The Queen (on the application of Ali Hafeez) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster |
| Judgment Date | 28 February 2020 |
| Neutral Citation | [2020] EWHC 437 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/129/2018 |
| Date | 28 February 2020 |
[2020] EWHC 437 (Admin)
Mrs Justice Foster DBE
Case No: CO/129/2018
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Drabble QC and Leonie Hirst (instructed by Wilson Solicitors LLP) for the Claimant
Mr David Blundell and Julia Smyth (instructed by Government Legal Department) for the Defendant
Bojana Asanovic (instructed by AIRE Centre Intervenor (written submissions only))
Hearing dates: 9 October 2019
Judgment Approved by the court for handing down
INTRODUCTION
The Claimant who was born on 21 July 1995, in Detmold, Germany, came to the United Kingdom aged about 10 with his family where he has lived ever since. As an EEA national he is subject to the provisions of the Immigration (Economic Area) Regulations 2016 S.I. 2016/1052 (“the Regulations”) which derive from Directive 2004/38/EC (“the Citizens' Directive” or “the Directive”).
The question raised in this case is whether, when certifying under Regulation 33 of the Regulations that the Claimant was to be removed under a Deportation Order before the conclusion of his appeal against removal, the Secretary of State (“the SSHD”) was obliged to apply a test which included individualised tests of proportionality and necessity.
The essence of the Claimant's submission is that because the certification of the Claimant's case under Regulation 33 was decided by applying a purely Human Rights Act compliant test, together with consideration of whether the Claimant would face a serious risk of irreversible prejudice if removed at that point, it was unlawful in that it did not reflect the full extent of EU law protection to a person in the Claimant's position.
Permission was granted on 24 August 2018 on paper on amended grounds which challenged the legality of Regulation 33 and the SSHD's policy guidance.
BACKGROUND
The Claimant has a short but disturbing offending history. At the age of 17 on 22 March 2013, he was convicted of theft from a motor vehicle for which he received a conditional discharge on 27 October 2014. He was convicted of one count of dangerous driving committed on 27 February 2014 for which a twelve month consecutive sentence was received and two counts of rape committed on 8 June 2013 for which he received a six-year concurrent sentence and the requirement for indefinite registration on the sex offenders' register. The circumstances of the rapes, not relevant to this application, were highly unpleasant and he was described by the trial judge as sophisticated and cunning but without empathy, insight or understanding. There was a further count of robbery committed on 8 June 2013 for which he received a three year concurrent sentence. He was sentenced to a total of seven years' imprisonment and released from the custodial part of his sentence on 4 January 2018 and thereafter released on immigration bail on 31 January 2018. His licence expires on 15 June 2021.
On 16 May 2016 the Claimant was notified that he was liable for deportation and on 8 December 2017, after representations, he was served with a deportation decision and a Deportation Order. The SSHD stated that Regulation 23(6)(b) of the Regulations applied to the effect that his removal was “justified on grounds of public policy, public health or public security in accordance with Regulation 33”. When deciding whether or not to make the deportation decision the SSHD was, she accepts, obliged to apply her mind to the particular circumstances of Mr Hafeez, by reason of his status as an EEA national.
Included with the reasons for deportation was a separate decision dated 8 December 2017 certifying the Claimant's removal under Regulation 33 which allowed for his removal from the United Kingdom pending his appeal hearing. That decision was not reached by taking into account in the full manner which Mr Drabble QC argues is necessary, the particular personal circumstances of Mr Hafeez, and the SSHD says she was not obliged to do so. The substance of the Certification Decision is no longer challenged but the lawfulness of the domestic Regulations under which the Certification Decision was made is the subject of this application.
The Regulations were brought into force to give effect to the Directive, and the Claimant contends that they fail to do so correctly in that the Regulations do not recognise that the certification of the Claimant's case under Regulation 33 is a decision as described by Regulation 27 and so attracts the protections afforded by that provision because it is a measure that restricts freedom of movement.
