QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of X
|- and -
|Secretary of State for the Home Department
Mr David Blundell and Ms Julia Smyth (instructed by the Government Legal Department) for the Defendant
Hearing dates: 18 November 2015
Written submissions were lodged during the period 20 November 2015 to 4 July 2016
Crown Copyright ©
By order dated 29 July 2016 no report of this case shall directly or indirectly identify the claimant, nor shall it directly or indirectly identify those who wrote the letters which accompanied the representations made by the claimant's then solicitors on 20 April 2015. The present judgment has been prepared so that it may be published without contravention of that order.
Mr Justice Walker:
|A1. X and his two sets of proceedings||1|
|A1.1 What happened in Romania and has happened in the UK||1|
|A1.2 First proceedings: appeal to the FTT against deportation||4|
|A1.3 Second proceedings: the present judicial review claim||6|
|A2. The judicial review claim in more detail||7|
|A2.1 X's matters of complaint and grounds for judicial review||7|
|A2.2 Acknowledgement of service & permission to proceed||10|
|A2.3 Subsequent steps in the judicial review claim||12|
|A2.4 Overview of this judgment, & outcome of the claim||16|
|B. The Citizens Directive & the EEA Regulations||18|
|B1. The Citizens Directive||18|
|B2. The EEA Regulations up to 28 July 2014||29|
|B3. The EEA Regulations from 28 July 2014 onwards||35|
|C. History of events||42|
|C1. Events in Romania prior to 2007||42|
|C2. Events 1 Jan 2007 to 27 July 2014||45|
|C3. Events 28 July 2014 to 19 March 2015||51|
|C4. Events 19 March to 11 May 2015||57|
|C4.1 Form IS.91 & 20 March notice; X's detention 23 March||57|
|C4.2 The 24 March detention authorisation||61|
|C4.3 Form IS.91RA and the 24 March letter||62|
|C4.4 The 20 April representations||70|
|C4.5 The 23 April decision notice||73|
|C4.6 The 23 April deportation order & detention authorisation||76|
|C4.7 The 24 April detention review||77|
|C4.8 Events 5 to 10 May inclusive||80|
|C5. Events 11 May 2015 to the end of August 2015||83|
|C5.1 The 12 May pre-action protocol letter||83|
|C5.2 The 14 May supplementary letter||84|
|C5.3 The grant of the stay, and letters of 18 & 19 May 2015||85|
|C5.4 The 22 May detention review||88|
|C5.5 The 17 June monthly progress report||89|
|C5.6 Permission to proceed, and the 18 June detention review||92|
|C5.7 The 16 July detention review and monthly progress report||93|
|C5.8 Grant of bail on 21 July||95|
|C5.9 The 23 July notice of restriction||96|
|C6. Events from September 2015 onwards||97|
|C6.1 Hearing, and outcome, in the FTT||97|
|C6.2 The Home Secretary's application for permission to appeal||98|
|D. Challenges to the EEA Regulations & the policy||99|
|D1. EEA Regulations & written policy: introduction||99|
|D2. Reg 24 AA: The reasons complaint||101|
|D3. Reg 24AA: proportionality/unlawful test complaints||109|
|D4. Reg 24AA: the effective remedy complaint||121|
|D5. The blanket policy complaint||127|
|D6. Travel costs policy complaint||135|
|D7. Unlawful policy considerations||137|
|E. Pre-redress exclusion of X under Reg 24AA||139|
|E1. Pre-redress exclusion of X: introduction||139|
|E2. The "real risk of serious irreversible harm" test||144|
|E3. Compliance with domestic law principles||153|
|E4. Compliance with the Home Secretary's policy||156|
|F. Complaints about detention||165|
|F1. Detention: introduction||165|
|F2. Stage 2: 24 March to 23 April 2015||165|
|F3. Stage 3: 23 April to 23 July 2015||169|
|F4. Stage 1 of detention on 23 March 2016||186|
A1. X and his two sets of proceedings
A1.1 What happened in Romania and has happened in the UK
A1.2 First proceedings: appeal to the FTT against deportation
A1.3 Second proceedings: the present judicial review claim
A2. The judicial review claim in more detail
A2.1 X's matters of complaint and grounds for judicial review
(1) X's "ongoing detention since 23 March 2015 (verbal decision)". It was said in X's grounds that he was detained on 23 March 2015, apparently under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). X's grounds complained that his detention infringed the principles of both European Union law and domestic law.
(2) A decision by the Home Secretary under regulation 24AA of the EEA Regulations that X should be removed from the United Kingdom despite his entitlement to appeal against the decision to deport him, and to certify that removal under regulation 24AA(2). The decision was identified in X's grounds as having been taken on 23 April 2015. What was certified was that X's removal to Romania, despite the deportation appeal process not having begun, would not be unlawful under section 6 of the Human Rights Act 1998. It was said on behalf of X that removal would breach section 6 because there was a real risk of serious irreversible harm if he were removed to Romania. It was also said that certification was contrary both to European Union law and to principles of domestic law.
(3) The third "decision" identified comprised regulation 24AA itself and associated guidance. The assertion made in X's grounds was that regulation 24AA, along with the Home Secretary's "certification policy and practice", were unlawful as contrary to European Union law.
(1) an order quashing the certification decision of 23 April 2015;
(2) a declaration that X had been unlawfully detained since 23 March 2015; and
(3) damages, including aggravated damages.
