review challenge in  which I applied for and obtained an interim order suspending removal of an EEA national  whilst at the same time  settling  the grounds  of claim in March 2015.

Read more about the case of Masalskas

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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.