England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2014

MR JUSTICE JAY:

Introduction

1. The issue in these linked applications for judicial review, as Mr Ronan Toal has helpfully encapsulated it, is whether the Immigration (European Economic Area) Regulations 2006 (S.I. 2006 No. 1003) ("The EEA Regulations") provide a lawful basis for denying the Claimants the rights they would have were they non-EEA citizens (i) to apply whilst in the United Kingdom for revocation of the deportation orders made against them, and (ii) to appeal whilst in the UK against the refusals to revoke the deportation orders.
2. Cranston J granted permission to both Claimants following a contested oral hearing, limited to the issue I have identified. He refused permission to apply for judicial review on other grounds, and he also refused the applications for a stay of consideration of those other grounds pending a decision of the Court of Appeal in BXS v SSHD [2014] EWHC 737 (Admin).
3. In order to differentiate between the two Claimants I will refer to them by name. However their precise factual circumstances matter very little, because the points for current determination raise narrowly-defined issues of statutory construction within an EU context.

Essential Factual Background: Luis Miguel Oliveira

4. Mr Oliveira, a national of Portugal, has been exercising Treaty rights in the UK for some years. He also has a lengthy history of criminal offending. On 16^th November 2011 the Defendant decided to remove him from the UK exercising powers under regulation 19(3)(b) of the EEA Regulations.
5. Mr Oliveira exercised his statutory appeal rights to the First-tier Tribunal and thereafter to the Upper Tribunal. On 14^th February 2014 the Court of Appeal dismissed his appeal: see LO (Portugal) v SSHD [2014] EWCA Div 199. The Upper Tribunal's conclusion, reversing that of the First-tier Tribunal, was held to be proportionate.
6. On 28^th February 2014 the Defendant signed a deportation order against Mr Oliveira. He then applied to have that revoked on the basis of what his solicitors characterised as a material change of circumstances, namely psychiatric or psychological evidence which purported to show that he was now at a low risk of re-offending. The Defendant refused to revoke her deportation order, and the reasonableness and/or proportionality of that decision does not arise as a free-standing issue in these proceedings, although it would arise in the event that Mr Oliveira could exercise an in-country right of appeal.

Essential Factual Background: Szymon Byczek

7. Mr Byczek, a national of Poland, has been exercising Treaty rights in the UK since 2006. In September 2011 he was convicted at Truro Crown Court of robbery, and was sentenced to 3 years' imprisonment. On 11^th July 2012 the Defendant made a decision to remove Mr Byczek from the UK under regulation 19(3)(b). Like Mr Oliveira, Mr Byczek exercised his statutory appeal rights, but these have now become exhausted.
8. On 15^th May 2013 the Defendant signed a deportation order against Mr Byczek. On 16^th May 2014 he applied to revoke it. On 30^th May 2014 the Defendant informed Mr Byczek that his application was invalid, because it could only be made from outside the United Kingdom; but she went on nonetheless to consider its merits. The Defendant concluded that Mr Byczek remained a genuine, present and sufficiently serious threat to the public as to justify his deportation. The lawfulness of that decision cannot be challenged on an autonomous judicial review basis in these proceedings, but – as in the case of Mr Oliveira – it could be on an in-country statutory appeal.

The Legal Framework

9. The deportation of persons who are not British citizens is covered by the familiar provisions of the Immigration Act 1971, in particular sections 3 and 5, and Schedule 3. Specifically, (i) any person who is not a British citizen is liable to deportation if the Defendant deems his deportation to be conducive to the public good (section 3(5)(a)), (ii) the Defendant has power to make a deportation order against such a person (section 5(1)), (iii) the Defendant also has power to revoke such an order (section 5(2)), and (iv) the Defendant has a range of coercive, administrative powers relating to matters such as detention and removal (Schedule 3).
10. Taking the cases of non-British citizens in respect of whom the Defendant has refused to revoke a deportation order, such persons enjoy rights of appeal to the extent set out in sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002.
11. Specifically, section 82(2)(k) provides:

"(2) In this Part "immigration decision" means:

(k) refusal to revoke a deportation order under section 5(2) of [the Immigration Act 1971]."

12. The effect of section 92 is that such decisions are not appealable from within the United Kingdom unless sub-section (4) applies. This provides:

"This section also applies to an appeal against an immigration decision if the appellant –

(a) has also made an asylum, or a human rights claim, whilst in the United Kingdom, or

(b) is an EEA national … and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."

13. Mr Toal relies on both limbs of section 92(4). In relation to paragraph (b), he submits that this sub-section is apt to apply to the Claimants' cases because the Defendant's refusal to revoke her deportation orders bears on their right to reside in the UK. It follows says Mr Toal, and I would tend to agree, that if the Claimants have appeal rights under the 2002 Act, these would be exercisable from within the jurisdiction.
14. Section 109 of the 2002 Act provides:-

"European Union and European Economic Area

(1) Regulations may provide for, or make provision about, an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the [EU] Treaties.