A2.2 Acknowledgement of service & permission to proceed
 There is an arguable issue as to whether the Claimant faces a real risk of serious irreversible harm if returned to Romania, noting that the Defendant's conclusions that removal would be proportionate and Convention compliant, relied on in the AoS in answer to this ground of challenge, are themselves subject to an outstanding appeal to the FTT.
 I grant permission on that and the other two grounds (unlawful detention since 23 March 2015, and illegality of Regulation 24AA).
 I grant interim relief to prevent the Claimant's removal pending the substantive hearing, but I do not order the Claimant's release from detention the existence of the FTT appeal is relevant to detention, and that is a matter separate from this JR.
A2.3 Subsequent steps in the judicial review claim
A2.4 Overview of this judgment, & outcome of the claim
(1) Section B below deals with the Citizens Directive and the EEA Regulations.
(2) Section C gives an account of the history of events.
(3) I explain in section D below that X is right to say that the guidance on regulation 24AA issued by the Home Secretary involved an unlawful policy. The reason is that it substituted a threshold test of "real risk of serious irreversible harm" for the true threshold test of whether removal would be unlawful under section 6 of the Human Rights Act 1988. I add that it is not appropriate in the present claim to decide certain aspects of X's other challenges to the EEA Regulations and to the Home Secretary's policy. They are aspects which do not need to be decided in the present claim, and are best left to be decided in a claim where they will affect the practical outcome. I also explain in section D that the remaining aspects of those challenges are not established.
(4) I conclude in section E below that the circumstances of X's case were such that the Home Secretary's decision in relation to X under regulation 24AA was unlawful.
(5) I conclude in section F below that X was unlawfully detained from 23 March 2015 until he was released on 23 July 2015, and that the Home Office was responsible for that unlawful detention.
(6) My conclusions in sections E and F result from the application of common law principles relied on by X. It is not necessary, and in the circumstances of the present case undesirable, to examine assertions by X that the application of EU law would result in the same conclusions.
(7) In section G I summarise my conclusions.
B. The Citizens Directive & the EEA Regulations
B1. The Citizens Directive
right to leave any member state, in particular the member state whose nationality the citizen possesses, in order to become established in any member state other than the member state whose nationality the Union citizen possesses
(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residency host Member State, their age, state of health, family and economic situation and the links with their country of origin.
(25) Procedural safeguards should also be specified in detail in order to ensure a high level of protection of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State, as well as to uphold the principle that any action taken by the authorities must be properly justified.
(1) Chapter I deals with general provisions and comprises articles 1 to 3.
(2) Chapter II, comprising articles 4 and 5, deals with rights of exit and entry.
(3) Chapter III is headed, "Right of residence". It begins with article 6, which provides for an initial right of residence for three months, in circumstances set out in that article.
(4) Union citizens will have a right of residence beyond that initial three month period if they fulfil conditions set out in article 7. One way in which they can fulfil those conditions is by being workers or self-employed persons in the host state.
(5) Articles 8 to 11 deal with administrative formalities and residence cards, while articles 12 to 15 deal with retention of the right of residence.
(6) Chapter IV is concerned with the right of permanent residence, a right which is not subject to the conditions provided for in chapter III. Section I of chapter IV, comprising articles 16 to 18, deals with eligibility. In that regard article 16 stipulates that Union citizens "who have resided legally for a continuous period of five years" in the host state shall have the right of permanent residence there.
(7) Section II of chapter IV, comprising articles 19 to 21, deals with administrative formalities.
(8) Chapter V, comprising articles 22 to 26, sets out provisions common to the right of residence and the right of permanent residence.
(9) Chapter VI deals with restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. I deal with the content of Chapter VI in more detail below. For present purposes I summarise the subject matter of the articles it contains. Article 27 sets out general principles in that regard. Article 28, headed "Protection against expulsion", imposes limitations on the ability of member states to take an expulsion decision. Article 29 deals with public health. Article 30 makes requirements as to the manner and form of notification of decisions. Article 31 sets out procedural safeguards. Article 32 concerns the duration of exclusion orders. Article 33 concerns expulsion as a penalty or legal consequence.
(10) Chapter VII comprises what are described as "Final provisions". Article 34 concerns publicity. Articles 35 and 36 concern abuse of rights, and sanctions. Article 37 stipulates that the provisions of the directive shall not affect laws, regulations or administrative provisions laid down by a member sate which would be more favourable to those covered by the directive. Articles 38 to 42 deal with repeals, implementation and similar matters.
Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
(1) Article 31.1 states that such a person shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any such decision.
(2) Article 31.2 states:
Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except:
- where the expulsion decision is based on a previous judicial decision; or
- where the persons concerned have had access to previous judicial review; or
- where the expulsion decision is based on imperative grounds of public security under Article 28(3).
(3) Article 31.3 states:
The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in article 28.
(4) Article 31.4 states:
Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.
B2. The EEA Regulations up to 28 July 2014
(1) Regulation 21 applied to a "relevant decision", defined to mean an EEA decision taken on the grounds of public policy, public security or public health.
(2) Paragraphs (2) to (6) of regulation 21 transposed relevant limiting provisions in articles 27 and 28.
(3) Regulation 29(3) provided that if a person in the UK appealed against an EEA decision, any directions given under specified powers for that person's removal from the United Kingdom would have no effect while the appeal was pending.
