Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of Ali HAFEEZ)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
ADVICE ON INDIVIDUAL RIGHTS IN EUROPE (AIRE) CENTRE
Mr David Blundell and Julia Smyth (instructed by Government Legal Department) for the Defendant
Bojana Asanovic ( instructed by AIRE Centre Intervenor (written submissions only))
Hearing dates: 9 October 2019
Crown Copyright ©
MRS JUSTICE FOSTER:
"19. …. There are UK immigration controls relating to (a) entry, (b) restrictions on removal and (c) detention, although this appeal is directly concerned only with detention. At each point there are important differences between the rules which apply to those exercising rights of free movement derived from laws applying to the European Economic Area, which I will call EU law rights, namely EEA nationals and their family members, and those who are not exercising such rights.
20. As to controls on entry, for a non-British citizen not exercising EU law rights, the regime which confers leave to enter and remain in the United Kingdom is governed by the Immigration Act 1971 …
21. By contrast, those exercising EU law rights are not subject to the above regime. They enjoy extensive additional rights, no doubt as a means of promoting the internal market, including the market for labour, as given effect in UK law. By section 7(1) of the Immigration Act 1988, people with directly effective EU rights to enter or remain in the UK, or who enjoy such rights by virtue of any provision made under section 2(2) of the European Communities Act 1972, do not require leave to enter or remain.
"30. It is correctly accepted on behalf of the SSHD that, in contrast to the position described above, those exercising EU rights do not require leave to enter or remain and have the benefit of powerful protections against their expulsion from the UK. The ability of member states to restrict the Treaty rights described above is limited by Chapter VI of the Directive, which is entitled
"RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH"
and comprises articles 27 to 33.
"31. It is clear that EEA residents who fall within the scope of the Directive enjoy powerful rights of residence far beyond those afforded by domestic law. As appears above, the Directive applies three different escalating threshold tests for restriction on rights of free movement as follows. In the case of a person such as the appellant with the right of permanent residence, an expulsion decision must be based on "serious grounds of public policy or public security": article 28(2).
"22. Critical to the construction of the EEA Regulations 2006, including of course regulation 24(1), is the true meaning and effect of the Directive, which consolidates and extends the rights granted by pre-existing secondary legislation and reflects established CJEU case-law. Further, it applies to all of the countries in the EEA.
23. It appears to me that the recitals are of some assistance. Moore-Bick LJ drew attention (at para 6) to the following recitals:
(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the member states …
(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market …
(5) The right of all Union Citizens to move and reside freely within the territory of the member states should, … be also granted to their family members, irrespective of nationality …
(20) In accordance with the prohibition of discrimination on grounds of nationality, all Union Citizens and their family members residing in a member state on the basis of this Directive should enjoy, in that member state, equal treatment with nationals in areas covered by the Treaty …"
24. Article 1 explains that the Directive lays down the conditions governing the exercise of the right of free movement and residence by Union Citizens and their family members, the right of permanent residence and the limits placed on the rights set out above, on grounds of public policy, public security or public health.
"26. In short, so far as leave to enter and remain are concerned, those exercising EU rights have much greater rights than those not exercising such rights but are subject to immigration control. The same is true so far as restrictions on removal and deportation are concerned. For example, a person subject to immigration control who has leave to remain may be liable to deportation or removal under a number of statutory provisions, namely sections 3(5)(a), 3(5)(b) and 3(6) of the Immigration Act 1971 and section 32 of the UK Borders Act 2007. …
27. A person who is not a British citizen (and not exercising EU law rights) is liable to deportation under the Immigration Act 1971 where (a) the SSHD determines that his or her deportation is conducive to the public good: section 3(5)(a) ; or (b) another person to whose family he belongs is or has been ordered to be deported: section 3(5)(b) ; or (c) after attaining the age of 17 he has been convicted of an offence punishable by imprisonment and on his conviction the judge recommended deportation: section 3(6). The power to make deportation orders is contained in section 5 of the 1971 Act.
