The Queen (on the application of Szymon Byczek and Luis Miguel Oliveira) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Jay
Judgment Date19 December 2014
Neutral Citation[2014] EWHC 4298 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase Nos: CO/2669/2014 and CO/2707/2014
Date19 December 2014

[2014] EWHC 4298 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Jay

Case Nos: CO/2669/2014 and CO/2707/2014

Between:
The Queen (on the application of Szymon Byczek and Luis Miguel Oliveira)
Claimants
and
Secretary of State for the Home Department
Defendant

Ronan Toal (instructed by Wilsons Solicitors LLP) for the Claimants

Rory Dunlop (instructed by Treasury Solicitor) for the Defendant

Hearing date: 10 th December 2014

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 as handed down may be treated as authentic.

Mr Justice Jay Mr Justice Jay

Introduction

1

The issue in these linked applications for judicial review, as Mr Ronan Toal has helpfully encapsulated it, is whether the Immigration (European Economic Area) Regulations 2006 (S.I. 2006 No. 1003) ("The EEA Regulations") provide a lawful basis for denying the Claimants the rights they would have were they non-EEA citizens (i) to apply whilst in the United Kingdom for revocation of the deportation orders made against them, and (ii) to appeal whilst in the UK against the refusals to revoke the deportation orders.

2

Cranston J granted permission to both Claimants following a contested oral hearing, limited to the issue I have identified. He refused permission to apply for judicial review on other grounds, and he also refused the applications for a stay of consideration of those other grounds pending a decision of the Court of Appeal in BXS v SSHD [2014] EWHC 737 (Admin).

3

In order to differentiate between the two Claimants I will refer to them by name. However their precise factual circumstances matter very little, because the points for current determination raise narrowly-defined issues of statutory construction within an EU context.

Essential Factual Background: Luis Miguel Oliveira

4

Mr Oliveira, a national of Portugal, has been exercising Treaty rights in the UK for some years. He also has a lengthy history of criminal offending. On 16 th November 2011 the Defendant decided to remove him from the UK exercising powers under regulation 19(3)(b) of the EEA Regulations.

5

Mr Oliveira exercised his statutory appeal rights to the First-tier Tribunal and thereafter to the Upper Tribunal. On 14 th February 2014 the Court of Appeal dismissed his appeal: see LO (Portugal) v SSHD [2014] EWCA Div 199. The Upper Tribunal's conclusion, reversing that of the First-tier Tribunal, was held to be proportionate.

6

On 28 th February 2014 the Defendant signed a deportation order against Mr Oliveira. He then applied to have that revoked on the basis of what his solicitors characterised as a material change of circumstances, namely psychiatric or psychological evidence which purported to show that he was now at a low risk of re-offending. The Defendant refused to revoke her deportation order, and the reasonableness and/or proportionality of that decision does not arise as a free-standing issue in these proceedings, although it would arise in the event that Mr Oliveira could exercise an in-country right of appeal.

Essential Factual Background: Szymon Byczek

7

Mr Byczek, a national of Poland, has been exercising Treaty rights in the UK since 2006. In September 2011 he was convicted at Truro Crown Court of robbery, and was sentenced to 3 years' imprisonment. On 11 th July 2012 the Defendant made a decision to remove Mr Byczek from the UK under regulation 19(3)(b). Like Mr Oliveira, Mr Byczek exercised his statutory appeal rights, but these have now become exhausted.

8

On 15 th May 2013 the Defendant signed a deportation order against Mr Byczek. On 16 th May 2014 he applied to revoke it. On 30 th May 2014 the Defendant informed Mr Byczek that his application was invalid, because it could only be made from outside the United Kingdom; but she went on nonetheless to consider its merits. The Defendant concluded that Mr Byczek remained a genuine, present and sufficiently serious threat to the public as to justify his deportation. The lawfulness of that decision cannot be challenged on an autonomous judicial review basis in these proceedings, but – as in the case of Mr Oliveira – it could be on an in-country statutory appeal.

The Legal Framework

9

The deportation of persons who are not British citizens is covered by the familiar provisions of the Immigration Act 1971, in particular sections 3 and 5, and Schedule 3. Specifically, (i) any person who is not a British citizen is liable to deportation if the Defendant deems his deportation to be conducive to the public good (section 3(5)(a)), (ii) the Defendant has power to make a deportation order against such a person (section 5(1)), (iii) the Defendant also has power to revoke such an order (section 5(2)), and (iv) the Defendant has a range of coercive, administrative powers relating to matters such as detention and removal (Schedule 3).

10

Taking the cases of non-British citizens in respect of whom the Defendant has refused to revoke a deportation order, such persons enjoy rights of appeal to the extent set out in sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002.

11

Specifically, section 82(2)(k) provides:

"(2) In this Part "immigration decision" means:

(k) refusal to revoke a deportation order under section 5(2) of [the Immigration Act 1971]."

12

The effect of section 92 is that such decisions are not appealable from within the United Kingdom unless sub-section (4) applies. This provides:

"This section also applies to an appeal against an immigration decision if the appellant –

(a) has also made an asylum, or a human rights claim, whilst in the United Kingdom, or

(b) is an EEA national … and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."

13

Mr Toal relies on both limbs of section 92(4). In relation to paragraph (b), he submits that this sub-section is apt to apply to the Claimants' cases because the Defendant's refusal to revoke her deportation orders bears on their right to reside in the UK. It follows says Mr Toal, and I would tend to agree, that if the Claimants have appeal rights under the 2002 Act, these would be exercisable from within the jurisdiction.

14

Section 109 of the 2002 Act provides:—

" European Union and European Economic Area

(1) Regulations may provide for, or make provision about, an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the [EU] Treaties.

(2) The Regulations may –

(a) apply a provision of this Act or the Special Immigration Appeals Commission Act 1997 with or without modification;

(b) make provision similar to a provision made by or under this Act or that Act;

(c) disapply or modify the effects of a provision of this Act or that Act.

(3) in subsection (1) "Immigration Decision" means a decision about –

(a) a person's entitlement to enter or remain in the United Kingdom, or

(b) removal of a person from the United Kingdom."

15

The regime governing the deportation of those who are exercising EU Treaty rights, e.g. these Claimants, is somewhat more complex, although it dovetails to some extent with what I have called the familiar provisions of the 1971 Act. I propose to summarise the position in the following manner.

16

Pursuant to Article 21(1) of the Treaty on the Functioning of the EU ("the Treaty"):-

"Every citizen of the Union shall have the right to move and reside freely within the territories of Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."

17

By Article 45(3) of the Treaty, these freedom of movement rights are "subject to limitations justified on grounds of public policy, public security or public health". The second category – "public security" – is the most germane to the instant cases, but "public policy" might well also apply. Further, Article 27 of the Citizenship Directive (Directive 204/38/EC) permits Member States to restrict the free movement and residence of other EEA nationals on grounds of public policy, public security and public health.

18

Thus, as a matter of EU law, a Member State is permitted to expel nationals of other Member States enjoying Treaty rights in the expelling State, but the relevant EU provisions do not provide the legal machinery for effectuating such expulsion. That machinery is to be found in the relevant domestic law provisions: in particular, the EEA Regulations, and/or any other provisions to which those Regulations refer or relate.

19

The EEA Regulations were made under section 2(2) of the European Communities Act 1972 and section 109 of the 2002 Act. Section 2(2) provides:-

"Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or Department may by order, rules, regulations or scheme make provision –

(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;

and in the exercise of any statutory power or duty, including any power to give directions...

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