R (on the Application of Kasicky) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,CMG Ockelton |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] UKUT 107 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 January 2016 |
[2016] UKUT 107 (IAC)
In the Upper Tribunal (Immigration and Asylum Chamber)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Mr C M G Ockelton, Vice President
The Queen on the Application of
Mr D O'Callaghan, instructed by South West Law, appeared on behalf of the Applicant.
Mr Sternberg, instructed by the Government Legal Department, appeared on behalf of the Respondent.
R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR
1. In reg 29AA(3) of the Immigration (European Economic Area) Regulations 2006, the word “appearance” refers to P's formal presence at his appeal.
2. In ascertaining whether the exception in reg 29AA applies, the possibility of managing risk by detention or conditions is a factor to be taken into account.
The applicant is a national of Slovakia. He entered the United Kingdom as an Accession State Worker on 23 March 2006 and has since been working in the United Kingdom in the exercise of Treaty rights. Following a number of convictions, the Secretary of State issued a deportation order against him on 26 January 2015 and certified under reg 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.
The applicant challenged the certification by judicial review (JR/2505/2015). Patterson J refused permission. On 15 May 2015 the applicant was removed to Slovakia.
He has appealed to the First-tier Tribunal against the decision to deport him. The appeal was listed to be heard at the Newport hearing centre on 30 July 2015. On 3 July 2015 he applied under reg 29AA of the 2006 Regulations for permission to re-enter the United Kingdom to attend his hearing. The respondent refused the application on 17 July 2015. When the appeal hearing began there was (it appears) some surprise that the appellant was not present. When the judge was informed of the reason he adjourned the hearing in order to afford an opportunity for the applicant to attend. A further request under reg 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. The present proceedings, challenging the refusal or refusals under reg 29AA, were brought on 9 October 2015.
In view of the urgency of the matter I attempted to direct in advance that the application for permission be adjourned into Court as a “rolled-up” hearing. At the hearing before me it was apparent that the parties were unaware of that, but both counsel expressed their willingness to work to a tight timetable. Having heard oral submissions, I indicated the probable line of my decision, giving Mr Sternberg an opportunity to make further written submissions after considering the matter overnight. On consideration of those submissions I made on 15 October 2015 an order granting judicial review, quashing the decisions refusing the applications made under reg 29AA, and requiring the respondent 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.
Regulation 29AA of the Immigration (European Economic Area) Regulations 2006 is 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.
(4) When determining when P is entitled to be given permission, and the duration of P's temporary admission should permission be granted, the Secretary of State must have regard to the dates upon which P will be required to make submissions in person.
(5) Where –
(a) P is temporarily admitted to the United Kingdom pursuant to this regulation;
(b) a hearing of P's appeal has taken place; and
(c) the appeal is not finally determined,
P may be removed from the United Kingdom pending the remaining stages of the redress procedure (but P may apply to return to the United Kingdom to make submissions in person during the remaining stages of the redress procedure in accordance with this regulation).
(6) Where the Secretary of State grants P permission to be temporarily admitted to the United Kingdom under this regulation, upon such admission P is to be treated as if P 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.
(7) Where Schedule 2 to the 1971 Act so applies, it has effect as if –
(a) the reference in paragraph 8(1) to leave to enter were a reference to admission to the United Kingdom under these Regulations; and
(b) the reference in paragraph 16(1) to detention pending a decision regarding leave to enter or remain in the United Kingdom were to detention pending submission of P's case in person in accordance with this regulation.
(8) P will be deemed not to have been admitted to the United Kingdom during any time during which P is temporarily admitted pursuant to this regulation.”
The regulation implements art 31.4 of the Citizens Directive 2004/38/EC:
“Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.”
I was not referred to any relevant authority on the meaning of any part of reg 29AA. I was, however, referred to the Secretary of State's guidance, in s 5 of the guidance on Regulation 24AA Certification Guidance for European Economic Area Deportation Cases, version 2.0 dated 20 October 2014. That guidance summarises reg 29AA and its effect. At para 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.
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