28. In addition to those powers of deportation, the UK Borders Act 2007 introduced automatic deportation for certain "foreign criminals". Section 32(5) of that Act provides that the Secretary of State "must make a deportation order in respect of a foreign criminal". The regime of automatic deportation is, however, subject to certain exceptions set out in section 33 of the 2007 Act including, inter alia, where removal of the foreign criminal would breach that person's rights under EU Treaties (section 33(4)) and where deportation would breach a person's Convention rights or the UK's obligations under the Refugee Convention (section 33(2)).
"Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health."
1. Subject to the provisions of this Chapter, member states may restrict the freedom of movement and residence of Union Citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
3. The personal conduct of the individual concerned must represent a genuine, 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 the considerations of general prevention shall not be accepted."
1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union Citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security
3. An expulsion decision may not be taken against Union Citizens, except if the decision is based on imperative grounds of public security as defined by member States, if they
(a) have resided in the host Member State for the previous ten years; or
are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989
19. Article 30 contains notification provisions concerning decisions. It provides materially for present purposes as follows:
3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of the notification"
1.The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures of the host member state to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.
2.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 previous access to judicial review; or
where the expulsion decision is based on imperative grounds of public security under Article 28(3).
3.The redress procedure 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 should ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.
4.Member states may exclude the individual concerned from their territory pending the redress procedure, they may not prevent the individual from submitting his/her defence in person, except where his/her appearance may cause serious troubles to public policy or public security or where the appeal or judicial review concerns a denial of entry to the territory.
Persons excluded on grounds of public policy or public security may submit an application for lifting of the expulsion order after a reasonable period, depending on the circumstances and in any event within three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.
Expulsion as a penalty or consequence
1.The expulsion orders may not be issued by the host member state as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29.
2.If an expulsion order, as provided for in Paragraph 1, is enforced more than two years after it was issued, the member state shall check that the individual concerned is currently and genuinely a threat to public policy or public security and shall assess whether there has been any material change in the circumstances since the expulsion order was issued."
"23 Exclusion and removal from the United Kingdom
(1) A person is not entitled to be admitted to the United Kingdom by virtue of Regulation 11 if the refusal to admit that person is justified on grounds of policy, public security or public health in accordance with Regulation 27.
(2) A person is not entitled to be admitted to the United Kingdom by virtue of Regulation 11 if that person is subject to a deportation or exclusion order, except where the person who is temporary admitted pursuant to Regulation 41.
"(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered into the United Kingdom may be removed if –
(a)That person does not have or ceases to have a right to reside under these Regulations;
(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 27; or
(c) The Secretary of State has decided that the person removal is justified on grounds of misuse of rights under Regulation 26(3)."
Regulation 33 provides:
"(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person ("P") to whom regulation 32(3) applies, in circumstances where—
(a)P has not appealed against the EEA decision to which regulation 32(3) applies, 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, pending the outcome of P's appeal, would not be unlawful under section 6 of the Human Rights Act 1998(1) (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."
"27(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health."
""EEA decision" means a decision under these Regulations that concerns-
a person's entitlement to be admitted to the United Kingdom;
a person's entitlement … to be issued with or have renewed, or not to have revoked, a registration certificate [etc.]
a person's removal from the United Kingdom; or
the cancellation … of a right to reside …
But does not include a decision to refuse to issue a document under regulation 12(4) (issue … a right to reside: material change of circumstances), or any decisions under Regulation 33 (human rights considerations and interim orders to suspend removal) or 41 (temporary admission to submit case in person) …"
29. The SSHD's policy in this area is contained in Guidance entitled "Regulations 33 and 41 of the Immigration (European Economic Area) Regulations 2016; Version 6 August 2017."