(4) The specified powers were those which in ordinary circumstances would be used for that person's removal. In those circumstances there was thus no need for such a person to seek a suspension order, and no need to make provision as to the position pending a decision on an application for a suspension order. The requirements of article 31.2 in that regard did not arise, because under UK law regulation 29(3) ensured that there would be no removal while the appeal against the removal decision was pending.
(5) In most cases the requirements of article 31.4 would not arise. This was because appellants would, in the absence of departure voluntarily, or forced departure prior to lodging an appeal, still be in this country and thus able to present their case in person. (No specific provision, however, appears to have been made in the EEA Regulations for circumstances involving voluntary departure or forced departure prior to lodging an appeal.)
removal is justified on grounds of public policy, public security or public health in accordance with regulation 21
there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3)(b)
may be detained under the authority of the Secretary of State pending removal or departure from the United Kingdom
B3. The EEA Regulations from 28 July 2014 onwards
(1) The circumstances in which regulation 24AA applies are:
(a) P has not appealed against the [relevant] decision , but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or
(b) P has so appealed but the appeal has not been finally determined.
(2) By paragraph (2) where regulation 24AA applies the Secretary of State can only give directions for P's removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P's appeal, would not be unlawful under section 6 of the Human Rights Act 1988.
(3) Paragraph (3) provides that the grounds on which the Secretary of State can certify a removal under paragraph (2) include (in particular) that P would not, before the appeal was finally determined, face a real risk of serious irreversible harm if removed the country or territory to which P is proposed to be removed.
(4) Paragraph (4) provides:
If P applies to the appropriate court or tribunal (whether by means of judicial review, or otherwise) for an interim order to suspend enforcement of the removal decision, P may not be removed from the United Kingdom until such time as the decision on the interim order has been take, except
(a) where the expulsion decision is based on a previous judicial decision
(b) where P has had previous access to judicial review; or
(c) where the removal decision is based on imperative grounds of public security.
C. History of events
C1. Events in Romania prior to 2007
C2. Events 1 Jan 2007 to 27 July 2014
(1) in 2008 X was released early on conditions;
(2) when granting conditional release, the Romanian court found that there was sound evidence of rehabilitation;
(3) in 2009 X left Romania and came to the UK;
(4) after X had arrived in this country the Home Secretary granted him residence as a student.
C3. Events 28 July 2014 to 19 March 2015
NOTICE THAT YOU ARE LIABLE TO DEPORTATION PURSUANT
TO THE IMIGRATION (EUROPEAN ECONOMIC AREA) REGULATIONS 2006
(1) under the heading, "Reasons for deportation"
 As a result of your criminality your deportation is considered to be justified on grounds of public policy and/or public security.
 This is because at Constanta High Court, Romania you were convicted of Murder for which you were sentenced to 12 years imprisonment. The offence you committed is considered to be particularly serious
(2) under the heading, "Current immigration status"
 In reaching this position, and based on the available evidence, full account has been taken of your immigration status.
 You are an EEA national and as such you qualify for consideration under the [EEA] Regulations. There is no evidence of your lawful entry into the United Kingdom. It is not known if you have been exercising treaty rights.
(3) under the heading, "Detention"
 As you are liable to deportation under regulation 19(3)(b) regulation 24 applies and you may be detained pursuant to paragraph 2 of schedule 3 to the Immigration Act 1971 pending the making of a deportation order.
C4. Events 19 March to 11 May 2015
C4.1 Form IS.91 & 20 March notice; X's detention 23 March
is considering whether there are reasonable grounds for suspecting that they may be removed from the UK under regulation 19(3)(b) of the EEA Regulations. Regulation 24(1) of [the EEA Regulations] applies.
C4.2 The 24 March detention authorisation
X has a conviction in Romania for murder, which attracted 12 years imprisonment. Due to this conviction X was issued with a stage 1 liability notice. It has come to light that X vacated his last known address 6 months ago, the Police have located him at a new address. He poses a significant risk of harm. I am satisfied that detention is proportionate and that the risks associated with his release outweigh the presumption to liberty. I therefore authorise detention.
C4.3 Form IS.91RA and the 24 March letter
X has been convicted of murder in his country of origin Romania on 22 March 2001. There are no other convictions. He is presently detained at police station. X has informed the Immigration Officer that he has been alcohol free since 7 April 2014. However, that he suffers from depression.
[1.2] As the Secretary of State is considering whether there are reasonable grounds for suspecting that you may be removed from the UK under Regulation 19(3)(b) of the EEA Regulations. [1.3] Therefore Regulation 24(1) of the [EEA Regulations] applied and you are liable to detention.
[2.1] While there is a presumption in favour of release, because of your criminality/the likelihood of re-offending/the seriousness of the harm to the public should you re-offend and/or high risk of absconding, there is reason to believe that you would not comply with any restrictions attached to your release.
[3.1] The Secretary of State, having carefully considered the particulars of your case, is satisfied that your detention is justified under 19(3)(b) of the EEA Regulations. [3.2] Therefore Regulation 24(1) of [the EEA Regulations] applies and you are liable to detention.
[5.0] It has been decided that you should be detained:
[5.1] To effect removal from the United Kingdom.
[5.2] You are likely to abscond if given temporary admission or release.
[5.3] There is insufficient reliable information to decide whether to grant you temporary admission or release.
[5.4] Your release carries a high risk of public harm.
[5.5] There is a risk of further re-offending.
[6.0] The decision to detain you has been reached on the basis of the following factors:
[6.1] You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place. You have not provided information as to whether you have friends or family in the United Kingdom.
