R X v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWHC 1997 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 2016 |
| Docket Number | Case No: CO/2190/2015 |
[2016] EWHC 1997 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Walker
Case No: CO/2190/2015
Ms Leonie Hirst (instructed by Deighton Pierce Glynn Solicitors) for the Claimant
Mr David Blundell and Ms Julia Smyth (instructed by the Government Legal Department) for the Defendant
Hearing dates: 18 November 2015
Written submissions were lodged during the period 20 November 2015 to 4 July 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version may be treated as authentic.
By order dated 29 July 2016 no report of this case shall directly or indirectly identify the claimant, nor shall it directly or indirectly identify those who wrote the letters which accompanied the representations made by the claimant's then solicitors on 20 April 2015. The present judgment has been prepared so that it may be published without contravention of that order.
Paul Walker, 29 July 2016.
Table of Contents
| A. Introduction | 3 |
| A1. X and his two sets of proceedings | 3 |
| A1.1 What happened in Romania and has happened in the UK | 3 |
| A1.2 First proceedings: appeal to the FTT against deportation | 3 |
| A1.3 Second proceedings: the present judicial review claim | 4 |
| A2. The judicial review claim in more detail | 4 |
| A2.1 X's matters of complaint and grounds for judicial review | 4 |
| A2.2 Acknowledgement of service & permission to proceed | 5 |
| A2.3 Subsequent steps in the judicial review claim | 5 |
| A2.4 Overview of this judgment, & outcome of the claim | 6 |
| B. The Citizens Directive & the EEA Regulations | 7 |
| B1. The Citizens Directive | 7 |
| B2. The EEA Regulations up to 28 July 2014 | 11 |
| B3. The EEA Regulations from 28 July 2014 onwards | 12 |
| C. History of events | 14 |
| C1. Events in Romania prior to 2007 | 14 |
| C2. Events 1 Jan 2007 to 27 July 2014 | 14 |
| C3. Events 28 July 2014 to 19 March 2015 | 15 |
| C4. Events 19 March to 11 May 2015 | 17 |
| C4.1 Form IS.91 & 20 March notice; X's detention 23 March | 17 |
| C4.2 The 24 March detention authorisation | 17 |
| C4.3 Form IS.91RA and the 24 March letter | 17 |
| C4.4 The 20 April representations | 20 |
| C4.5 The 23 April decision notice | 22 |
| C4.6 The 23 April deportation order & detention authorisation | 23 |
| C4.7 The 24 April detention review | 23 |
| C4.8 Events 5 to 10 May inclusive | 24 |
| C5. Events 11 May 2015 to the end of August 2015 | 25 |
| C5.1 The 12 May pre-action protocol letter | 25 |
| C5.2 The 14 May supplementary letter | 25 |
| C5.3 The grant of the stay, and letters of 18 & 19 May 2015 | 27 |
| C5.4 The 22 May detention review | 28 |
| C5.5 The 17 June monthly progress report | 29 |
| C5.6 Permission to proceed, and the 18 June detention review | 29 |
| C5.7 The 16 July detention review and monthly progress report | 30 |
| C5.8 Grant of bail on 21 July | 30 |
| C5.9 The 23 July notice of restriction | 30 |
| C6. Events from September 2015 onwards | 31 |
| C6.1 Hearing, and outcome, in the FTT | 31 |
| C6.2 The Home Secretary's application for permission to appeal | 31 |
| D. Challenges to the EEA Regulations & the policy | 31 |
| D1. EEA Regulations & written policy: introduction | 31 |
| D2. Reg 24 AA: The reasons complaint | 31 |
| D3. Reg 24AA: proportionality/unlawful test complaints | 33 |
| D4. Reg 24AA: the effective remedy complaint | 35 |
| D5. The blanket policy complaint | 39 |
| D6. Travel costs policy complaint | 41 |
| D7. Unlawful policy considerations | 41 |
| E. Pre-redress exclusion of X under Reg 24AA | 42 |
| E1. Pre-redress exclusion of X: introduction | 42 |
| E2. The "real risk of serious irreversible harm" test | 43 |
| E3. Compliance with domestic law principles | 45 |
| E4. Compliance with the Home Secretary's policy | 45 |
| F. Complaints about detention | 46 |
| F1. Detention: introduction | 46 |
| F2. Stage 2: 24 March to 23 April 2015 | 47 |
| F3. Stage 3: 23 April to 23 July 2015 | 50 |
| F4. Stage 1 of detention on 23 March 2016 | 52 |
| G. Conclusion | 53 |
A. Introduction
A1. X and his two sets of proceedings
A1.1 What happened in Romania and has happened in the UK
The claimant ("X") is a Romanian national who was born in that country on 15 June 1968. In 2004 he was detained there in order to serve a twelve year sentence of imprisonment for a murder committed on the night of 26 to 27 December 1989. However in 2008 he was released early on conditions. The Romanian court found, at the time of granting conditional release, that there was sound evidence of rehabilitation. In 2009 X left Romania and came to the UK. The defendant ("the Home Secretary") granted him residence as a student here.
