R Yuri Mendes v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Peter Jackson,Lord Justice Underhill |
| Judgment Date | 17 July 2020 |
| Neutral Citation | [2020] EWCA Civ 924 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2019/2146 |
| Date | 17 July 2020 |
[2020] EWCA Civ 924
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
THE HON MR JUSTICE MURRAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Hickinbottom
and
Lord Justice Peter Jackson
Case No: C9/2019/2146
and
Becket Bedford and Natasha Jackson (instructed by Instalaw Solicitors Limited) for the Appellant
David Blundell QC and Julia Smyth (instructed by Government Legal Department) for the Respondent
Simon Cox, Bojana Asanovic and Agata Patyna (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener
Hearing date: 13 July 2020
Approved Judgment
Introduction
This is an appeal against the Order of Murray J dated 15 August 2019 refusing interim relief in the form of a mandatory order requiring the Secretary of State to facilitate the return of the Appellant to the United Kingdom in the context of a judicial review challenging a decision of the Secretary of State dated 17 September 2018 to certify under regulation 33 of the Immigration (European Economic Area) Regulations 2016 (SI 2016 No 1052) (“the EEA Regulations”) that his removal to Portugal pending the outcome of an appeal against a deportation decision would not be in breach of his human rights. Murray J's judgment is reported as [2019] EWHC 2233 (Admin).
Pursuant to my Order of 12 May 2020, this is a rolled-up hearing of the Appellant's application for permission to appeal and, if granted, the substantive appeal.
Before us, Becket Bedford and Natasha Jackson appeared for the Appellant; David Blundell QC and Julia Smyth for the Secretary of State; and Simon Cox, Bojana Asanovic and Agata Patyna for the Intervener. At the outset, I thank them all for their contribution.
At the end of the hearing, the court indicated that it would grant permission to appeal, allow the appeal, quash the order of Murray J refusing the application for interim relief, and remit the application to the Administrative Court for re-consideration and re-determination; and would give its reasons for so doing in a later reserved judgment. These are my reasons for considering that to be the appropriate order.
The Law
Freedom of movement is a fundamental right of European Union citizens, as reflected in the European Parliament and Council Directive 2004/38/EC of 29 April 2004 about the right of citizens of the Union and their family members to move and reside freely within the territory of the EU and EEA Member States (“the Directive”).
However, the right is not absolute. Article 27(1) and (2) of the Directive provide:
“1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”
Where that provision is invoked, article 28 nevertheless provides for “Protection from expulsion”:
“1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”
Articles 30 and 31 deal with relevant procedural matters, as follows:
“ Article 30
Notification of decisions
1. The persons concerned shall be notified in writing of any decision taken under article 27(1), in such a way that they are able to comprehend its content and the implications for them.
2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of state security
3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification.
Article 31
Procedural safeguards
1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.
2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except:
– where the expulsion decision is based on a previous judicial decision; or
– where the persons concerned have had previous access to judicial review; or
– where the expulsion decision is based on imperative grounds of public security under article 28(3).
3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in article 28.
4. 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.”
Therefore, an appeal against an expulsion decision does not have automatic suspensory effect: but, where there is an application for an interim order, then generally removal cannot be effected unless and until that application has been determined.
The EEA Regulations give effect to the Directive in the UK. Reflecting article 27, regulation 23(6)(b) provides (so far as relevant to this appeal):
“… [A]n EEA national who has entered the United Kingdom… may be removed if… the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 27…”.
Regulation 27 sets out various criteria which apply to “Decisions taken on grounds of public policy, public security and public health”, including at subsection (5):
“The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.”
When read together, regulations 23(6)(b) and 27 thus require an EU proportionality exercise, i.e. an assessment of whether the adverse impact to an EU citizen of his or her removal is proportionate when compared with the adverse impact to the public interest that his or her remaining in the United Kingdom would have with regard to public policy, public security and public...
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