[6.2] You have shown a lack of respect for Romanian law as evidenced by your conviction for murder for which you received a 12 year sentence.
[6.3] You have been assessed as posing a risk of serious harm to the public because you have committed the offence of murder for which you received a 12 year sentence.
[6.4] You have been convicted of murder and there is a significant risk that you will re-offend.
[6.5] Your unacceptable character, conduct or associations. You have committed the act of murder and this is considered as unacceptable conduct.
[7.3]You are the subject of deportation action.
[7.4]The Secretary of State therefore considers that there is a legitimate aim in maintaining your detention.
[7.5]She also considers when taking into account all the known facts of your case that detention is proportionate to a social need being fulfilled and that it is necessary for the prevention of disorder and crime and is in the wider interest of the maintenance of an effective immigration policy.
[10.1]In considering whether private life exists the Secretary of State notes that you have lived with your relatives and that they maintained you.
[10.2]No evidence has been provided to show that you have established a private life independent of your relatives.
[10.3]Whilst the Secretary of State accepts that during your time in the United Kingdom you may have established a private life she is of the view that interference can be justified in the circumstances of this case.
[10.4]The State has the right to control the entry of non-nationals into its territory, and article 8 does not mean that an individual can, in all circumstances, choose where they wish to enjoy their private life when there is no real obstacle to them establishing a private life elsewhere.
[10.5] Moreover any private life you have has been established whilst you have been in this country unlawfully, in the knowledge that you had no right to remain here and may be removed at any time.
[11.1]In reaching this decision the Secretary of State has balanced your rights against the wider rights and freedom of others and the general public interest.
[11.2]The Secretary of State has weighed up the extent of your possible private/family life against your criminal convictions.
[11.3]She considers that her actions are proportional to a social need being fulfilled and does not accept that the decision to maintain your detention would breach article 8.
[11.4]It is considered that your detention is justified for the reasons stated in this letter.
C4.4 The 20 April representations
(1) A letter dated 27 January 2015 from Mr A, the substance misuse counsellor at CH, confirming among other things that X was "currently engaged in our extensive five day, weekly residential rehabilitation programme". Mr A added:
it is of paramount importance that his rehabilitation continues unhindered so as not to restrict his chances of successful and sustainable long term sobriety
(2) A letter dated 17 April 2015 from Mr B, the service manager at CH, referring to X's state of health and "previous life on the streets" and commenting that he had shown "extraordinary progress in managing his addiction and sorting out a new direction for his life". The letter continued that X had been an exemplary model for others recovering from alcohol addiction, and had been made the responsible adult in the house when no staff were available during weekends. Mr B stated that "it would be a real setback" for X if he were not able to remain here to complete his studies to be an addiction counsellor.
(3) A character reference from his personal tutor at a college of further and higher education, where X had started a diploma for IT users in September 2014, and had been described as "an exceptional learner".
(4) A letter from Lt C, the Corps Officer (Minister) at a Salvation Army Church, where X had been a regular attendee since December 2013; the letter described his gardening work at the church and his achievements in continuing to stay free of alcohol, adding:
The church members are very distressed that someone who has become part of the family is not with us and facing the fear of being deported back to a country where he has no family, no friends, no support, no college place, no home. His life has been transformed over the past 18 months and he is really making something of his life here . It would be a terrible shame if all this progress was rewarded with deportation. We also miss the contribution that he brings to our church family.
(5) X's bank statements for the account that he held with Barclays bank.
(1) X had always pleaded his innocence; he was remorseful for any wrongs he had committed in his life; he was "determined not to repeat the past mistake", and was "a reformed character and has rebuilt his life in the UK."
(2) Refusal to allow X to stay in the UK "would not demonstrate effective immigration control and it would be a direct, unjustified and disproportionate interference with his Human Rights."
(3) The legitimate aim of proper immigration control did not outweigh X's rights to respect for his family and private life in the UK, he had established a family life, and any potential removal would be a major interference with his private life rights under article 8 ECHR.
(4) Turning to the certification under regulation 24AA, the representations said that X suffered from "depressions, anxiety and a dis-impairment of his cognitive ability". Referring to X's alcohol detoxification program the representations said that he had been sober ever since beginning it and that any upheaval and turmoil could lead to a relapse in psychological trauma to him. It was said that the certification of X's human rights claim contravened his Convention rights.
C4.5 The 23 April decision notice
C4.6 The 23 April deportation order & detention authorisation
C4.7 The 24 April detention review
8. Assessment of risk of absconding.
High. He is aware of Home Office's intention to deport him and had provided no evidence of close ties in the UK. It is unclear how anyone can exert sufficient influence over to remain in contact with Home Office officials and it is considered that he will have little incentive to comply with any release conditions that might be imposed.
9. Assessment of re-offending.
Low. He has had a single conviction and for that reason assessed as posing a low risk of re-offending.
10. Assessment of risk of harm to the public.
Medium. His index offence is murder and he is assessed as presenting a medium risk of harm to the public.
18. Recommendation (whether to maintain detention or release, supported by reasons).
[18.1] This case has been considered in line with chapter 55 of the Enforcement Instruction and Guidance and the presumption in favour of release, but do not consider it appropriate at this time for the following reasons.
[18.2] He is aware of Home Office's intention to deport him and has provided no evidence of close ties in the UK. It is unclear how anyone can exert sufficient influence over [him] to remain in contact with Home Office officials and it is considered that he will have little incentive to comply with any release conditions that might be imposed. He is assessed as posing a high risk of absconding.
