The Queen (on the application of Marius-Costel Costea) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 24 June 2021 |
| Neutral Citation | [2021] EWHC 1685 (Admin) |
| Docket Number | Case No: CO/4365/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 June 2021 |
[2021] EWHC 1685 (Admin)
Mr Justice Griffiths
Case No: CO/4365/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Becket Bedford (instructed by Instalaw Solicitors) for the Claimant
Robin Tam QC and William Irwin (instructed by the Government Legal Department) for the Defendant
Hearing date: 15 June 2021
Approved Judgment
The Honourable
The claimant is a Romanian national and, therefore, a national of a member state of the European Union. He challenges a decision to remove him on a flight to Romania (which was suspended pending these proceedings) and a decision to detain him, by a Claim Form apparently issued on 24 November 2020. His grounds, however, refer back to service of a Deportation Liability Notice (“DLN”) dated 4 August 2020.
The claimant argues that this DLN was unlawful and, from that, argues that the unlawfulness of the DLN renders all subsequent proceedings by the Secretary of State unlawful, including the decision to deport on 25 August 2020, and his detention pending deportation between 25 August and 3 October 2020 (when he was granted bail). He does not challenge his deportation or detention on any other grounds. This is the only ground for which he has been given permission to apply for judicial review.
The Secretary of State has decided not to insist on time points on this application. Consequently, the parties agree that the application raises the following two key issues:-
i) Whether the DLN was a “measure” within the meaning of Article 27 of Directive 2004/38/EC (the Free Movement Directive).
ii) If so, whether the DLN complied with the requirements of Article 30 of the Free Movement Directive.
In relation to the first of these issues, the claimant has also raised the following issues:-
i) Whether the start of deportation proceedings is of any relevance in determining whether any particular step in those proceedings is a “measure” within the meaning of Article 27 of the Free Movement Directive.
ii) If so, whether a DLN is the start of deportation proceedings.
iii) Whether a DLN allows the detention of the individual to whom it relates and, if so, whether that has any relevance to whether a DLN is a “measure” within the meaning of Article 27 of the Free Movement Directive.
Background facts
The claimant was born in Romania in 1987 and is now 33 years old.
Criminal record in Romania and the UK
On 15 December 2006 (aged 19) he was convicted of theft and sentenced in Romania to 22 months imprisonment suspended for 34 months.
On 15 January 2007, he was convicted of two counts of immigration offences and sentenced in Romania to 4 months imprisonment suspended for 2 years 4 months.
On 17 September 2007, he was convicted at West London Magistrates Court of shoplifting and going equipped for theft. He was given an absolute discharge.
On 29 November 2007, he was convicted at Horseferry Road Magistrates Court of going equipped for theft and using a vehicle whilst uninsured. He was sentenced to 12 weeks in a Young Offender Institution and a fine of £100 fine or 1 day (time served). He was disqualified from driving for 6 months and his licence was endorsed.
On 29 January 2008, he was convicted in Romania of inflicting grievous bodily harm and was sentenced to 3 years imprisonment suspended for 5 years.
20 October 2008, he was convicted at Thames Magistrates Court of breaching his Young Offender Institution supervision order and sentenced to a fine of £75.
On 23 May 2014, he was convicted in Romania of causing or inciting prostitution or pornography involving a child aged 13 to 17. He was sentenced to 2 years imprisonment. This was subsequently varied (apparently on appeal), on 17 October 2014, to 5 years imprisonment and a restraining order for 2 years.
On 23 October 2015, he was convicted in Romania of driving with excess alcohol and sentenced to 1 year of imprisonment. This was varied on 5 April 2016 to 5 years 4 months imprisonment and a restraining order for 2 years.
On 8 July 2018, he accepted a caution from the Metropolitan Police for possession of Class B controlled drugs.
A movement trace from the UK Border Force shows the claimant arriving in the UK on 9 August 2019.
On 13 March 2020 the claimant came to the attention of the Metropolitan Police on suspicion of damage to property. However, no further action was taken.
On 2 June 2020, the claimant was assessed as suitable for deportation action by David Jones (a Home Office Executive Officer in the Foreign Convictions Team), based on his foreign convictions, following a referral from ACRO Criminal Records Office (the police unit which manages criminal records nationally). Mr Jones' witness statement says that, on that day, “I formed the view that the claimant met the Secretary of State's criteria for deportation action”.
Consequently, when the claimant was arrested on 19 June 2020, and again on 4 August 2020, “the special conditions flag meant that the Foreign Convictions Team was informed of these events” (Jones 1 para 7).
On 4 August 2020 the claimant was arrested by Metropolitan Police on suspicion of committing actual bodily harm against his partner. No further action was taken in relation to this. However, “the Claimant was detained under immigration powers as detention in pursuance of deportation was assessed as appropriate at that time” (Jones 1 para 7).
Prior to his detention on that day (4 August 2020), the claimant was served with the DLN.
The DLN
The DLN was part of a suite of paperwork served on the claimant, divided into five as follows.
(1) Part 1 – Deportation Liability Notice
Only Part 1 was described in the header as “Deportation liability notice”. This was a 3-page document signed by David Jones, “acting on behalf of the Secretary of State”. It was headed “Notice that you may be liable to deportation pursuant to the Immigration (European Economic Area) Regulations 2016.”
It stated as follows (all bold type in the original):
“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”).
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 Romania. 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.
Current Immigration Status
I have considered all the information available to me and I am satisfied that you are either an EEA national, a family member of an EEA national, an extended family member of an EEA national or have a derivative right under the EEA Regulations 2016. As such the decision whether to deport you will be considered under the EEA Regulations 2016.
Reasons for considering that you may be liable to deportation
We consider your deportation may be justified on grounds of public policy, public security and public health under the EEA Regulations 2016 because on 17 October 2014 at The Oradea Court of appeal, you were convicted of Cause/Incite prostitution of/pornography involving a child 13 – 17 for which you were sentenced to Imprisonment 5 years 4 months.
We also consider your deportation may be justified on grounds because between 2006 and 2018 you have been convicted of 11 offences in Romania and in the United Kingdom.
[Here, the claimant's offending history in Romania and the UK between 12 October 2015 and his caution on 8 July 2018 was set out].
As set out in Schedule 1 to the EEA Regulations 2016 removing an EEA national or their family member with a criminal conviction, protecting the public and combating the effects of persistent offending are considered to be in the fundamental interests of society in the UK. Therefore, as a result of your behaviour a deportation decision may be made against you under regulation 23(6)(b) in accordance with regulation 27.
Next steps
The Home Office will not make a deportation decision 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.
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 this date.
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, you should sign...
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Selevicius v SSHD
...Court's attention to two recent cases. He referred to R (Costea) v Secretary of State for the Home Department [2021] EWC 1685 (Admin) [2021] 1 WLR 5223 a decision of Mr Justice Griffiths. In that case Mr Bedford had also argued that the DLN was a “ measure” within the Directive, and that t......