(2) The Regulations may –

(a) apply a provision of this Act or the Special Immigration Appeals Commission Act 1997 with or without modification;

(b) make provision similar to a provision made by or under this Act or that Act;

(c) disapply or modify the effects of a provision of this Act or that Act.

(3) in subsection (1) "Immigration Decision" means a decision about –

(a) a person's entitlement to enter or remain in the United Kingdom, or

(b) removal of a person from the United Kingdom."

15. The regime governing the deportation of those who are exercising EU Treaty rights, e.g. these Claimants, is somewhat more complex, although it dovetails to some extent with what I have called the familiar provisions of the 1971 Act. I propose to summarise the position in the following manner.
16. Pursuant to Article 21(1) of the Treaty on the Functioning of the EU ("the Treaty"):-

"Every citizen of the Union shall have the right to move and reside freely within the territories of Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."

17. By Article 45(3) of the Treaty, these freedom of movement rights are "subject to limitations justified on grounds of public policy, public security or public health". The second category – "public security" – is the most germane to the instant cases, but "public policy" might well also apply. Further, Article 27 of the Citizenship Directive (Directive 204/38/EC) permits Member States to restrict the free movement and residence of other EEA nationals on grounds of public policy, public security and public health.
18. Thus, as a matter of EU law, a Member State is permitted to expel nationals of other Member States enjoying Treaty rights in the expelling State, but the relevant EU provisions do not provide the legal machinery for effectuating such expulsion. That machinery is to be found in the relevant domestic law provisions: in particular, the EEA Regulations, and/or any other provisions to which those Regulations refer or relate.
19. The EEA Regulations were made under section 2(2) of the European Communities Act 1972 and section 109 of the 2002 Act. Section 2(2) provides:-

"Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or Department may by order, rules, regulations or scheme make provision –

(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;

and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid."

20. Counsel are substantially in agreement as to which provisions of the EEA Regulations are relevant. I set these out to the necessary extent.
21. Regulation 2(1) provides:-

"Deportation order" means an order made pursuant to Regulation 24(3) [this provision was inserted into the EEA Regulations by the Immigration (European Economic Area) (Amendment) Regulations 2009 (S.I. 2009 No. 1117)];

…

"EEA Decision" means a decision under these Regulations that concerns –

…

(c) a person's removal from the United Kingdom…"

22. Regulation 19(3) provides:-

"Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if–

…

(b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with Regulation 21 …"

23. Regulation 21 provides, so far as is material:

"(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.

…

(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must taken into account of considerations such as the age, state of health, family and economic situation of the person … and the extent of the person's links with his country of origin."

24. Regulation 24(3) provides:-

"Where a decision is taken to remove a person under Regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly. [the first eight words were substituted by amendment in 2009; the original wording stated – "where the decision is under regulation 19(3)(b)"]"

25. Regulation 24A of the EEA Regulations was inserted by the Immigration (European Economic Area) Regulations 2009, which were also made under section 2(2) of the 1972 Act. It provides:-

"Revocation of deportation and exclusion orders

(1) A deportation or exclusion Order shall remain in force unless it is revoked by the Secretary of State under this regulation.

(2) A person who is subject to a deportation or exclusion order may apply to the Secretary of State to have it revoked if the person considers that there has been a material change in the circumstances that justified the making of the order.

(3) An application under paragraph (2) shall set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.

(4) On receipt of an application under paragraph (2), the Secretary of State shall revoke the order if the Secretary of State considers that the criteria for making such an order are no longer satisfied.

(5) The Secretary of State shall take a decision on an application under paragraph (2) no later than six months after the date on which the application is received."

26. Regulation 26 provides, insofar as is material:-

"Appeal Rights

(1) Subject to the following paragraphs of this Regulation, a person may appeal under these Regulations against an EEA decision.

…

(6) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the First-tier Tribunal.

(7) The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the First-tier Tribunal in accordance with that Schedule."

27. Regulation 27 provides:-

"Out of country appeals

(1) Subject to paragraphs (2) and (3) [immaterial for present purposes], a person may not appeal under regulation 26 whilst he is in the United Kingdom against an EEA decision –

…

(b) to refuse to revoke a deportation or exclusion order made against him…"

28. It should be noted that even before the 2009 amendments came in, decisions to refuse to revoke deportation orders were appealable decisions as "EEA decisions" within the meaning of regulation 2. The effect of regulation 27(1)(b) was that such appeals could only be brought outside the UK. This remains the case after 2009, but the basis on which an EEA application may apply to have his deportation order revoked has been narrowed. Additionally, before the 2009 amendments were enacted, there was no provision in the EEA Regulations which empowered the Defendant to revoke a deportation order (regulation 24(5) provides only that there are restrictions on removal if more than two years has elapsed). The Defendant therefore had to rely on the provisions of section 5(2).
29. Regulation 30 gives effect to Schedule 2 of the EEA Regulations, paragraph 4 of which provides:-

"(1) The following EEA decisions shall not be treated as immigration decisions for the purpose of section 82(2) of the 2002 Act (right of appeal against an immigration decision) –