[18.3] at the Constanta High Court Romania, X was convicted of a serious offence of murder and sentence to 12 years' imprisonment. The length of sentence would indicate the seriousness of the offence and the potential to cause serious harm to the public; and he is considered to pose a medium risk of harm to the public. However, that being his singular offence to date he is considered to pose a low risk of re-offending.
[18.4] It is considered therefore that the risk of absconding and harm he presents outweighs the presumption in favour of release.
[18.5] Maintain detention?
[19.2] Although X has committed one offence, he was convicted of murder whilst in Romania. This is a serious offence which attracted a 12 years imprisonment sentence. As X has not committed any further offences his risk to re-offend is assessed as low, his risk of harm is assessed as medium. It is noted that X is a recovering alcoholic and this is a factor that may heighten his risk to offend.
[19.3] X has no strong ties in the UK and no one that could [exert] influence on him. Whilst in the UK he was admitted into a residential home for vulnerable males with complex needs, due to his vulnerability this should be considered as a factor in his risk to abscond.
[19.4] Once Bio data and an EUL has been obtained X can be removed from the UK. In light of the information above, and the risks of re-offending, harm and absconding, I consider it outweighs the presumptions to release; continued detention is therefore authorised.
[19.5] Please note this detention review has been submitted late, due to exceptional circumstances, but this has made no material difference to the lawfulness of continued detention.
C4.8 Events 5 to 10 May inclusive
C5. Events 11 May 2015 to the end of August 2015
C5.1 The 12 May pre-action protocol letter
C5.2 The 14 May supplementary letter
(1) In response to X's claimed right to reside in the UK under EU law:
The Secretary of State is entitled to deport those whose presence in the UK is not deemed to be in the public interest and where it is not reasonable to leave the public exposed to an unacceptable level of risk. Due to the nature of your client's offence, he is deemed to pose such a risk.
(2) In response to an assertion that the decision to deport X was disproportionate, and that he did not pose an ongoing risk of harm:
Although your client has presented some evidence of having worked and studied in the UK, he has not resided here for a significant period of time. He is not estranged from his first language or culture and any acquaintances or connections made in the UK can be maintained via modern forms of communication. When balanced against the very serious offence committed by your client and his potential risk of harm, the public interest in his deportation outweighs his desire to remain in the UK. It is, therefore, not accepted that the decision to deport your client is disproportionate and it is further not accepted that your client does not pose an ongoing risk of harm; particularly in light of the fact that he has adduced no evidence that he has addressed the underlying causes which prompted him to offend in such a serious way.
(3) In response to complaints about certification under regulation 24AA:
The grounds upon which the Secretary of State may certify a claim under regulation 24AA(2) include (in particular) where the person would not face a real risk of serious irreversible harm if removed to the country of territory to which he is proposed to be removed, notwithstanding that the appeal process has not yet begun and/or been exhausted.
The Secretary of State is entitled to apply certification under Regulation 24AA to cases where there is no evidence that deportation would lead to serious, irreversible harm.
(4) In relation to the fact that X was being detained:
In reference to your points regarding your client's detention, the decision to detain was fully considered on the facts presented by your client. The decision to detain fully meets the criteria set out under the power to detain under the Immigration Act 1971.
Your client poses a significant risk of harm to the public in relation to his conviction of murder in Romania. We are satisfied that detention is proportionate, as the risks associated with his release outweigh the presumption to liberty and to achieve our aim in Public Policy/Public Security.
His detention has been considered in line with Chapter 55 of the Enforcement Instruction and Guidance and the presumption in favour of release, but this is not considered to be appropriate at this time.
(5) On the question whether deportation would interfere with X's rights under article 8 ECHR:
The immigration rules, which do not apply directly to EEA nationals, are considered to be a complete code for considering article 8 claims and they reflect Parliament's view of what the public interest requires for the purposes of article 8(2). Article 8 applies equally to everyone, regardless of nationality, and it would not be fair to consider article 8 claims from EEA nationals either more or less generously than claims from non-EEA nationals. In your client's case, his article 8 claim was decided consistently with Parliament's view of the public interest as set out in the above instruments and consideration was given to whether your client met the exceptions to deportation or whether there were very compelling circumstances such that he should not be deported.
As your client received a sentence of over 4 years' imprisonment for his murder conviction, his deportation is deemed to be conducive to the public interest. Paragraph 398 of the immigration rules and section 117C(6) of the 2002 Act reflect Parliament's view that the public interest requires the deportation of those sentenced to at least four years' imprisonment unless there are very compelling circumstances over and above those described in the exceptions to deportation. The exceptions are set out at paragraphs 399 and 399A of the Immigration Rules and sections 117C(4) and 117C(5) of the 2002 Act.
As your client was sentenced to 12 years' imprisonment, his case did not meet the exceptions to deportation but consideration was given to whether there were very compelling circumstances in his case; such that deportation would breach his rights under article 8 of the ECHR. The evidence that your client submitted, in support of his human rights claim, was given careful consideration but there was no evidence that there were very compelling circumstances in your client's case. It is not accepted that your client's deportation would amount to a breach of his article 8 rights because any interference with his rights would be justified, when balanced against the risk of serious harm which he is considered to pose to the public.