Regulation 27 was mentioned expressly in connection with the first decision, namely that under Regulation 23(6)(b) concerning the expulsion order itself. The SSHD accepts that when making a deportation decision she must base her decision not on a general policy in respect of deportees, but rather on the personal conduct of the person concerned and apply an individualised proportionality test.
THE ISSUE
The Claimant makes the relatively short point that, properly understood, a decision to certify the removal of an EU citizen pending an appeal is a decision restricting freedom of movement on grounds of public policy, public security or public health as described in Article 27 of the Directive. As such, as a matter of pure construction, the safeguards set out in Article 27(1) and 27(2) of the Directive apply.
The SSHD argues that whilst Article 27 applies to the decision to make a Deportation Order, it does not apply to the decision to certify that a deportee may be removed pending appeal under Regulation 33, and also relies upon the construction of the wording of the Directive to support her case.
The AIRE (Advice on Individual Rights in Europe) Centre have been granted permission to intervene by way of written submissions. They support the Claimant's case.
LEGAL FRAMEWORK
The Directive
EEA nationals enjoy enhanced rights of residency and free movement. A statement of the fundamental differences in the rights of EEA Citizens in this context is provided by the overview given by Lord Clarke in R (on the application of) Nouazli v SSHD [2016] UKSC 16; [2016] 1 WLR 1565:
“19. …. There are UK immigration controls relating to (a) entry, (b) restrictions on removal and (c) detention, although this appeal is directly concerned only with detention. At each point there are important differences between the rules which apply to those exercising rights of free movement derived from laws applying to the European Economic Area, which I will call EU law rights, namely EEA nationals and their family members, and those who are not exercising such rights.
20. As to controls on entry, for a non-British citizen not exercising EU law rights, the regime which confers leave to enter and remain in the United Kingdom is governed by the Immigration Act 1971 …
21. By contrast, those exercising EU law rights are not subject to the above regime. They enjoy extensive additional rights, no doubt as a means of promoting the internal market, including the market for labour, as given effect in UK law. By section 7(1) of the Immigration Act 1988, people with directly effective EU rights to enter or remain in the UK, or who enjoy such rights by virtue of any provision made under section 2(2) of the European Communities Act 1972, do not require leave to enter or remain.
“30. It is correctly accepted on behalf of the SSHD that, in contrast to the position described above, those exercising EU rights do not require leave to enter or remain and have the benefit of powerful protections against their expulsion from the UK. The ability of member states to restrict the Treaty rights described above is limited by Chapter VI of the Directive, which is entitled
“RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH”
and comprises articles 27 to 33.
…
“31. It is clear that EEA residents who fall within the scope of the Directive enjoy powerful rights of residence far beyond those afforded by domestic law. As appears above, the Directive applies three different escalating threshold tests for restriction on rights of free movement as follows. In the case of a person such as the appellant with the right of permanent residence, an expulsion decision must be based on “serious grounds of public policy or public security”: article 28(2).
…”
Under an amendment to Section 2 (2) of the European Communities Act 1972 there is power to lay regulations in order to give effect to community law and effect to the European Economic Area Agreement. This allows the SSHD to lay secondary legislation before Parliament governing admission to the United Kingdom of EU and EEA Citizens. The Regulations, and their predecessors were made in order to give effect to Directive 2004/38/EC, often referred to as the Citizenship Directive, which governs free movement and the residence rights of EU and EEA nationals in the United Kingdom.
Assistance on the context may be had from a further passage in the judgment of Lord Clarke in Nouazli, discussing the previous version of the Regulations:
“22. Critical to the construction of the EEA Regulations 2006, including of course regulation 24(1), is the true meaning and effect of the Directive, which consolidates and extends the rights granted by pre-existing secondary legislation and reflects established CJEU case-law. Further, it applies to all of the countries in the EEA.
23. It appears to me that the recitals are of some assistance. Moore-Bick LJ drew attention (at para 6) to the following recitals:
“Whereas
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