(a) a decision that a person is to be removed under regulation 19(3)(a) or 19(3)(c) by way of a direction under section 10(1)(a) of the 1999 Act (as provided for by regulation 24(2));

(b) a decision to remove a person under regulation 19(3)(b) by making a deportation order under section 5(1) of the 1971 Act (as provided for by regulation 24(3));

(c) a decision to remove a person mentioned in regulation 24(4) by way of directions under paragraphs 8 to 10 of Schedule 2 to the 1971 Act…"

The Challenge

30. Mr Toal submits that, before the coming into force of the 2009 Regulations, the Claimants could have made in-country applications for revocation of the EEA deportation orders as applicable to them. The effect of section 24A(3) was to change the law to the extent that such in-country applications were henceforth precluded.
31. Mr Toal now agrees that the vires for section 24A(3) could not be section 109 of the 2002 Act, because that provision only permits the making of Regulations to disapply or modify the effect of a provision of the Special Immigration Appeals Act 1997 or the 2002 Act itself. That is not in dispute between the parties, and it is in any event apparent that the 2009 Regulations (which inserted regulation 24A into the EEA Regulations) were not in fact made under section 109; their purported vires is section 2(2) of the 1972 Act. To that extent, the 2009 Regulations differ from EEA Regulations.
32. Mr Toal's argument is that the instant case falls under none of the sub-paragraphs of section 2(2). In particular, he points out, as I have already observed, that the Treaty and the Citizenship Directive, both dealing with the exercise of freedom of movement rights, do not confer on Member States a power to deport which they did not previously enjoy. In terms of section 2(2)(b), Mr Toal's submission is that the deportation of EEA Nationals of other Member States is not such an EU obligation or right, nor is it related to such an obligation or right.
33. Relying on the general constitutional principle that a right of appeal may only be taken away by express Parliamentary language (see, R (Asifa Saleem) v SSHD [2000] 4 AER 914 (CA)), Mr Toal's case is that section 2(2) is too broad and unspecific a provision to enable the making of secondary legislation which adversely affects legal rights, as does regulation 24A.
34. This point is most clearly encapsulated in paragraph 44 of Mr Toal's skeleton argument, which reads:-

"The European Communities Act 1972, section 2 (2) confers a power in very general terms to make secondary legislation. Its terms, albeit general, do not authorise the making of such legislation adversely affecting legal rights when such an effect is not required by the European legislation that the Regulations purport to implement; a fortiori when the purpose of the European legislation is to confer rights upon EU Citizens, not to diminish rights that they otherwise had."

35. Mr Rory Dunlop submitted that the vires for regulation 24A is section 2(2)(b) of the European Communities Act 1972, which is a broad provision enabling the designated Minister or department to make regulations "for the purpose of dealing with matters arising out of or related to any such [EU] obligation or rights".
36. Mr Toal also had a second string to his bow, which emerged far more strongly in his oral argument than it did in his written submissions. Ultimately, it became apparent that his second line of attack, which assumed that there was vires for regulation 24A, was far more compelling than his first.
37. Mr Toal's submission was that the Claimants had two separate, simultaneous appeal rights because they were the recipients of two kinds of decision. The first appeal right was in relation to the EEA decision, and by virtue of regulation 27(1)(b) of the EEA Regulations was exercisable only from outside the UK. His clients do not wish to exercise these rights, and in any event could not before they left the jurisdiction. The second appeal right was in relation to the immigration decision made under the Immigration Act 1971, specifically the decision under section 5(2) to refuse to revoke the deportation orders. This appeal right was conferred by the clear wording of section 82(2)(k) of the 2002 Act, and was not removed by anything in the EEA Regulations. Indeed, paragraph 4(1) of Schedule 2 to the EEA Regulations had the effect of removing these appeal rights in three specified types of case, but not the instant case concerning refusals to revoke deportation orders.
38. In the final analysis, the destiny of Mr Toal's submission on this second issue turns on the true construction of regulation 24(3) of the EEA Regulations, read in its proper context. Mr Toal's submission hereabouts was that regulation 24(3) should be construed as applying sections 3 and 5 of the Immigration Act 1971 to decisions made under the EEA Regulations; or, put another way, that the entirety of section 5, in particular, applies to a person removable under regulation 19(3)(b).
39. Mr Dunlop's answer to these submissions was that the result contended for by Mr Toal would be absurd, and should therefore be avoided. The language of regulation 27(1)(b) could not be clearer: it precludes the exercise of an in-country appeal right in this class of case. Furthermore, it is necessary to subject regulation 24(3) to a close textual and forensic analysis. Whereas section 82(2)(k) refers to decisions made under section 5(2), regulation 24(3) is confined in its terms to treating persons in respect of whom regulation 19(3)(b) decisions have been made as persons to whom the relevant provisions of the Immigration Act 1971 apply. This is not tantamount to deeming decisions made under the EEA Regulations as if they were decisions made under the Immigration Act 1971. Additionally, it is clear from a consideration of the two deportation regimes that the Defendant's discretion is exercised very differently under each. Further or alternatively, Mr Dunlop submitted that even if deportation decisions in EEA cases are made under section 5 of the Immigration Act 1971, the scheme of the EEA Regulations creates a different class or category of case in relation to deportation decisions made in an EU context. Thus, a deportation decision made in such a context is not a decision made under section 5(2) tout court; it is a decision made under section 5(2) by virtue of section 24(3) of the EEA Regulations, a species which is not covered by section 82(2)(k) of the 2002 Act. Mr Dunlop accepted that, if his submissions were correct, paragraph 4(1) of Schedule 2 to the EEA Regulations would be a supererogatory provision.