C5.3 The grant of the stay, and letters of 18 & 19 May 2015
There is no prospect of imminently removing our client and therefore he should be released applying your policy under chapter 55 EIG
 In deciding whether to grant temporary release, I must be satisfied that your client will comply with the terms of any conditions imposed on him, including a requirement to reside at one address only and a requirement to report for removal.
 The Secretary of State is satisfied that your client's conviction for a murder is regarded as serious, and which compels the Secretary of State to give significant weight to the question of protecting society against crime, disorder and moral decadence. The Secretary of State is of the view that the harm which would be caused as a result of any similar instances of offending is such that it is not considered reasonable to leave the public vulnerable to the potential for your client to re-offend.
 Your client poses a significant risk of harm to the public in relation to his conviction and we are satisfied that detention is proportionate as the risks associated with his release outweigh the presumption to liberty and to achieve [our] aim in Public Policy/Public Security.
 His detention has been considered in line with chapter 55 of the Enforcement Instruction Guidance and the presumption in favour of release. Due to the risk of absconding, and the risk of harm that your client poses to society, release is not considered to be appropriate at this time.
 your client is fully aware the Home Office is serious in its intentions to deport him It is considered that your client would have little incentive to remain in contact with the Home Office if released at this stage. This decision not to release your client is consistent with the statutory duty to protect the interest of children set out in section 55 of the Borders Citizenship Immigration Act 2009.
C5.4 The 22 May detention review
X is a convicted murderer and an alcoholic; he therefore presents a high risk of harm to the public and could not be relied upon to adhere to reporting if released at the present time.
Once the JR is concluded removal directions can be reset and he can be deported within a reasonable time scale, therefore it is proportionate to maintain detention for a further 28 days.
C5.5 The 17 June monthly progress report
Your release carries a risk of public harm.
Your unacceptable character and conduct as a result of the aforementioned conviction.
Consideration has been given to the factors in favour of release, but due to the seriousness of the offence these must be particularly compelling to outweigh the above, therefore it is considered that detention for the purposes of deportation is reasonable.
C5.6 Permission to proceed, and the 18 June detention review
It is considered that the factors above outweigh the presumption in favour of release and that his detention remains both appropriate and proportionate in the interests of Public Policy (Security or Health) and the maintenance of effective immigration control. Detention authorised for a further 28 days.
C5.7 The 16 July detention review and monthly progress report
Although his appeal/JR are outstanding, he can be removed within a reasonable timescale once he becomes appeal rights exhausted. Therefore, based on his high risk of absconding and medium risk of harm it is proportionate to maintain detention for a further 28 days.
C5.8 Grant of bail on 21 July
C5.9 The 23 July notice of restriction
C6. Events from September 2015 onwards
C6.1 Hearing, and outcome, in the FTT
C6.2 The Home Secretary's application for permission to appeal
D. Challenges to the EEA Regulations & the policy
D1. EEA Regulations & written policy: introduction
D2. Reg 24 AA: The reasons complaint
62. The purpose of article 31 of the Directive is to ensure procedural safeguards, particularly the right of judicial redress against an expulsion decision. Article 31 permits member states to remove individuals temporarily pending redress, but does not mandate it. Interim removal measures do not constitute part of the Directive's "result to be achieved", and are therefore not binding on any member state.
63. The explanatory note to the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2014, which introduced Regulation 24AA, stated that the new provision "reflects the requirements of article 31(2) of Directive 2004/38/EC". This was not the case.
application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision
applies to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision...
64. Article 296 TFEU requires reasons to be given for all 'legal acts', which include both legislative measures and decisions affecting an individual. Sufficiently clear and precise reasons must be given to enable the legality of the measure in question to be examined: Bank Mellat v Council of the European Union  EUECJ T-496/10.
65. Prior to the enactment of Regulation 24AA, appeals against deportation in EEA cases were suspensory. The enactment of Regulation 24AA therefore marked a wholesale change of approach, for which reasons were required as a matter of EU law. No reasons were given for enacting Regulation 24AA
D3. Reg 24AA: proportionality/unlawful test complaints
appears to have been done for political/deterrent reasons and without reference to the risk actually posed by EEA nationals pending appeal.
The [Home Secretary] has provided no evidence to demonstrate that Regulation 24AA was itself proportionate.
Further, Regulation 24AA wrongly imports a threshold test ('real risk of serious irreversible harm') developed in and intended for human rights law. As set out above, a measure which interferes with free movement rights of EU citizens must be justified by reference to EU law, and must above all comply with the principle of proportionality. Regulation 24AA as enacted purports to reflect requirements in the Directive which are in fact not requirements, and does so without reference to relevant principles of EU law or the requirements in the Directive.
D4. Reg 24AA: the effective remedy complaint
67. Article 47 of the EU Charter of Fundamental Rights & Freedoms provides for a right to an effective remedy before an independent and impartial tribunal in the vindication of fundamental EU rights (such as the right to free movement). Regulation 24AA places the removed individual at a significant disadvantage compared to the respondent Secretary of State in preparing for his appeal, in breach of Article 47, Article 6 ECHR, and common law principles of fairness.
50. We agree with that last submission. As was noted by the Court of Justice of the European Union in Case C-249/13 Khaled Boudjlida at :
"... it is... in accordance with the Court's settled case law that ... fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (the judgments in Alassini and Others, C-317/08 to C-320/08, EU:C2010:146, paragraph 63; G and R, EU:C:2013:533, paragraph 33; and Texdata Software, C-418/11, EU:C:2013:588, paragraph 84)".
