Selevicius v SSHD
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 28 November 2022 |
| Neutral Citation | [2022] EWHC 3022 (Admin) |
| Docket Number | Case No: CO/2826/2021 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 3022 (Admin)
THE HONOURABLE Mrs Justice Foster DBE
Case No: CO/2826/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Becket Bedford (instructed by InstaLaw Limited) for the Claimant
Mr Thomas Roe KC and Mr James Fraczyk (instructed by Government Legal Department) for the Defendant
Hearing dates: 27 and 28 April 2022
Approved Judgment
This judgment was handed down remotely at 3.00pm on 28 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
INTRODUCTION
This is an application for judicial review brought by the Claimant, a Lithuanian national, who challenges certain decisions by the Secretary of State for the Home Department (“SSHD”) pertaining to his intended removal from the United Kingdom on public interest grounds.
He seeks to challenge the issue to him of a Deportation Liability Notice (“DLN”) and also the SSHD's certification to the effect that, notwithstanding his claimed rights arising under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) (such as still apply), he should nonetheless be removed from the UK pending appeal. He also argues that failures in respect of the DLN taint his subsequent detention.
A number of variations on the grounds have been propounded from time to time but the permission was expressly limited as follows:
“ Permission is granted to the Claimant to apply for judicial review, limited to the following grounds:
a. the Defendant's decision to detain the Claimant, dated 17 June 2021, was unlawful because the deportation proceedings to which it related had been incorrectly instituted, contrary to Article 30 of Directive 2004/38/EC, and, in any event, it was disproportionate, contrary to Article 27(2) of that Directive; and
b. the Defendant's decision, dated 14 July 2021, to certify the Claimant's removal under regulation 33 of the Immigration (Economic Area) Regulations 2016 (SI 2016/1052) was disproportionate by reference to EU standards.”
BACKGROUND
The Claimant is a national of Lithuania, it is unclear when he arrived in the United Kingdom, but likely between May and August 2019. He first came to the attention of the Home Office on his application for leave to remain under the European Settlement Scheme then in operation. He was granted Limited Leave To Remain (“LLTR”) on 3 October 2019.
Between 2019–2021 he was arrested in the UK for various potential offences relating to domestic abuse and although arrests were made charges were not preferred in respect of any of the occasions. Following arrest on 12 April 2021, a criminal record check in Lithuania was carried out and this revealed that the Claimant had a number of convictions in Lithuania which he had not disclosed when making his application for LTR. On 22 March 2012 (that is to say, when he was about 15 years of age) the Claimant was convicted of two counts of sexual assault by penetration and one count of sexual assault with no penetration of a girl of 10 years for which he was sentenced to 2 years 7 months imprisonment all of which was suspended. On 15 June 2015 the Claimant was convicted of robbery at Vilnius City District Court in Lithuania and sentenced to 5 years' imprisonment.
Between early May 2021 and 17 June 2021 consideration was given to the deportation of the Claimant and to his detention pending deportation. It was concluded that the Claimant posed a high risk of absconding, of harm and of reoffending. The Secretary of State's view in early May was that detention was appropriate to facilitate removal. The grounds included the threat that Mr Selevicius posed to the UK public and more immediately to his partner and children based on her view they were serious offences overseas, and the arrests for domestic violence suggested a pattern of sexual violence and violence towards women. There was no indication he sought to address the behaviour or sought help. Furthermore, he had obtained LTR on the basis of a failure to disclose his convictions. It was deemed appropriate to serve a DLN at the time of detention.
Material available to the Defendant from Lincolnshire Children's Services following the police referral in respect of domestic abuse revealed the children were subject to a Child in Need Plan because of the abuse. A referral dated 9 April 2021 reported that the Claimant had pushed his partner downstairs and beaten her. The children and members of the public had reported their concerns to the police even though the Claimant's partner was unwilling to engage. It was reported to the SSHD the domestic abuse was escalating, and had been under-reported.
The DLN, completed on 2 June 2021, was served on 17 June 2021. A Deportation Order was served on 14 July 2021.
On 7 April 2022 the Claimant made an application long out of time to appeal against the decision to deport him made on 14 July 2021 1.
Put shortly, Mr Bedford on behalf of the Claimant says the Court should treat all of the Claimant's detention, between the dates of 17 June 2021 and 2 September 2021 (following a favourable bail decision on 1 September 2021) as unlawful and quash any Deportation Order removal directions because of fatal defects in the DLN which failed to contain material information.
The DLN indicated as follows:
“ NOTICE THAT YOU MAY BE LIABLE TO DEPORTATION PURSUANT TO THE IMMIGRATION (EUROPEAN ECONOMIC AREA) REGULATIONS 2016
…
This notice informs you that the Home Office is considering whether to make a deportation decision against you in accordance with the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”), as saved.
What this means for you
This means that if the Home Office decides to make a deportation decision against you, you will be served a deportation order and removed from the UK to Lithuania. The deportation order will prohibit you from re-entering the UK indefinitely or for the period specified in the order unless you successfully apply to have it revoked.
As there are reasonable grounds to suspect that you are someone who may be deported from the UK under the EEA Regulations 2016, then you may be detained in immigration detention pending the deportation decision in accordance with Regulation 32(1) of the EEA Regulations 2016, as saved.
You may also be detained under section 36 of the UK Borders Act 2007 pending the making of a deportation order against you.”
There followed a section dealing with the current immigration status of the Claimant. It referred to the uncertainty of the arrival date, the application under the EU Settlement Scheme on 30 August 2019 and the grant of limited leave, stating that, following arrest on suspicion of assault causing actual bodily harm, a criminal record check was undertaken and revealed the convictions set out above. The DLN stated that the draftsman was satisfied that the Claimant was a person who had been granted entry clearance under the Appendix EU (Family Permit) provisions within the rules and was satisfied that the Claimant may be liable to deportation under public policy grounds under the EEA Regulations because of the convictions. It referred to protecting the public and combating the effects of persistent offending per Schedule 1 to the EEA Regulations.
The next part of the document said (relevantly) this:
“ Next steps
The Home Office will not make a deportation decision on public policy … grounds against you based on your criminal conduct alone and will consider any information or evidence you provide to ensure that the decision is in accordance with the principles set out in regulation 27/regulation 18.
You must inform the Home Office of any reasons why you should not be deported from the UK. Part 3 of this notice explains what information and evidence you may wish to submit. Any information you wish to provide must reach the Home Office before the deadline stated below, failure to meet this deadline may mean that the information will not be considered as part of the deportation decision.
You will not have another opportunity to tell us why you should not be deported before a deportation decision is made so you must ensure that you provide any relevant information before the deadline below.
Consideration will be given to any evidence and information you provide as part of the decision whether to deport you. If you do not provide the Home Office with any information as to why you should not be deported, we will make a decision using the information available to us. We will inform you in due course whether or not the Home Office has decided to deport you.
If you do not wish to raise any objections against a deportation decision being made against you and wish to leave the UK then you should sign the disclaimer in part 4 of this notice and send it to the address overleaf.
Appeal
There is no right of appeal against a notice that you may be liable to deportation under the EEA Regulations 2016, as saved, or pursuant to the Immigration Act 1971.”
The Claimant made representations on 28 June 2021. They appear to have been served on the Defendant with the purpose of supporting a bail application as well as by reference to the proposed deportation. They were representations on the merits expressing his desire to stay in the UK with his young family, an 18-month old, his child, and a nine and six year old, from an earlier relationship of his partner. These representations were within the ten day deadline for receiving representations on proposed deportation, for which time expired on 30 June 2021.
On 9 July 2021 a decision was...
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