The present claim is concerned with challenges to certain of the actions taken in relation to X by the Home Secretary in 2015, after X had been in this country for some years. It also challenges the powers under which the Home Secretary took the actions that are challenged in these proceedings, and the Home Secretary's policies as to how those powers should be exercised.
The action taken by the Home Secretary against X has resulted in two sets of proceedings. I describe them in sections A1.2 and A 1.3 below.
A1.2 First proceedings: appeal to the FTT against deportation
The first set of proceedings took the form of an appeal to the First-tier Tribunal ("FTT") against a decision by the Home Secretary to deport X. The appeal was lodged on 6 May 2015, at a time when X was held in detention at an Immigration Removal Centre ("IRC"). X was granted bail by the FTT on 21 July 2015. He was accordingly released from detention on 23 July 2015.
X's appeal was allowed by the FTT in a determination promulgated in January this year. An application to the FTT by the Home Secretary for permission to appeal was refused by the FTT and, on renewal, by the Upper Tribunal.
A1.3 Second proceedings: the present judicial review claim
The second set of proceedings took the form of the present application for judicial review. By way of ancillary relief, an urgent interim order was sought by X so as to prevent his removal from the United Kingdom prior to the hearing of his appeal. In response to that application a stay on removal was granted by Ouseley J on 14 May 2015. A judicial review claim form issued that day, under the heading "Details of the decision to be judicially reviewed", identified three matters of which complaint was made.
A2. The judicial review claim in more detail
A2.1 X's matters of complaint and grounds for judicial review
I set out below X's three matters of complaint, along with a brief summary of the general nature of the complaint as described in a document settled by Ms Leonie Hirst of counsel and entitled "Grounds in support of the claim" ("X's grounds"):
(1) X's "ongoing detention since 23 March 2015 (verbal decision)". It was said in X's grounds that he was detained on 23 March 2015, apparently under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). X's grounds complained that his detention infringed the principles of both European Union law and domestic law.
(2) A decision by the Home Secretary under regulation 24AA of the EEA Regulations that X should be removed from the United Kingdom despite his entitlement to appeal against the decision to deport him, and to certify that removal under regulation 24AA(2). The decision was identified in X's grounds as having been taken on 23 April 2015. What was certified was that X's removal to Romania, despite the deportation appeal process not having begun, would not be unlawful under section 6 of the Human Rights Act 1998. It was said on behalf of X that removal would breach section 6 because there was a real risk of serious irreversible harm if he were removed to Romania. It was also said that certification was contrary both to European Union law and to principles of domestic law.
(3) The third "decision" identified comprised regulation 24AA itself and associated guidance. The assertion made in X's grounds was that regulation 24AA, along with the Home Secretary's "certification policy and practice", were unlawful as contrary to European Union law.
The provisions of EU law relied upon by X included Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. I shall refer to it as the " Citizens Directive".
The final section of X's grounds dealt with the remedies that he sought. His application for interim relief included a claim for an order that he be released from detention. Ouseley J declined to make an order in that regard, observing that this would not be appropriate in the absence of notice to the Home Secretary. In addition to the claim to release, X's grounds identified further remedies that were sought, including:
(1) an order quashing the certification decision of 23 April 2015;
(2) a declaration that X had been unlawfully detained since 23 March 2015; and
(3) damages, including aggravated damages.
A2.2 Acknowledgement of service & permission to proceed
An acknowledgement of service was filed on 4 June 2015. It was accompanied by summary grounds of defence. The matter came before Ms Philippa Whipple QC, sitting as a deputy judge of the High Court, for consideration on the papers. By an order dated 18 June 2015 she granted permission to proceed and directed expedition. As regards interim relief, her order, in effect, continued the order of Ouseley J preventing removal...
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