QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of YURI MENDES
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Paul Fisher (instructed by the Government Legal Department) for the Defendant
Hearing date: 11 July 2019
Crown Copyright ©
Mr Justice Murray :
"The Claimant has failed to identify arguable grounds for judicial review of the decision to remove, having regard to the deportation order made as long ago as September 2018 and the decision to certify. An ongoing appeal process is not a sufficient reason to defer removal, and as the decision letter explained, an application can be made for temporary re-entry for any hearing."
"The Secretary of State has directed that you be removed from the United Kingdom
You must report to the Immigration Office at Heathrow TN2 for the 11.20am flight"
i) to certify under regulation 33 of the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations") that his removal from the UK to Portugal would not be unlawful under section 6 of the Human Rights Act 1998 ("the Regulation 33 Certification");
ii) to detain him under immigration legislation; and
iii) to remove him from the UK on a flight to Lisbon on 2 July 2019.
Mr Mendes's offending history
i) On 21 November 2015 he was convicted at Manchester and Salford Juvenile Court of possession of an article with a blade/sharp point on school premises. For that offence, on 26 November 2015, he was made subject to a 9-month referral order.
ii) On 7 July 2016 at Greater Manchester Juvenile Court, he was convicted of criminal damage and battery. For those offences, on 28 July 2016, he was given a 12-month youth rehabilitation order, with a supervision requirement and an electronically-monitored curfew requirement. He was also ordered to pay compensation of £250 and made subject to a 12-month restraining order.
iii) On 1 September 2016 at Greater Manchester Juvenile Court he was convicted of attempted robbery. For that offence, on 22 September 2016, he was made subject to an 18-month Detention and Training Order ("DTO"), which was subsequently varied on appeal to a 12-month DTO. He was also ordered to pay compensation of £250.
iv) On 12 June 2017 at Greater Manchester Juvenile Court he was convicted of failing to comply with the DTO resulting from his conviction on 1 September 2016. He was fined £30.
v) On 6 March 2018 at Greater Manchester Juvenile Court he was convicted of six counts of robbery and remanded in youth detention accommodation, until he was sentenced on 27 March 2018 to 12-month DTO.
Notice of liability to deport, the Deportation Order and immigration detention
i) (at paras 55 to 79) set out her analysis of Mr Mendes's rights under article 8 of the European Convention on Human Rights (ECHR) and concluded that his deportation would not breach the UK's obligations under article 8 of the ECHR because the public interest in deporting him outweighed his right to private and family life in the UK;
ii) (at paras 81 to 82) advised Mr Mendes of the possibility of voluntary departure from the UK;
iii) (at paras 83 to 85 and 108 to 109) advised Mr Mendes of his rights of appeal to the FTT under regulation 36 of the 2016 Regulations and under section 82 of the Nationality, Immigration and Asylum Act 2002, (at paras 110 and 122) advised him that if his circumstances changed so that he had new reasons or grounds for remaining in the UK, he should notify the Secretary of State as soon as reasonably practicable and (at para 121) advised him of the deadline for appeal, namely, 14 calendar days after service on him of the Decision;
iv) (at para 86) made the Regulation 33 Certification and (at paras 87 to 107) gave reasons for it;
v) (at paras 111 to 120) advised Mr Mendes of his right under regulation 41 of the 2016 Regulations to re-admission to the UK for the purposes of making submissions in person at any appeal hearing; and
vi) (at paras 123 to 128) advised Mr Mendes that if he did not leave the UK voluntarily within one calendar month of the date of service of the Decision his removal would be enforced, that the Deportation Order invalidated any leave to enter or remain in the UK, that he was prohibited from re-entering the UK while the Deportation Order is in force, that if he wished to seek legal advice he "must do so now" and that if he remained in the UK he would be doing so illegally and would be subject to further enforcement action.
The Free Movement Directive and the 2016 Regulations
"(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person ('P') [under regulation 23(6)(b)], in circumstances where –
(a) P has not appealed against the … decision [to remove P under regulation 23(6)(b)], 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) The Secretary of State may 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 2) The Secretary of State may 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 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.
(4) 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 taken, except—
(a) where the removal 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.
(5) In this regulation, 'finally determined' has the same meaning as in Part 6."