Discussion

The First Issue

40. The Claimants' case has undergone some considerable evolution, beyond mere textual refinement, during the course of these proceedings. On my understanding, Mr Toal is no longer maintaining that the vires for s.24A is section 109 of the 2002 Act (plainly, it is not), or that this Regulation purports to disapply primary legislation, namely section 5(2) of the Immigration Act 1971. The compass of the present enquiry – at least as concerns the first issue - is narrowed to the proper ambit of section 2(2)(b) of the 1972 Act.
41. As Mr Dunlop points out, given that the Defendant had in fact considered, and determined, in-country applications for revocation of the EEA deportation orders in both cases, without prejudice to the statutory scheme, the Claimants' real objective in these judicial review proceedings is to secure in-country rights of appeal against both adverse determinations.
42. In my judgment, Mr Toal's approach to the first issue entails an artificially and unattractively restrictive construction of section 2(2)(b) in the context of provisions of the Treaties dealing with freedom of movement, and the Citizenship Directive. I have already mentioned Article 27 of the Citizenship Directive which permits Member States to restrict the free movement and residence of other EEA nationals on specified grounds. Thus, a domestic regulatory provision which bears on the power of the responsible Minister to make a deportation order against EEA nationals must be within the scope of section 2(2)(b) because such a provision relates to an identified EU obligation or right inhering in such persons exercising Treaty rights in the United Kingdom. Either it bears on or pertains to the exercise of such rights, and therefore "relates to" them; or, alternatively, the ability of an EEA national to exercise Treaty rights carries with it correlative obligations not to act in a manner which might engage the deportation powers specified in the Treaty and the Citizenship Directive, and regulations 19(3)(b) and 24(3) "relate to" such obligations.
43. Similarly, a domestic regulatory provision, viz. regulation 24A, which is one stage removed from the foregoing, and governs the circumstances in which applications for revocation of EEA deportation orders may be made, and revocation decisions by the responsible Minister required, is likewise within the ambit of section 2(2)(b). The relevant nexus or relationship between the domestic provision and the specified EU obligation or right still exists.
44. I reach these conclusions on the basis of first principles rather than by invoking directly applicable authority, which is not available. The authority which bears most closely on the point arising here, but it is not particularly proximate, is R v Secretary of State for Trade and Industry, ex parte UNISON [1996] ICR 1003, where the Divisional Court (Otton LJ and Newman J) construed section 2(2)(b) in a different regulatory context. Otton LJ pointed out (1014F-G):-

"… I am satisfied that the applicants have not advanced a sound basis for limiting the scope of the phrase 'relating to' in s.2(2)(b) of the European Communities Act 1972. I reject the alternative meaning suggested by Mr Langstaff of 'tangential to or consequential'. This is not the language of the Directive or the United Kingdom legislation. I see no reason not to give the phrase 'relating to' or 'related to' any meaning other than its natural, everyday meaning."