30. Mr Drabble QC takes issue with certain paragraphs of the current Guidance on Regulation 33 and section 94B certifications. The relevant parts read as follows:
…certifications under regulation 33 differ significantly from certifications under section 94B. A critical difference is the fact that regulation 41 of the EEA Regulations 2016 allows a person to apply to be temporarily admitted to attend their appeal hearing. It is therefore possible for a person whose case is certified under regulation 33 to provide oral testimony in person at their appeal Lord Wilson noted this particular difference between section 94B and regulation 33 in paragraph 62 of his judgment in Kiarie and Byndloss.
There are other key differences between regulation 33 and section 94B certifications. An appeal under regulation 33 of the EEA Regulations 2016 can be commenced while the person is in the UK and therefore a person can consult their UK legal advisers before any appeal hearing. Furthermore, individuals have 30 days to leave the UK voluntarily, unless one of the exceptions in regulation 32(6) applies, which means they can also use that time to prepare evidence for an appeal. Therefore, the Supreme Court judgment in Kiarie and Byndloss does not undermine the application of regulation 33.
In R (OO) (Nigeria) v SSHD  ECWA 338 the Court of Appeal confirmed the Secretary of State's position in respect of certification under section 94B. These principles also apply to certification under regulation 33. The Court's findings in OO(Nigeria) specifically included the following points [the Court]
- rejected the contention that the public interest in certification is connected with the merits or otherwise of the underlying appeal (from the deportation order) - rather, it accepted that the public interest 'is essentially the same as that underlying the provisions about deportation generally, namely that foreign criminals should in principle be removed from the UK as soon and as efficiently and effectively as they can be' [paragraph 37]
- agreed that there is no general duty on the Secretary of State (SoS) to proactively investigate the position of children. Rather, it is for the appellant to provide information on their family life, including the effect of removal on any children: 'It should not be necessary for the SoS to make separate enquiries as to the position of any child'. The Court goes on to state that if the SoS is not satisfied 'that all has been said that might be' about the interests of a child, she
- might be obliged to make further enquiries, but confirms that these will generally be limited – 'normally the enquiry would in the first place be of the potential deportee's representatives' [paragraph 39]
- rejected the argument that the fact that removal pending appeal would result in the loss of Indefinite Leave to Remain (ILR) was relevant [paragraph 45]
- rejected the argument that a number of cumulative factors were required in order to override the best interests of a relevant child, concluding that 'it seems ...that to prescribe the operation of the balancing exercise as requiring more than one factor to be put in the opposite scale from the best interests of the children would be altogether formulaic and inappropriate' [paragraph 51]
- accepted that 'a case based on the best interests of an affected child... would be much more powerful if it were supported by evidence showing some specific reason why the child would suffer during a period of interim removal, by itself evidence that the child would suffer from separation from the parent risks being too general, and too commonplace, to prevail over the public interest in removal' [paragraph 61]
… and held that
- When considering [human rights procedural protection], it is important to reflect on the Supreme Court's reasoning in Kiarie and Byndloss, and, in particular, paragraphs 60 to 78. In paragraph 76, Lord Wilson concluded that for a human rights appeal to be effective the individual 'would need at least to be afforded the opportunity to give live evidence'. A person certified under regulation 33 will, other than in exceptional cases (see re-entry to attend appeal in person), be able to request a return to the UK for their hearing. This means that Lord Wilson's primary concern should not arise. However, there may be other procedural issues in an individual case that mean interim removal would render the procedure ineffective or unfair."
DISCUSSION and ANALYSIS
"… 23. As in the case of other principles of public law, the way in which the principle of proportionality is applied in EU law depends to a significant extent upon the context. This summary will range beyond the type of case with which this appeal is concerned, in order to demonstrate the different ways in which the principle of proportionality is applied in different contexts…"
"31. Where the proportionality principle is applied by a national court, it must, as a principle of EU law, be applied in a manner which is consistent with the jurisprudence of the court: as is sometimes said, the national judge is also a European judge.…"
"… 34. It is however important to avoid an excessively schematic approach, since the jurisprudence indicates that the principle of proportionality is flexible in its application." …
"36. As a generalisation, proportionality is a ground of review of EU measures is concerned with the balancing of private interests adversely affected by such measures against the public interest which the measures are intended to promote. Proportionality functions in that context as a check on the exercise of public power of a kind traditionally found in public law."
