R Yuri Mendes v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 15 August 2019 |
| Neutral Citation | [2019] EWHC 2233 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 August 2019 |
| Docket Number | Case No: CO/2561/2019 |
[2019] EWHC 2233 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Murray
Case No: CO/2561/2019
Mr Becket Bedford (instructed by Instalaw Solicitors Ltd) for the Claimant
Mr Paul Fisher (instructed by the Government Legal Department) for the Defendant
Hearing date: 11 July 2019
Approved Judgment
This is the renewal of an urgent application (N463) dated 2 July 2019 (“the Application”) by the claimant, Mr Yuri Mendes, for interim relief, seeking an order to prevent his removal from the United Kingdom by the defendant, the Secretary of State for the Home Department, on that day pursuant to a deportation order dated 17 September 2018 (“the Deportation Order”). Mr Mendes was at that time scheduled to be removed on flight TP1367, departing on that day from London Heathrow Airport (Terminal 2) to Lisbon. Lang J refused the application on 2 July 2019 on a review of the papers, for the following reasons:
“The Claimant has failed to identify arguable grounds for judicial review of the decision to remove, having regard to the deportation order made as long ago as September 2018 and the decision to certify. An ongoing appeal process is not a sufficient reason to defer removal, and as the decision letter explained, an application can be made for temporary re-entry for any hearing.”
Mr Mendes was deported to Lisbon on 2 July 2019 in accordance with deportation arrangements set out in a Notice of Deportation Arrangements dated 21 June 2019 (“the Removal Notice”) sent to Mr Mendes while he was in immigration detention at HMP Forest Bank. The Removal Notice read in relevant part as follows:
“The Secretary of State has directed that you be removed from the United Kingdom
by (ship/craft) TP1367
to country/territory Portugal (Lisbon 14.05)
on 02 July 2019
You must report to the Immigration Office at Heathrow TN2 for the 11.20am flight”
Mr Mendes and his legal advisers appear to have understood the notice to referring to a scheduled departure time from London Heathrow of 14:05 (see, for example, section 1 of the Application, para 13 of Mr Mendes's Detailed Statement of Facts and Grounds and para 7 of the witness statement dated 1 July 2019 of Mr Stuart Luke, a solicitor at Instalaw Solicitors Limited (“Instalaw”), Mr Mendes's solicitors). The scheduled departure time was, however, 11:20, as is clear from the last line quoted above. 14:05 was presumably the scheduled time of arrival of that flight in Lisbon. On 2 July 2019 the flight departed 25 minutes late at 11:45.
Given that Mr Mendes was successfully removed from the UK on 2 July 2019, the interim relief now sought on this renewal of the Application is for an order requiring the Secretary of State to facilitate his return to the United Kingdom by arranging or facilitating a flight for Mr Mendes from Portugal and his entry through United Kingdom border control.
This interim relief is sought in connection with Mr Mendes's application dated 2 July 2019 for permission to apply for judicial review (“the Principal Claim”), seeking to challenge the Secretary of State's decisions:
i) to certify under regulation 33 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) that his removal from the UK to Portugal would not be unlawful under section 6 of the Human Rights Act 1998 (“the Regulation 33 Certification”);
ii) to detain him under immigration legislation; and
iii) to remove him from the UK on a flight to Lisbon on 2 July 2019.
Background
Mr Mendes is a national of Portugal. He was born on 17 September 2000.
Mr Mendes came to the United Kingdom from Portugal with his mother and siblings. On his own account, he arrived in the UK in 2013, although the Secretary of State noted in her decision notice (ICD.4933) accompanying her letter to Mr Mendes dated 17 September 2018 informing him of her decision to deport him (“the Decision”) at paras 3 and 14 that his AssetPlus report stated that he arrived in the UK in 2014 (presumably self-reported).
As a European Union national, Mr Mendes would have entered the UK on the basis of his right of free movement within the EU. Accordingly, the position of the Secretary of State is that it is not known when Mr Mendes entered the UK, but she does not accept that he had gained a right of permanent residence before the date of the Deportation Order by virtue of five years' continuous residence under regulation 15(1) of the 2016 Regulations. Mr Mendes has reserved the right to run that argument on his out-of-time appeal to the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) in respect of the Deportation Order. He does not, however, rely on it in relation to the Application.