45. There are two decisions in an immigration context which are of marginal relevance. In R (Nouazli) v SSHD [2013] EWCA Civ 1608, the Court of Appeal observed that EEA nationals are subject to an entirely different deportation regime to aliens with no EU rights. Overall, that regime is more favourable to EEA nationals. However, in that case the Court of Appeal was not troubled by vires arguments.
46. In BXS v SSHD (loc. cit.), Mr Michael Fordham QC, sitting as a Deputy Judge of the High Court, held - amongst other things - that those in these Claimants' position were not entitled to make an in-country application for revocation of their EEA deportation orders, or pursue an in-country right of appeal against refusal, either because of the provisions of the Citizenship Directive or the ECHR. Although this decision is helpful in identifying the species of case to which regulation 24A(3) is applicable, it does not bear on the vires argument I have to decide. In particular, no vires point was taken in that case.
47. Mr Toal also submits that the very general wording of section 2(2)(b) is simply too broad to authorise the making of subordinate legislation which affects legal rights, including rights of appeal (reading regulation 24A in conjunction with regulation 27). In my judgment, this submission adds nothing to Mr Toal's main argument, which is that the adverse impact on legal rights is not required by the European legislation that regulation 24A purports to implement. But, as I have already pointed out, that adverse impact is clearly permitted by Article 27 of the Citizenship Directive, and regulation 24A(3) – properly understood - is an adjectival or adjunctive provision which bears on the practical consequences of a deportation order having been made against an EEA national, and that individual seeking its revocation.
48. In any event, the cases on which Mr Toal relies, including the decision of the Court of Appeal in Asifa Saleem, do not have the reach which the Claimants require in order to make this argument good. Mr Toal relies on the general principle that constitutional rights may not be removed, or adversely affected, by secondary legislation the vires for which is wording of a broad nature. The primary answer to Mr Toal's submission is that section 2(2)(2) of the 1972 Act, read in conjunction with provisions such as the Citizenship Directive, is sufficiently precise and specific to enable the Defendant to enact a provision such as regulation 24A. Secondly, I accept Mr Dunlop's submission that the regulation of the circumstances in which applications for revocation may be made, and then appealed against, does not impact on an individual's constitutional rights (in other words, the instant case is several removes away from the context of cases such as R v Lord Chancellor, ex parte Witham [1998] 2 WLR 848, and R v SSHD, ex parte Pierson [1998] AC 539). Put shortly, there is no constitutional right to apply to the Defendant from a particular place, or to appeal against adverse decisions from within the UK as opposed to outside it.
49. By way of final observation on this first issue, it seems to be that regulations 24A, 26 and 27 of the EEA Regulations should be read together. Mr Toal's focus is on regulation 24A(3), but that has no bearing on any rights of appeal. Mr Toal does not seek to challenge the vires of regulation 27, which was enacted as long ago as 2006. None of Mr Toal's arguments really assails the vires of a provision which curbs the ability of someone subject to a deportation order to apply to revoke it whilst still in the jurisdiction. In my judgment, the Defendant is quite entitled to refuse to consider in-country revocation applications, and presumably usually does so. In practice, therefore, valid revocation applications will ordinarily be made from outside the UK: that is the premise of regulation 24A(3). In such circumstances, there can be nothing objectionable about a companion regulatory provision which requires appeal rights to be exercised from outside the UK too.

