R (on the Application of Gabor) v Secretary of State for the Home Department (R 29AA: Interpretation)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Collins |
| Judgment Date | 25 October 2016 |
| Neutral Citation | [2017] UKUT 287 (IAC) |
| Date | 25 October 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 287 IAC
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
THE HONOURABLE Mr Justice Collins
Mr D Chirico, Counsel, instructed by Wilsons appeared on behalf of the Applicant.
Mr B Keith, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
R (on the application of Gabor) v Secretary of State for the Home Department (Reg 29AA: interpretation)
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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).
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2. “Appearance”, in this context, means presence in the UK for the purpose of attending the hearing (Kasicky doubted).
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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.
The applicant in this case is from Slovakia. He came to this country but committed serious offences and as a result it was decided that he should be removed on grounds of public policy and that he qualified under the relevant Regulations to be removed. He appealed against that decision and what is in issue in this case is his right to be returned in order to appear in person at the hearing of his appeal. That is fixed for 8 November next, which is a Tuesday.
The relevant provision is paragraph 29AA of the Immigration (European Economic Area) Regulations 2006. So far as material this states:
“(1) This Regulation applies where —
(a) a person (“P”) was removed from the United Kingdom pursuant to Regulation 19(3)(b); (which is the position here)
(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 Tier Tribunal or Upper Tribunal in person.”
All those sub-paragraphs apply to this applicant.
The following sub-paragraphs provide:
“(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.
(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) …
(6) …
(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.”
It is also provided that the applicant can be kept in detention if that is considered necessary.
It is to be noted that in sub-paragraph (3) the Secretary of State is required to grant permission unless the appearance may cause serious troubles to public policy or public security. Sub-paragraph 3 is somewhat badly drafted because on the face of it, it is the appearance which actually causes serious trouble rather than simply the presence in this country. The approach that has been adopted by the Secretary of State, and it seems to me 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. These particular provisions have been considered by Mr Ockelton, Vice-President in R (Kasicky) v SSHD [2016] UKUT 00107 (IAC), a case decided in October 2015, which also involved a Slovakian national as it happened and Mr Ockelton had to decide amongst other things what was the meaning of sub-paragraph 3 and the question of appearance. As he said in paragraph 14 of his judgment “It does seem very difficult to say that a person who will spend his time in the United Kingdom in custody will pose any serious risk to public policy or public security”. That seems to me to be an eminently sensible decision and of course as Mr Ockelton indicated it is important to bear in mind that it is a requirement that leave be given to enter to appear.
He also at paragraph 9 considered the meaning of sub-paragraph 3 and what was covered by the word...
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Upper Tribunal (Immigration and asylum chamber), 2016-10-25, [2017] UKUT 287 (IAC) (R (on the application of Gabor) v Secretary of State for the Home Department (Reg 29AA: interpretation))
...GIVEN FOLLOWING HEARINGR (on the application of Gabor) v Secretary of State for the Home Department (Reg 29AA: interpretation) [2017] UKUT 00287 (IAC)Field HouseLondon19 October 2016The QUEEN(ON The application OF milan GABOR)ApplicantandTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespond......