Yuri Mendes v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 25 January 2021 |
| Neutral Citation | [2021] EWHC 115 (Admin) |
| Docket Number | Case No: CO/2561/2019 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the application of
and
[2021] EWHC 115 (Admin)
Mr Justice Freedman
Case No: CO/2561/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Becket Bedford and Mark Bradshaw (instructed by Instalaw Solicitors Limited) for the Claimant
David Blundell QC and Julia Smyth (instructed by Government Legal Department) for the Defendant
Simon Cox and Bojana Asanovic (instructed by Freshfields Bruckhaus Deringer LLP) for the Intervener
Hearing dates: 8 & 9 December 2020
Approved Judgment
| SECTION NUMBER | SUBJECT | PARAGRAPH NUMBER |
| I | Contents | |
| II | Introduction | 1–6 |
| III | The facts | |
| a) The Claimant | 7–11 | |
| b) Notice of liability to deport | 12–16 | |
| c) Events following notice of liability to deport | 17–20 | |
| d) Deportation order | 21 | |
| e) Events after deportation | 22–36 | |
| f) The appeal | 37–38 | |
| g) Judicial review and removal | 39–42 | |
| h) Judicial review and application to return to the UK | 43–52 | |
| i) Events since the Court of Appeal hearing | ||
| a) The CD2 | 53–64 | |
| b) Further statements of the Claimant dated 19 October 2020 | 65 | |
| c) The decision of the FTT to extend time for the Notice of Appeal | 66–67 | |
| IV | The legal framework | 68 |
| a) Deportation — general | 69–71 | |
| b) The Citizens' Free Movement Directive: procedural protection | 72–74 | |
| 70 | ||
| V | Should the notice of liability to deport (the DLN) be set aside? | |
| a) Introduction | 77 | |
| b) The Source of the DLN | 78–80 | |
| c) The factual inquiry | 81–87 | |
| d) Was the DLN defective without more? | 88 | |
| e) Was the DLN in effect a notice of deportation? | 89–90 | |
| f) Was the DLN defective because it allowed for a decision to deport prior to the Claimant becoming an adult? | 91 | |
| g) Was the DLN defective because its language led to the possibility of administrative detention against the Claimant before he was 18? | 92 | |
| h) Was the DLN issued in bad faith with no intention to give an opportunity to state his case? | 93 | |
| i) Was the Claimant entitled to legal representation at the point of service of the DLN? | 94–99 | |
| j) The opportunity to make representations, the DLN and the decision to deport | 100–115 | |
| VI | The overlap between the judicial review claim and the FTT appeal | 116–122 |
| VII | Events after the decision to deport/deportation notice | 123 |
| (1) The certification | 124–126 | |
| (2) The Claimant's removal | 127 | |
| (3) Damages for detention and/or removal | 128–129 | |
| VIII | Mandatory injunction pending the statutory appeal requiring return/facilitation of return of the Claimant to the UK | 130–152 |
| IX | The roadmaps | 153 |
| a) Consideration of the roadmap of the Secretary of State | 154–186 | |
| (b) Consideration of the roadmap of the Claimant | 187–196 | |
| X | Conclusions | 197–206 |
II Introduction
This is a case with a complicated procedural history. The Claimant, who is a national of Portugal, was deported to Portugal on 2 July 2019 following a decision to deport him and a deportation order made on 17 September 2018. He was at that time coming to the release date of a sentence of detention in a young offenders' institution (“YOI”) for 6 counts of robbery. The date of the decision was his 18 th birthday. About a month before his 18 th birthday, the Claimant was served with a notice of liability to deport (a “DLN”) whilst still at a YOI.
The Claimant's claim for judicial review arises out of the decision to deport and the deportation order each dated 17 September 2018, the regulation 33 certificate also dated 17 September 2018 and the earlier DLN made on 16 August 2018. An order is sought to require the Defendant to return or facilitate the return of the Claimant to the UK.
In recent months, there have been important developments. In July 2020, the Court of Appeal found that the regulation 33 certificate was unlawful but adjourned the judicial review and the question of a mandatory injunction to the Administrative Court. Since then, in September 2020, the Secretary of State issued a fresh certificate, albeit long after the deportation had taken effect. There had not been a notice of appeal to the First-tier Tribunal (“FTT”) against the deportation order until at earliest 24 June 2019, many months out of time. On 19 October 2020, time was extended by the FTT for bringing the notice of appeal, but the hearing of the appeal was stayed until after the hearing before the Administrative Court.