The Second Issue

50. This leads directly into the second issue which arises for determination, namely whether the Claimants have an in-country right of appeal against the Defendant's refusals to revoke the deportation orders in their cases.
51. Although the Defendant was under no obligation to do so, in both these cases she did make substantive decisions on the Claimants' applications, made from within the UK, to revoke their respective deportation orders. Mr Dunlop did not submit that the Defendant's decisions were therefore outwith the regulatory scheme, and should not be regarded as "EEA decisions" for the purposes of these Regulations and/or as "immigration decisions" for the purposes of the 2002 Act.
52. Nor did Mr Dunlop seek to argue that the present claim is somewhat academic inasmuch as the Claimants have not sought to file a notice of appeal under section 82 of the 2002 Act, and no decision has been made about the existence of any appeal right.
53. It follows that in the circumstances of the present case the second issue cannot be met by a straightforward denial of jurisdiction.
54. On the assumption that regulation 24A is intra vires section 2(2)(b), it follows that the obvious intention of this subordinate legislation read as a whole is that EEA nationals subject to EEA deportation orders should not have an in-country right of appeal against any refusal of the Defendant to revoke such orders. That is the clear wording and effect of regulation 27(1)(b).
55. That point may be thrown into sharp relief by considering the appeal rights of those subject to deportation decisions. If EEA nationals in their position could simply rely on section 82(2) of the 2002 Act, there would have been no need for regulation 26 of the EEA Regulations, which confers a general appeal right against an EEA decision. It is plain that the intention of the draftsperson was to place EEA nationals within a separate appellate regime. Schedule 1 to the EEA Regulations specifies the appellate machinery, and by virtue of paragraph 1 treats regulation 26 appeals as if they were appeals under section 82 of the 2002 Act. However, that does not bring into application any of the various sub-paragraphs of section 82(2); the right of appeal is conferred by regulation 26.
56. Exactly the same reasoning applies to decisions made under regulation 24A(1). In such cases, those subject to adverse decisions possess appeal rights, but these are exercisable only from outside the United Kingdom: see regulation 27. Schedule 1 also applies to such appeals, and treats them as appeals under section 82. However, for the same reasons as before, this does not bring into play section 82(2)(k).
57. Mr Toal advanced a number of submissions designed to persuade me that the Defendant had sensible grounds for wishing to confer two rights of appeal in a revocation case. Some of these submissions were tethered to what he thought were the broad merits of his clients' overall position. I found these submissions to be completely unpersuasive.
58. However, I cannot accept Mr Dunlop's submission that I can achieve justice in this case by, as it were, working backwards from the desire to avoid an absurd, uncovenanted result, in order to achieve an outcome consonant with the policy intendment underlying regulation 27(1)(b). That would be too creative. I am prepared to construe the relevant provisions in the light of the overall statutory and regulatory context, but ultimately the Defendant's own Regulations must mean what they say.
59. It seems to me that this case pivots on the true construction of regulation 24(3) of the EEA Regulations. Other provisions may serve to illuminate the correct interpretation of that provision, but regulation 24(3) is both the starting point and the end point of the inquiry.
60. The Defendant might have achieved her policy objectives in relation to EEA nationals by pursuing one of three possible routes. First, she might have carved out special rules for EEA nationals in the Immigration Act 1971. Such rules would have made clear, for example, that the criteria for removal were different, and narrower, in EEA cases. Secondly, she might have created a wholly self-contained regime for EEA nationals which did not rely on the Immigration Act 1971 at all. For such a regime to operate, the Defendant would have had to build into the EEA Regulations a web of decision-making and coercive powers which broadly matched sections 3 and 5 of, and Schedule 3 to, the Immigration Act 1971. To the extent that primary legislation might have been necessary for this purpose, the Defendant could have relied on section 2(4) of the 1972 Act. Thirdly, she might have created a form of hybrid between the first and two routes: in other words, the promulgation of a separate set of subordinate legislation which relied to some extent on pre-existing statutory powers.
61. The Defendant chose the third of these routes. She clearly intended to establish a separate regime for EEA nationals, but at the same time she did not intend to re-invent the wheel. Statutory powers were available and could be deployed.
62. The present difficulty arises because of the manner in which regulation 24(3) has chosen to refer to the pre-existing statutory provisions.
63. If the draftsperson had said words clearly to the effect that a decision under the EEA Regulations is always to be treated as if it were a decision under the relevant provisions of the Immigration Act 1971, then Mr Toal's argument would face no apparent difficulties. On the facts of these cases, the decision under the EEA Regulations would be deemed to be a decision under section 5(2) of the Immigration Act 1972. That would bring section 82(2)(k) into play, because it uses the preposition "under" in the context of section 5(2).
64. But the draftsperson has not used words quite to that effect. Instead, regulation 24(3) provides that the removal decision is made under regulation 19(3)(b), which is the operative provision governing the liability to deportation of EEA nationals. Regulation 21 identifies the conditions which fall to be satisfied, in the Defendant's assessment, before the deportation power may be exercised. Furthermore, the draftsperson has provided that the specified provisions of the Immigration Act 1971 apply "accordingly".
65. Where such a deportation decision is made, the person the target of that decision is treated by virtue of regulation 24(3) as if he were a person to whom section 3(5)(a) of the 1971 Act applied. The reason why regulation 24(3) is phrased as it is seems clear. The Defendant did not wish to follow the second of the three routes I have identified. That would have been overkill. But, the Defendant needed to make clear that persons who were the subject of EEA deportation decisions should be regarded as being persons liable to deportation for the purposes of section 3(5)(a) of the Immigration Act 1971, even if the grounds on which the discretion to deport is exercised are very different in an EEA case. That in itself would achieve next to nothing, but the real reason for treating these persons in this way is disclosed by focusing on the clause succeeding the final comma in regulation 24(3). To the extent that such provisions were not inserted into the EEA Regulations, the Defendant needed to bring these persons within the procedural and supplementary provisions of sections 5 of, and Schedule 3 to, the 1971 Act. Section 5 contains a series of procedural provisions which the Defendant would sensibly wish to apply to EEA nationals. These have nothing to do with the substance of the Defendant's decision-making, but everything to do with the consequences of it. Likewise, the Defendant requires the machinery laid down in Schedule 3 to detain EEA nationals and to effect their removal. It is for these reasons that section 5 and Schedule 3 apply "accordingly" to persons whose removal is deemed to be conducive to the public good, on account of section 3(5)(a).