"Member States may exclude the individual concerned from their territory pending the redress procedure. "
"The proposal also sets out to provide a tighter definition of the circumstances under which the right of residence right of the Union Citizens and their family members may be restricted... In addition, the introduction of new provisions drawing on the concept of fundamental rights will provide Union Citizens with greater safeguards in dealings with both administrative authorities and the courts concerning decisions restricting their fundamental right of movement and residence…"
Assistance from the Case law
"9. Article 2 of Directive No. 64/221 states that the Directive relates to all "measures" (dispositions, Vorschriften, provvedimenti, bestemmelser, voorschriften) concerning entry into the territory, issue or renewal of residence permits or expulsion from their territory taken by member states on grounds of public policy, public security or public health.
10. Under paragraphs (1) and (2) of article 3 of that Directive, "measures" (mesures, Massnahmen, provvedimenti, forholdsregler, maatregelen) taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned and previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.
14. The different language versions of a Community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part.
15. By co-ordinating national rules on the control of aliens, to the extent to which they concern the nationals of other member states, Directive No. 64/221 seeks to protect such nationals from any exercise of the powers resulting from the exception relating to limitations justified on grounds of public policy, public security or public health, which might go beyond the requirements justifying an exception to the basic principle of free movement of persons.
16. It is essential that at the different stages of the process which may result in the adoption of a decision to make a deportation order that protection may be provided by the courts where they are involved in the adoption of such a decision.
17. It follows that the concept of "measure" includes the action of a court which is required by the law to recommend in certain cases the deportation of a national of another member state.
20. As regards the second aspect of the first question, the Government of the United Kingdom submits that a mere recommendation cannot constitute a "measure" within the meaning of article 3 (1) and (2) of Directive No. 64/221, and that only the subsequent decision of the Secretary of State can amount to such a measure.
21. For the purposes of the Directive, a "measure" is any action which affects the right of persons coming within the field of application of article 48 to enter and reside freely in the member states under the same conditions as the nationals of the host state.
22. Within the context of the procedure laid down by section 3 (6) of the Immigration Act 1971, the recommendation referred to in the question raised by the national court constitutes a necessary step in the process of arriving at any decision to make a deportation order and is a necessary prerequisite for such a decision.
23. Moreover, within the context of that procedure, its effect is to make it possible to deprive the person concerned of his liberty and it is, in any event, one factor justifying a subsequent decision by the executive authority to make a deportation order.
24. Such a recommendation therefore affects the right of free movement and constitutes a measure within the meaning of article 3 of the Directive."
"36. It should be recalled that, under article 31(4) of Directive 2004/38, Member States may exclude the individual concerned from their territory pending the redress procedure against a measure restricting his rights under that Directive. However, a person subject to such a measure may ask to be heard in person by the competent court. It might be possible to argue that, during the redress procedure, the presence of the individual concerned must therefore be permitted to ensure that he receives a fair hearing and is able to present all his grounds of defence.
37. By contrast, under article 32(2) of Directive 2004/38, persons subject to an exclusion order have no right of entry to the territory of the member state concerned while their application for lifting of the order is being considered."