There is before the Court a rolled-up hearing as ordered by Julian Knowles J on 9 September 2020 to determine:
(a) the Claimant's application to amend his grounds of claim;
(b) his application for relief in the form of a mandatory order returning him to the UK;
(c) the application for permission to bring the claim; and
(d) subject to permission, the claim itself.
This claim was heard over two days on 8 and 9 December 2020. Before the Court was a large amount of material. It includes 2 main bundles comprising about 1200 pages. It also comprises 2 bundles of authorities comprising 60 dividers which have been supplemented by more than 10 additional authorities. In addition to having the benefit of the submissions on behalf of the Claimant and the Secretary of State, the Court has received written and oral submissions on behalf of the Aire Centre.
The parties have been unable to agree a list of issues. At the start of the hearing, there were lists of issues of the Claimant and the Secretary of State respectively: The Intervener agreed with the list of the Secretary of State. In the course of the hearing, the Court asked for the issues to be reordered in what was called a roadmap so as to present the issues in a way that might reflect the order in which the Court would have to consider the issues. There were two roadmaps prepared, which are referred to in the last section of this judgment. The Court is very grateful to all Counsel for their respective expertise and experience and for their very carefully prepared written and oral submissions throughout the applications.
III The facts
(a) The Claimant
The Claimant, Yuri Mendes, is a national of Portugal. He was born on 17 September 2000. He came to the United Kingdom from Portugal with his mother and siblings. On his own account, he arrived in the UK in December 2013, although the Secretary of State has said that it was in 2014. As an EU national, he would have entered the UK on the basis of his right of free movement within the EU. The Secretary of State does not accept on either account that the Claimant gained a right of permanent residence before the date of the Deportation Order by virtue of five years' continuous residence under regulation 15(1) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”)
A summary of the offending history of the Claimant was described by Murray J in his judgment of 15 August 2019 neutral citation number [2019] EWHC 2233 (Admin). Although Murray J's judgment was reversed by the Court of Appeal [2020] EWCA Civ 922, it is still convenient to set out the history of the Claimant's offending as follows from para. 9 of Murray J's judgment in this matter as follows:
“Between 21 November 2015, when the Claimant was 15 years old, and 6 March 2018, he was convicted on five occasions for 12 offences:
i) On 21 November 2015 at Manchester and Salford Juvenile Court, he was convicted of possession of an article with a blade/sharp point on school premises. For that offence, on 26 November 2015, he was made subject to a 9-month referral order.
ii) On 7 July 2016 at Greater Manchester Juvenile Court, he was convicted of criminal damage and battery. For those offences, on 28 July 2016, he was given a 12-month youth rehabilitation order, with a supervision requirement and an electronically-monitored curfew requirement. He was also ordered to pay compensation of £250 and made subject to a 12-month restraining order.
iii) On 1 September 2016 at Greater Manchester Juvenile Court, he was convicted of attempted robbery. For that offence, on 22 September 2016, he was made subject to an 18-month Detention and Training Order (“DTO”), which was subsequently varied on appeal to a 12-month DTO. He was also ordered to pay compensation of £250.
iv) On 12 June 2017 at Greater Manchester Juvenile Court he was convicted of failing to comply with the DTO resulting from his conviction on 1 September 2016. He was fined £30.
v) On 6 March 2018 at Greater Manchester Juvenile Court he was convicted of six counts of robbery and remanded in youth detention accommodation, until he was sentenced on 27 March 2018 to [a] 12-month DTO.”
On 3 April 2018, nearly six months before his custodial sentence came to an end, the Claimant was attended by an immigration officer, an appropriate adult and his caseworker. The Secretary of State's CID records confirm that the deportation criteria were discussed and understood.
It was noted on 22 May 2018 that the Defendant reviewed the case and considered deportation was “justifiable and proportionate under the EEA Regulations”. This was before any invitation for representations by the Claimant.
On 10 July 2018, Ruth James from the Youth...
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