66. I have little doubt that the policy intention behind regulation 24(3) was to apply section 5 of, and Schedule 3 to, the Immigration Act 1971 to the requisite extent. Thus, if there were an applicable procedural or supplementary provision in the EEA Regulations, there would be no need to rely on any equivalent provision in the 1971 Act. That, too, would have been overkill. However, it is noteworthy that the draftsperson of regulation 24(3) has not said "to the extent requisite or appropriate". Instead we see the looser adverb, "accordingly". I will need to consider whether the two formulations mean the same.
67. The power to make a decision to deport an EEA national is conferred by regulations 19(3)(b) and 21(1) of the EEA Regulations. However, there is no power in the EEA Regulations to make a deportation order. In a non-EEA context, deportation decisions and orders are both covered by section 5(1) of the Immigration Act 1971. In an EEA context, the power to make a deportation order arises solely because the section 5(1) power is incorporated into the EEA Regulations through the gateway of regulation 24(3).
68. The question arises whether deportation orders made in an EEA context are, in effect, made under section 5(1) of the 1971 Act on account of the operation of the deeming provision. In my judgment, this must be the position. The use of the preposition "under" cannot be avoided. I note the arguably contrary terms of regulation 2 (where the adverbial phrase, "pursuant to", is used), but the preposition "under" appears in paragraph 4(1) of Schedule 2, elsewhere in that Schedule, as well as in paragraph 4(3) of Schedule 4 to the EEA Regulations. It is commonplace to see statutory and regulatory language which refers to the exercise of a power under a particular provision.
69. It follows that, to the extent that regulation 24(3) permits the Defendant to sign a deportation order against an EEA national (to take just one example), that order must be made under paragraph 5(1) of the Immigration Act 1971. Before 2009, the same applied to decisions relating to the revocation of such orders under section 5(2). This would appear to bring into play section 82(2)(k) of the 2002, which uses exactly the same wording - subject always to the dis-application of section 82(2) by other provisions, and Mr Dunlop's alternative argument.
70. Turning to that argument, it is quite true that paragraph 4(3) of Schedule 4 to the EEA Regulations refers to a deportation order made "under section 5 by virtue of regulation 24(3)". Is this a special, distinct category for the purposes of the EEA Regulations? My provisional view, when reading the papers and persisting during the course of the oral argument, was that this was the case. Ultimately, however, I cannot embrace Mr Dunlop's alternative submission on this point. Although the criteria governing the making of deportation orders in an EEA case are very different from the "standard" case catered for in very general terms by section 5 of the Immigration Act 1971, it scarcely follows that EEA deportation orders constitute some form of distinct category. The correct analysis is that EEA deportation orders form a sub-set, or species, of the general category, or genus, of deportation order covered by section 5(1).
71. It follows that I am not prepared to construe section 82(2)(k) in such a way that revocation decisions described as having being made under section 5(2) of the Immigration Act 1971 by virtue of regulation 24(3) are somehow outside its statutory scope.
72. On the contrary, they are within the ambit of section 82(2) unless some provision of the EEA Regulations removes them from scope. This is exactly what paragraph 4(1) of Schedule 2 to the EEA Regulations achieves in relation to the three types of case it identifies. Furthermore, this sub-paragraph matches the terminology of section 82(2) – with the use of the preposition "under". Unfortunately, from the Defendant's perspective, decisions made under section 5(2) have not been included in the paragraph 4(1) list.
73. I have thought long and hard about the possible reason for this, because if there were a good reason that might avail the Defendant.
74. One possible line of reasoning runs as follows. The policy intendment behind regulation 24(3) was to apply the Immigration Act, but only to the extent appropriate, or to the extent necessary to secure the policies and objects of the EEA Regulations. Thus, section 5 and Schedule 3 only apply to the EEA regime in the absence of some equivalent provision set out in the EEA Regulations. If the relevant power is contained in the EEA Regulations, then no recourse to the 1971 Act would be required, and no decision under that Act would be made. The sole decision would be made under the EEA Regulations: that would be an EEA decision, attracting just one right of appeal under regulation 26. In such a case, there would be no need to remove any immigration decision from the scope of section 82(2), because there was no such decision. On the other hand, if there is no relevant power in the EEA Regulations, then recourse must be had to the relevant provision conferring such a power in the 1971 Act. The use of that provision would generate an immigration decision for the purposes of section 82(2), and a dis-application provision would be required to remove the decision from the scope of the 2002 Act.
75. I have no doubt but that this approach matches the Defendant's policy intention as well as being consonant with the regulatory language. Some additional support for this line of reasoning is accorded by further consideration of the three categories of case enumerated in paragraph 4(1) of Schedule 2: these are all cases where recourse is required to a provision of the 1971 Act, because there is no equivalent power in the EEA Regulations. In order to avoid the implication of a right of appeal under section 82(2), it was necessary from the Defendant's perspective to take legislative steps to preclude this. Had paragraph 4(1) included cases where the relevant power resided in the EEA Regulations themselves, this line of reasoning would encounter an obvious obstacle.
76. So far so good, but three difficulties arise. The first of these is that in 2006 there was no power under the EEA Regulations for the Defendant to revoke a deportation order. The only applicable power was under section 5(2) of the Immigration Act 1971. Thus, the Defendant should have included refusal of revocation decisions made under section 5(2) of the 1971 Act in her paragraph 4(1) list. On any view, her failure to do so cannot be explained. I conclude that this must have been a drafting error. However, it is not the sort of mistake which the Court may correct by judicial decision.
