MH (Accession nationals not now removed) Slovakia [2004] UKIAT 00315                 

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 23 September 2004
Determination delivered orally at Hearing
Date Determination notified: 30 November 2004 
	 
Before:

Mr C M G Ockelton (Deputy President)
Mr T B Davey
Mr T Culver

Between:
SECRETARY OF STATE FOR THE HOME DEPARTMENT
APPELLANT

and

RESPONDENT

For the Appellant:		Mr T Greig, Home Office Presenting Officer
For the Respondent:		Mr P Jorro, instructed by Elder Rahimi Solicitors

It is Home Office Policy that citizens of EU countries who were in the United Kingdom at the date of their country’s accession to the EU will not be removed unless they pose a threat to public health, public policy or public security.  Appeals by such individuals should therefore be allowed (on EU grounds only) unless they are shown to pose such threat.

DETERMINATION AND REASONS

1.	The Appellant is the Secretary of State for the Home Department.  He appeals, with permission, against the determination of an Adjudicator, Mr J R Gibb, allowing on human rights grounds the appeal of the Respondent, a citizen of Slovakia, against his decision made originally on 26 November 1997 and subsequently confirmed to refuse leave to enter and give directions for removal to Slovakia.

2.	The Respondent is [        ] and is already well known in the jurisprudence of refugee law.  He is a person who applied for asylum from Slovakia and the refusal of asylum to him was the subject of litigation, not only before the Appellate Authorities but also before the Court of Appeal and the House of Lords.  The Secretary of State actively fought the Respondent’s claim, succeeding, in due course, before the House of Lords, whose judgment was given on 6 July 2000.

3.	The Respondent was not removed at that time and, following the coming into force of the Human Rights Act on 2 October 2000, the Respondent, together with his wife, [         ], and his son, [       ], made an allegation that to remove them in consequence of the decision which had been made would breach their human rights.  The Secretary of State declined to modify the decisions he had already made.  He refused the human rights claim of the Respondent’s wife and child on 2 April 2001, at about the same time confirming his decision to remove the Respondent.

4.	There have subsequently been proceedings before the Appellate Authorities, as a result of which the matter comes before us today.

5.	In the meantime, however, Slovakia, the country of which the Respondent is a national, has become a member of the European Union.  As is well known, the founding documents of the European Union and subsequent Directives establish and enforce a series of rights of freedom of movement for nationals of states within the European Union exercising treaty rights within the territories of the Union.  As a result of that, the Secretary of State has, we have been informed, taken a view that citizens of those countries which became members of the European Union on 1 May 2004 should not be removed unless they represent a threat to public policy, public health, or public security.  That policy is contained in a letter from Maria Leon, the Assistant Director at the Immigration and Nationality Appeals Directorate of the Home Office, to the Deputy President of this Tribunal, dated 4 March 2004.

6.	It has the effect that appeals to the Appellate Authorities by or in respect of individuals who are citizens of countries which became members of the European Union on 1 May 2004 fall to be allowed unless the Secretary of State can establish that the individual in question represents a threat to public policy, public health or public security.

7.	Mr Greig, who appears for the Secretary of State before us, confirms that that is the position and confirms also that none of the three individuals with whom we are concerned today poses such a threat.

8.	The appeal of the Secretary of State is therefore dismissed.  This determination is being reported in order to make as widely-known as possible the Secretary of State’s policy in this type of case.

C M G OCKELTON
DEPUTY PRESIDENT