51. In order to see where the balance is to be struck in cases of this kind, one looks to the provisions of the Directive. There, as we have noted, the relevant appeal rights are non-suspensive. However, in cases covered by Article 31 (which, we emphasise, does not include the applicant's type of EEA appeal), the persons concerned have a qualified right of re-entering in order to submit a "defence in person". The scheme of the Directive is, we find, entirely compatible with Article 47 of the Charter. Article 47 does not necessitate the wholesale conferring of suspensive rights of appeal against any EEA decision.
36. That difference might be said to suggest that it would be proper to restrict the proper ambit of regulation 24AA to cases where there was a particularly strong reason to certify notwithstanding that an affected person would in any event have a right to return to be present at their hearing. It seems to us that there are two responses fatal to that suggestion. The first is one we have highlighted already. The EU legislature has expressly permitted states, subject to judicial supervision, to have the power to remove persons pending their appeal. Article 31(1) makes that clear, as does the Commission's Explanatory Memorandum, Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2001/0257 Final - COD 2001/0111 *. In commenting on Article 29 of this document states:
"Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse. The judgment of national courts can be relied on to ensure that the interests of both the individual concerned and the Member States are adequately protected."
37. We accept Ms Smyth's submission that in this respect the EU institutions were concerned to give legislative effect to the judgment of the Court of Justice in Case C 98/79 Pecastaing v Belgium, in which the applicant challenged an order that she leave Belgian territory whilst she had a pending action against the Belgian authorities for refusing her a residence permit. At  the Court set out the text of Article 8 of Directive 64/221 which states:
"9. According to Article 8: The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration."
38. At - it concluded:
"12. On the other hand Article 8 contains no specific obligation concerning any suspensory effect of applications available to persons covered by the directive. If that provision requires that the person concerned should be able to appeal against the measure affecting him it must be inferred, as the Court stated in its judgment in the Royer case (paragraph 60 of the decision), that the decision ordering expulsion may not be executed - save in cases of urgency - before the party concerned is able to complete the formalities necessary to avail himself of the remedy. However, it cannot be inferred from that provision that the person concerned is entitled to remain on the territory of the State concerned throughout the proceedings initiated by him. Such an interpretation, which would enable the person concerned unilaterally, by lodging an application, to suspend the measure affecting him, is incompatible with the objective of the directive which is to reconcile the requirements of public policy, public security and public health with the guarantees which must be provided for the persons affected by such measures.
13. Accordingly, the reply to be given to the questions submitted must be that Article 8 covers all the remedies available in a Member State in respect of acts of the administration within the framework of the judicial system and the division of jurisdiction between judicial bodies in the State in question. Article 8 imposes on the Member States the obligation to provide for the persons covered by the directive protection by the courts which is not less than that which they make available to their own nationals as regards appeals against acts of the administration including, if appropriate, the suspension of the acts appealed against. On the other hand there may not be inferred from Article 8 an obligation for the Member States to permit an alien to remain in their territory for the duration of the proceedings, so long as he is able nevertheless to obtain a fair hearing and to present his defence in full."
D5. The blanket policy complaint
3.2 The Government's policy is that the deportation process should be as efficient and effective as possible. Case owners should therefore seek to apply regulation 24AA certification in all applicable cases where doing so would not result in serious irreversible harm.
(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.
34 The central provision in section 94B of the 2002 Act is subsection (2): the power to certify arises only:
"if the Secretary of State considers that removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 " (Emphasis added.)
In other words, the Secretary of State cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of any of the person's Convention rights as set out in Schedule 1 to the Human Rights Act 1998.
35 By subsection (3), a ground for certification is that the person would not, before the appeals process is exhausted, face "a real risk of serious irreversible harm" if removed to the country or territory to which he or she is proposed to be removed. That ground does not, however, displace the statutory condition in subsection (2), nor does it constitute a surrogate for that condition. Even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers, in accordance with subsection (2), that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act 1998. That the risk of serious irreversible harm is not the overarching test was rightly accepted by Lord Keen on behalf of the Secretary of State at the hearing of the appeal.
36 It follows that the Secretary of State's guidance on section 94B is inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm in subsection (3) and failing to focus on the central provision in subsection (2).
D6. Travel costs policy complaint
D7. Unlawful policy considerations
the Defendant's policy is motivated by general political/economic considerations ("the deportation process should be as efficient and effective as possible"). The Claimant submits that it is difficult to see how a blanket policy of interim removal (with an automatic right of re-entry in most cases) can contribute to the efficiency or effectiveness of the deportation system, unless the Defendant's intention is to deprive EU citizens of a practical and effective right of redress.
E. Pre-redress exclusion of X under Reg 24AA
E1. Pre-redress exclusion of X: introduction
[55.1] Under regulation 24AA of the 2006 Regulation the Secretary of State may certify that, despite the appeals process not having been begun or not having been finally determined, the person's removal would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). [55.2] The grounds upon which the Secretary of State may certify a claim under regulation 24AA(2) include (in particular) where the person would not face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed, not withstanding that the appeal process has not yet begun and/or been exhausted. [55.3] If your case is certified under regulation 24AA then pursuant to regulation 29 you will be removed to the country or territory to which it is proposed that you [be] removed notwithstanding that the appeal process has not yet begun and/or been exhausted.