"77. Directive 2004/38 lays down a number of procedural rules with which Member States must comply if they are to restrict the Union the Citizens' right of residence, namely those set out in articles 30 and 31. However that Directive does not contain provisions on the detailed rules governing administrative and judicial proceedings relating to decisions terminating the right of a Union citizen to reside in the territory of the host state. According to the court settled case law, in the absence of EU rules on the matter, it is for the national legal order of each member state to establish such detailed rules, ensuring however, that they are no less favourable than the rules governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness)…"
[AG]"51. …. I observe that article 27 of Directive 2004/38 appears in Chapter VI of that Directive, entitled "Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health". It may therefore be thought that this article concerns only measures restricting the rights conferred on Union Citizens. If we were to accept that interpretation of the scope of article 27 of Directive 2004/38—as the United Kingdom Government did, which stated in its written observations that a decision following upon an exclusion order "does not of itself constitute a measure for the purposes of article 27(2), or … for the purposes of article 28 [of Directive 2004/38]"—it would follow that the 2014 return decision, despite its nature which assimilates it to the 2011 decision, does not fall within the scope of article 27 of Directive 2004/38. It would therefore be a matter for domestic legislatures to adjust all of the rules relating to measures following upon an exclusion order.
52 I am not persuaded by that approach.
53 First, article 27 of Directive 2004/38 was given quite a broad scope. The initial draft wording of article 27(1) of that Directive, which referred only to "decisions whereby Union Citizens and their family members … are refused entry or expelled", was amended during the proposal's legislative passage so as to cover "all types of decision restricting freedom of movement", namely "all types of measure—removal, refusal of leave to enter the territory and refusal to leave".
54 Secondly, it should be recalled that the wording of article 27 of Directive 2004/38 does not simply and exclusively cover measures restricting "rights" under that Directive, but encompasses, in more general terms, all measures restricting "the freedom of movement and residence".
55 Thirdly, the provisions of Chapter VI of Directive 2004/38 also concern persons whose rights of entry or residence have previously been restricted by a measure validly taken in accordance with EU law: see article 32(1) and article 33(2) of Directive 2004/38.
56 In the light of the foregoing reasoning, I consider that a return order following upon an exclusion order falls within the scope of article 27 of Directive 2004/38. Nevertheless, I take the view that the adoption of such a measure does not require a prior examination of the continued existence of the reasons which justified the adoption of the exclusion order."
"12 … it cannot be inferred [from the relevant part referring to suspensory effect] … of Directive 64/221 that the person concerned is entitled to remain on the territory of the State concerned throughout the proceeding initiated by him.
"Such an interpretation, which would enable the person concerned unilaterally, by lodging an application, to suspend the measure effecting 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 question submitted must be that … 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."
"Member States may exclude the individual concerned from their territory pending the trial, but they may not prevent the individual from appearing in person at the trial".
The commentary on this particular piece of proposed text states:
"Paragraph 5 allows the member state to exclude the individual concerned for their territory pending the hearing, while ensuring the individuals presence in person at the hearing and protecting their fundamental right to a fair trial (Court of Justice judgment in Pecastaing paragraph 13)".
"4. In deciding to make deportation orders against them, the Home Secretary rejected the claims of Mr Kiarie and Mr Byndloss that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights ("the Convention"). Mr Kiarie and Mr Byndloss have a right of appeal to the tribunal against her rejection of their claims and they propose to exercise it. But, when making the deportation orders, the Home Secretary issued certificates, the effect of which is that they can bring their appeals only after they have returned to Kenya and Jamaica."
5. As I will explain in paras 33 and 55, it may well, for obvious reasons, be difficult for Mr Kiarie and Mr Byndloss to achieve success in their proposed appeals. But the question in these proceedings is not whether their appeals should succeed. It is: are the two certificates lawful?"
93. The Kiarie case records the relationship between the domestic provision, section 94B governing all foreign national offenders inserted into the Immigration Act 2002, and the predecessor of the Regulations namely SI 2006/1003. At paragraph 62 Lord Wilson with whom the majority agreed said
"62. When the power to certify under section 94B was inserted into the 2002 Act, an analogous power was inserted into the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) ("the 2006 Regulations"), now recently replaced. Regulation 24AA (2) enabled the Home Secretary to add to an order that an EEA national be deported from the UK a certificate that his removal pending any appeal on his part would not be unlawful under section 6 of the 1998 Act. But regulation 24AA (4) enabled him to apply "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 …
It is also worthwhile to note that, even if an EEA national was removed from the UK in advance of his appeal, he had, save in exceptional circumstances, a right under regulation 29AA of the 2006 Regulations (reflective of article 31(4) of Directive 2004/58/EC) to require the Home Secretary to enable him to return temporarily to the UK in order to give evidence in person to the tribunal.
