Vulnerable EEA national unlawfully detained by the Home Office, High Court rules

The case of R (LC) v The Secretary of State for the Home Department [2018] EWHC 1925 (Admin) was a judicial review challenge to the detention a vulnerable EEA national who was made the subject of a deportation order under the 2006 EEA Regulations. [1]

Full disclosure: I acted for the Claimant, LC, instructed by Claire Ryan of Duncan Lewis.

Background

This case featured an unusual number of disputed facts dating back several decades concerning both the claimant’s history of offending and his period of residence in the UK.

Following the deportation order, LC lodged an out of time appeal against that decision in the Immigration Tribunal but the Tribunal rejected it.

He was detained from April 2016 until December 2016. After his release he complied with reporting conditions for 6 months until he was re-detained (while reporting) in June 2017 onwards and a year later he remained in detention at the date of the trial. The Defendant had made very little, if any, progress on removing him to Portugal.

During the latest period of detention he had sent further representations to the Home Office with additional evidence of his long of residence in the UK, in an attempt to show that they had misapplied the EEA Regulations in their decision to deport him. After considerably delay, the Home Office rejected the further submissions and required him to leave the UK before he could apply to revoke the deportation order.

The law

In brief, the EEA Regulations 2006 and their update in the 2016 Regulations [2] afford EEA nationals 3 escalating levels of protection from deportion:

• For all EEA nationals, deportation will only be justified where their conduct represents ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society‘;
• Where an EEA national has acquired permanent residence (such as by working or studying for 5 years in the UK), there must be ‘serious grounds of public policy and public security‘ to justify deportation;
• Where an EEA national has resided continuously in the UK for 10 years prior to the date of the deportation order, ‘imperative grounds of public security’.

The Home Office made the original deportation order against LC on the basis that he was entitled to the lowest level of protection available and that he had not acquired either permanent residence nor 10 years’ continous residence.

LC claimed the highest level of protection applied, which required ‘imperative grounds‘ to deport him, based on his length of residence in the UK, or alternatively, claimed that he had acquired permanent residence (under the incapacitated worker provisions) and was entitled to the medium level of protection. He relied on a determination of the First-tier Tribunal (Social Entitlement Chamber) which had twice found in his favour on an appeal against the DWP’s refusal of his applications for benefits. The social security Tribunal had concluded that LC had acquired permanent residence as early as April 2006.

The judicial review claim

LC brought a judicial review claim and was granted permission on all grounds, arguing that:

• He could not have been deported lawfully prior to his further representations being considered;
• The deportation order (and the subsequent refusal to revoke it) had applied the wrong level of protection to him and was thereby unlawful;
• EU law entitled him to apply to revoke the deportation order while he was in the UK (contrary to the terms of the 2016 Regulations which prohibit such applications and require applicants to leave the UK first);
• Both EU and common law rendered his detention unlawful given his vulnerability and the availability of less intrusive measures that could be used to maintain contact with him – (ie. bail).

The High Court’s judgment

In his judgment, David Pittaway QC sitting as a Deputy High Court Judge, found as follows:

• LC’s detention had become unlawful from April 2018 onwards, when it became clear that the Portugeuse authorities were not going to change their views and refused to provide a travel document to LC (§ 41);
• However, the earlier period of detention was lawful in light of LC’s criminal record and the Defendant’s purpose in enforcing the deportation order (§ 33);
• LC’s challenge to the refusal to revoke the deportation order was dismissed. That decision was justified on the basis that LC had not put forward a ‘change in circumstances’ – he merely argued that the deportation order should not have been made. The Defendant was entitled to rely on information obtained from the Belgian authorities as to LC’s offending and regardless of whether he had obtained permanent residence in the UK, there were serious grounds of public policy to justify deportation due to the risk of serious harm to the public (§§ 30 – 32).

Comment

The long overdue order for release of a vulnerable EEA national detainee is to be welcomed. Unfortunately, due to his detention, LC was evicted from his accommodation, making it practically difficult for him to maintain contact with the Home Office and his legal representatives post-release.

The High Court’s judgment does not address a number of legal arguments that were pursued on LC’s behalf.

LC relied on the judgment in R (BXS) v Secretary of State for the Home Department [2014] EWHC 737 (Admin), where Michael Fordham QC sitting as a Deputy High Court Judge discussed the domestic legilsation at §§ 20 to 26 and concluded that the 2006 EEA regulations ought to be read so as to be compatible with both EU law and human rights obligations where their uncompromising effect would result in a violation of those protective frameworks. If a change of circumstances means that the person’s deportation is no longer justified, the Secretary of State should revoke the order.

It is arguable that the High Court in LC adopted an unduly stringent approach by requiring  a ‘change of circumstances’ to render an EEA deportation order revocable. In a string of decisions by the European Court of Justice [3], it has been held that measures taken to expel an EEA national (such as detention or removal) must be justified at the time of the measure. Arguably, this creates an ongoing duty on the Secretary of State to:

1. consider in-country applications to revoke EEA deportation orders, and
2. re-assess EEA deportation decisions in light of any fresh evidence, even if the evidence does not amount to a ‘change in circumstances‘ since the decision was made.

The influence of this line of ECJ case law can be seen in another recent decision by Michael Fordham QC sitting as a Deputy, R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin) (in particular see §§ 25 and 32).

Authoritative guidance on these issues is still required. It doesn’t seem right to me that if a person fails to appeal against an EEA deportation order, their only way of challenging it, absent a ‘change of circumstances’, is to leave the UK and make an application to revoke the order. What if the order was wrongly made in the first place?

Another vexed question in this case was how to resolve disputed issues of fact where a person with a human rights claim or a claim under the EEA Regulations misses the deadline for appeal to the Tribunal. This claim would have been much easier to resolve had the Immigration Tribunal simply accepted the out of time appeal and made conclusive factual findings on it. In the absence of such findings, the High Court is left with stark disputes of fact that it was not well-equipped to resolve on a judicial review.

Thank you to Claire Ryan, the solicitor on the case, for her hard work on LC’s behalf.

[1] The Immigration (European Economic Area) Regulations SI 2006/1003.

[2] The Immigration (European Economic Area) Regulations SI 2016/1052, see in particular regulation 27.

[3] See, for example, the ECJ decisions in Royer, Case 48/75 at § 43, Olazabal Case C100/01 at § 45, and Bouchereau (30/77), ECLI:EU:C:1977:172 at §§ 17 to 18.