[56.1] Consideration has been given to whether your case should be certified under regulation 24AA of the 2006 Regulations. [56.2] The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. [56.3] The Secretary of State does not consider that such a risk exists because you have spent the majority of your life in Romania and have only lived in the United Kingdom for six years. [56.4] Therefore it has been decided to certify your case under regulation 24AA.
E2. The "real risk of serious irreversible harm" test
E3. Compliance with domestic law principles
59. the claimant submits that the certification decision was Wednesbury irrational in domestic law. The certification decision was not justified by the risk posed by the Claimant. The Defendant failed to consider evidence as to the Claimant's voluntary work with the Salvation Army, or to give any weight to the Claimant's lack of offending in the UK. It is difficult to see how it could be rational to deport the Claimant for the short period until his Tribunal appeal, in circumstances where he has a strong appeal and poses no risk in the UK.
E4. Compliance with the Home Secretary's policy
56. certification of the Claimant's case was contrary to the Defendant's own published policy. The policy guidance indicates that certification should not be applied where an individual has acquired a right of permanent residence and has not been sentenced to a period of imprisonment of at least four years.
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years.
Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there.
F. Complaints about detention
F1. Detention: introduction
(1) A declaration that he has been unlawfully detained since 23 March 2015;
(2) Damages, including aggravated damages;
F2. Stage 2: 24 March to 23 April 2015
(1) The notices prepared in November and December 2014, and the 20 March notice, all said at  that "full account" had been taken of X's immigration status, yet at  they said it was not known if he had been exercising treaty rights apparently in ignorance of his student registration under the transitional scheme. (See sections C3 and C4.1 above.)
(2) The same notices said at  that the power to detain arose because X was "liable to deportation under regulation 19(3)(b)", ignoring the need under regulation 24(1) for there to be "reasonable grounds for suspecting" as set out above. (See sections C3 and C4.1 above.)
(3) The signed IS.91 did not describe X as a person in respect of whom there were "reasonable grounds for suspecting" as set out above. It said only that he was a person in respect of whom the Home Secretary "is considering whether there may be reasonable grounds for suspecting " (See section C4.1 above.)
(4) The same occurred at [1.2] of the 24 March letter. (See section C4.3 above.)
(5) The 24 March letter at [3.1] said inaccurately that detention was justified under regulation 19(3)(b), and at [3.2] said also inaccurately that it followed from this that regulation 24(1) applied. (See section C4.3 above.)
You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place. You have not provided information as to whether you have friends or family in the United Kingdom.
(1) the completed form IS.91RA referred to medical "problems/concerns", stating that X had said that he had been alcohol free since 7 April 2014 and that he suffered from depression; and
(2) there were observations in the 24 March detention authorisation (see section C4.2 above) which stated that X had vacated his last known address 6 months previously.
F3. Stage 3: 23 April to 23 July 2015
(1) Paragraph [19.2] noted that X's risk of re-offending was assessed as low. The last sentence of paragraph [19.2], however, added a qualification:
It is noted that X is a recovering alcoholic and this is a factor that may heighten his risk to offend.
(2) This qualification appears to me to be illogical. It noted that X had been an alcoholic. During his period as an alcoholic there had been no re-offending. He was now a recovering alcoholic. I cannot discern any rational basis for thinking that the fact that he was now recovering from alcoholism was a factor that may heighten the risk of re-offending.
(3) I recognise that X's conviction was for an offence of murder. The seriousness of that offence might be such that even a low risk of re-offending could justify a decision to detain. But it is elementary that a conclusion to that effect cannot be reached merely from the fact of the past conviction. It is necessary to have regard to the period which has passed since the offence was committed, to the conduct of X during that period, and to factors which tend to reduce the risk of re-offending.
(4) In X's case a period of more than 24 years had passed since the offence was committed. The Home Office knew of nothing in his conduct during that period to suggest that there was any risk of re-offending. Moreover, the 20 April representations and the accompanying letters from Mr B and Lt C described conduct on X's part which suggested that the risk of re-offending was very low indeed.
(1) Paragraph [19.3] of the authorising officer's reasons began with an assertion that X has no strong ties in the UK. The assertion is inconsistent with what is said in the 20 April representations and in Lt C's letter. No justification has been given by the Home Secretary in this case for ignoring the details that were given of all that X had done to establish strong links with his community, in particular as part of the process of recovering from alcoholism, and close ties with that community, in particular his "family" in the Salvation Army.
(2) The authorising officer added that X had no one who could exert "influence on him". The assumption seems to be that X would only comply with temporary release/ bail conditions if someone could be relied upon to exert influence to stop him from absconding. Nothing in the material known to the Home Office warranted such an assumption. Even if such an assumption were warranted, however, there was ample evidence that X had responded positively to the influence of others when taking steps in order to engage in his rehabilitation programme, in order to further his education, skills and qualifications, and in order to become an active and committed member of his church.
(3) The second sentence of paragraph [19.3] said:
Whilst in the UK he was admitted into a residential home for vulnerable males with complex needs, due to his vulnerability this should be considered as a factor in his risk to abscond.
(4) The implication appears to be that because X was vulnerable with complex needs there would be an increased risk of absconding. The material supplied to the Home Office, however, suggests the reverse. Far from increasing any risk of absconding the "intensive extensive treatment" at CH had played a vital part in enabling X to integrate into British society.
F4. Stage 1 of detention on 23 March 2016
[X] has been arrested on behalf of the Home Office. Police are happy to keep subject under PACE until [tomorrow morning]