77. As it happens, as soon as the 2009 amendments were made, and regulation 24A conferred power on the Defendant to take revocation decisions, there was no longer any need to have recourse to section 5(2). On the assumption that the line of reasoning I am outlining is correct, there would also be no need, as from 2009, for any dis-application provision in paragraph 4(1) of Schedule 2. Somewhat ironically, therefore, the Defendant's initial drafting error may not prove fatal to her argument.
78. The second difficulty is that Mr Dunlop's skeleton argument contains the submission that regulation 24A modified the portal, viz. regulation 24(3), via which the section 5(2) power could be reached. If that submission were right, it would follow that the power under the Immigration Act 1971 still applies to a revocation case, and that (in line with my previous reasoning) the Defendant has made an immigration decision which attracts a section 82(2) appeal right. That submission is, however, plainly incorrect. Regulation 24A(1) provides in terms that revocation decisions are made under regulation 24A.
79. But there is also a third difficulty. In order for this line of reasoning to succeed, the adverb "accordingly" in regulation 24(3) must be construed as meaning "to the requisite extent" or "to the extent appropriate". As I have said, that would match what I have called the policy intendment of the provision, but does my suggested construction fit within the natural and ordinary meaning of "accordingly"? The primary meaning of "accordingly" in the Concise OED is "as suggested or required by the (stated) circumstances". The secondary meaning is "consequently", but that does not apply here.
80. In view of the dictionary definition, I return to regulation 24(3). The clause "is/are to apply accordingly" is replicated in regulation 24(2) and (4), but not in regulation 24(1). This lends further support to the line of argument I am proposing. In regulation 24(1) cases, paragraphs 17 and 18 of Schedule 2 to the 1971 Act will apply in their entirety, because they will always be required to that extent. In regulation 24(2) and (3) cases, the provisions which are referred to will apply to the extent that they are required. If they are not required, because the power exists elsewhere, there is no need to deem their application to the given case.
81. Further support for this approach is vouched by paragraph 4 of Schedule 4 to the EEA Regulations. In sub-paragraphs (1) and (2), the relevant decision is regarded as having been made under the relevant part of regulation 19 of the EEA. In short, the EEA Regulations conferred the relevant power, and no recourse need be had to, or mention made of, any equivalent provision in the 1971 Act. In sub-paragraph (3), the position differs, because there is no relevant provision in the EEA Regulations. Hence, the decision is made under section 5 of the 1971 Act by virtue of the deeming provision.
82. My mind has wavered on this point, for at least two reasons. First, my suggested construction achieves a just and sensible result, but via a somewhat windy or thorny route. Secondly, I have already adverted to the conflict between my reasoning and Mr Dunlop's skeleton argument. Mindful that I was potentially travelling off-piste, following the hearing I invited the parties to comment on my current thinking. Mr Dunlop's helpful note indicated general agreement with my suggested analysis, and he explained that his skeleton argument might have been more felicitously expressed had it made clear that the reference to the "portal" was to the pre-2009 position. Mr Dunlop then proceeded to re-write the relevant paragraph of his skeleton argument to achieve harmony with my approach. Mr Toal's equally helpful note urged me not to give "accordingly" a restrictive meaning. He submitted in the alternative that, given that the Defendant chose to consider these applications in-country, it followed that they were not being determined under regulation 24A at all, but only under section 5(2). That in my view is an ingenious but entirely unmeritorious argument which proves far too much. If necessary, I would hold that the Defendant's generosity took these cases beyond the scope of the regulatory and statutory schemes altogether.
83. Ultimately, though, the issue turns on two matters. First, can/may the adverb "accordingly" reasonably bear the meaning I am proposing? The answer to that question is in the affirmative. Secondly, if regulation 24(3) applies only to the extent appropriate, does it follow that the Defendant has made no immigration decision for the purposes of section 82(2) of the 2002 Act read in conjunction with the 1971 Act? Again, the answer is in the affirmative. The deeming provision does not apply, and consequently no immigration decision has been made under section 5(2).
84. The windy and thorny path I have mentioned contains the extra potential stumbling block created by the Defendant's drafting error. However, once it is recognised for what it is, and once it is also appreciated that the error no longer matters after regulation 24A was enacted, the stumbling block is removed.
85. I conclude that my suggested resolution to this difficult problem saves the Defendant from potential embarrassment. She has made no immigration decisions in the Claimants' cases which may form the subject-matter of section 82(2) appeals.
86. In reaching this conclusion, I have paid little regard to the fact that the Courts have said on a number of occasions that the appellate regimes for EEA and non-EEA nationals are separate: see, in particular, the decision of the Court of Appeal in RK (Nepal) v SSHD [2009] EWCA Civ 359 (at paragraph 36), and the decision of Blair J in AH (Iraq) v Secretary of State for the Home Department [2009] EWHC 1771 (Admin) (at paragraphs 26-28). These dicta do not contradict the Defendant's position – far from it, they chime with it - but they do not directly address the specific point which arises in these proceedings.
87. Mr Toal also placed some reliance on section 92(4)(b) of the 2002 Act, which provides that an EEA national exercising Treaty rights may exercise his section 82 appeal from within the UK. However, this provides no clue to the correct construction of regulation 24(3). Section 92(4) only applies if the EEA national has a right of appeal under section 82(2).
88. In these circumstances, Mr Dunlop does not require his alternative submission that, had these Claimants enjoyed appeal rights under section 82(2) of the 2002 Act, as well as rights under the EEA Regulations, this statutory provision should be read in effect as providing that the 2002 Act appeal must be pursued from outside the United Kingdom. Mr Dunlop also recruits section 2(4) of the 1972 Act in support of this submission. For the avoidance of doubt, I am not attracted by this sort of argument. Had section 82(2)(k) been applicable, I know of no rule of statutory construction which would enable an individual's rights to be "read down" (Mr Dunlop baulked at the use of this verb, but that is what it amounts to) in this restrictive manner.

Conclusion

89. These applications for judicial review must be dismissed.