Mr Mendes's offending history
Between 21 November 2015, when Mr Mendes was 15 years old, and 6 March 2018, he was convicted on five occasions for 12 offences:
i) On 21 November 2015 he was convicted at Manchester and Salford Juvenile Court of possession of an article with a blade/sharp point on school premises. For that offence, on 26 November 2015, he was made subject to a 9-month referral order.
ii) On 7 July 2016 at Greater Manchester Juvenile Court, he was convicted of criminal damage and battery. For those offences, on 28 July 2016, he was given a 12-month youth rehabilitation order, with a supervision requirement and an electronically-monitored curfew requirement. He was also ordered to pay compensation of £250 and made subject to a 12-month restraining order.
iii) On 1 September 2016 at Greater Manchester Juvenile Court he was convicted of attempted robbery. For that offence, on 22 September 2016, he was made subject to an 18-month Detention and Training Order (“DTO”), which was subsequently varied on appeal to a 12-month DTO. He was also ordered to pay compensation of £250.
iv) On 12 June 2017 at Greater Manchester Juvenile Court he was convicted of failing to comply with the DTO resulting from his conviction on 1 September 2016. He was fined £30.
v) On 6 March 2018 at Greater Manchester Juvenile Court he was convicted of six counts of robbery and remanded in youth detention accommodation, until he was sentenced on 27 March 2018 to 12-month DTO.
Notice of liability to deport, the Deportation Order and immigration detention
On 16 August 2018, when he was 17 years old and in detention under the DTO imposed on 27 March 2018, Mr Mendes was served by the Secretary of State with a Notice of Liability to Deport, informing Mr Mendes that the Secretary of State intended to make a deportation order against him on grounds of public policy in accordance with regulation 23(6)(b) and regulation 27 of the 2016 Regulations.
On his own account, without the assistance of legal advice, Mr Mendes made representations to the Secretary of State as to why he should not be deported, which were received by the Secretary of State on 3 September 2018.
On 17 September 2018, Mr Mendes's 18th birthday, the Deportation Order was made, and Mr Mendes was sent a letter by the Secretary of State informing him of the Deportation Order, noting that consideration had been given to his representations of 3 September 2018 and enclosing a copy of the Decision, in which (at paras 8 to 54) the Secretary of State gave her reasons for rejecting those representations and for making the Deportation Order. In the Decision, the Secretary of State also:
i) (at paras 55 to 79) set out her analysis of Mr Mendes's rights under article 8 of the European Convention on Human Rights (ECHR) and concluded that his deportation would not breach the UK's obligations under article 8 of the ECHR because the public interest in deporting him outweighed his right to private and family life in the UK;
ii) (at paras 81 to 82) advised Mr Mendes of the possibility of voluntary departure from the UK;
iii) (at paras 83 to 85 and 108 to 109) advised Mr Mendes of his rights of appeal to the FTT under regulation 36 of the 2016 Regulations and under section 82 of the Nationality, Immigration and Asylum Act 2002, (at paras 110 and 122) advised him that if his circumstances changed so that he had new reasons or grounds for remaining in the UK, he should notify the Secretary of State as soon as reasonably practicable and (at para 121) advised him of the deadline for appeal, namely, 14 calendar days after service on him of the Decision;
iv) (at para 86) made the Regulation 33 Certification and (at paras 87 to 107) gave reasons for it;
v) (at paras 111 to 120) advised Mr Mendes of his right under regulation 41 of the 2016 Regulations to re-admission to the UK for the purposes of making submissions in person at any appeal hearing; and
vi) (at paras 123 to 128) advised Mr Mendes that if he did not leave the UK voluntarily within one calendar month of the date of service of the Decision his removal would be enforced, that the Deportation Order invalidated any leave to enter or remain in the UK, that he was prohibited from re-entering the UK while the Deportation Order is in force, that if he wished to seek legal advice he “must do so now” and that if he remained in the UK he would be doing so illegally and would be subject to further enforcement action.
Upon his release from detention under the DTO imposed on 27 March 2018 on 25 September 2018, Mr Mendes was taken into immigration detention.
On 19 November 2018 Mr Mendes applied for immigration bail, but on 30 November 2018 his bail application was refused. On 30 January 2019 Mr Mendes's immigration detention was reviewed by a Case Progression Panel, which recommended that detention be maintained.
Subsequent events
On 12 March 2019 the Secretary of State authorised Mr Mendes's...
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