"63. The Home Secretary submits to this court that the fairness of the hearing of an appeal against deportation brought by a foreign criminal is highly unlikely to turn on the ability of the appellant to give oral evidence; and that therefore the determination of the issues raised in such an appeal is likely to require his live evidence only exceptionally. No doubt this submission reflects much of the thinking which led the Home Secretary to propose the insertion of section 94B into the 2002 Act. I am, however, driven to conclude that the submission is unsound and that the suggested unlikelihood runs in the opposite direction, namely that in many cases an arguable appeal against deportation is unlikely to be effective unless there is a facility for the appellant to give live evidence to the tribunal."
57. On an appeal against a deportation order the overarching issue for the tribunal will be whether the deportation would be lawful. But, if the certificate under section 94B is lawful, the appellant will already have been deported. In determining the overarching issue the tribunal will be likely to address in particular the depth of his integration in United Kingdom society and the quality of his relationships with any child, partner or other family member: see para 55(a)(b) above. But, were the certificate under section 94B is lawful, his integration in United Kingdom society would already have been cut away; and his relationships with them ruptured.
58. Statistics now produced by the Home Secretary, which the claimants consider to be surprisingly optimistic, suggest that an appeal brought from abroad is likely to be determined within about five months of the filing of the notice. So, by the time of the hearing, an appellant, if deported pursuant to a certificate, will probably have been absent from the United Kingdom for a minimum of five months. No doubt the tribunal will be alert to remind itself of its duty to set aside the deportation order and thus to enable an appellant to re-enter the United Kingdom if his human rights were so to require. But, by reason of his deportation pursuant to a certificate, his human rights are less likely so to require! It is one thing further to weaken an appeal which can already be seen to be clearly unfounded. It is quite another significantly to weaken an arguable appeal: such is a step which calls for considerable justification. The Home Secretary argues that, by definition, the foreign criminal will have been in prison, perhaps also later in immigration detention, in the United Kingdom and so he will already have suffered both a loosening of his integration, if any, in United Kingdom society and, irrespective of any prison visits, an interruption of his relationship with family members. I agree; but in my view the effect of his immediate removal from the United Kingdom on these two likely aspects of his case would probably be significantly more damaging than that of his prior incarceration here.
23. As I discerned them, the essential steps in Ms Dubinsky's argument on this question of principle came to this. (1) The claimant could be the subject of a deportation (expulsion) decision on grounds of public policy or public security: see article 28(1) of the Citizens' Directive. (2) Immigration detention pending or following a deportation decision is a "restriction of movement [or] residence", itself permissible on grounds of public policy or public security for the purposes of article 27(1) of the Directive. (3) Such detention is also a "measure" taken on grounds of public policy or public security, for the purposes of article 27(2). (4) It follows, by reason of article 27(2), that such immigration detention is lawful only if it meets the article 27(2) standards. (5) The article 27(2) standards are applicable in law to a decision to detain, albeit that they are applied under the domestic implementing Regulations only to a "relevant decision", being an "EEA decision" ("a decision … that concerns … a person's removal from the United Kingdom"): see regulation 21(5) and regulation 2(a) of the 2006 EEA Regulations. (6) The "principle of proportionality" applicable to a decision to detain, which limits the recognised right to liberty, requires that the action be "necessary", this being (a) part of the recognised general EU test of proportionality ( R (Lumsdon) v Legal Services Board  AC 697 , para 33); (b) part of the standard articulated in the Charter of Fundamental Rights of the European Union ( OJ 2010 C83 , p 389) ("the CFR") ( article 52(1) , here with article 6(1) ) applicable to a member state when implementing EU law (article 51(1) of the CFR; Lumsdon's case, para 48); and (c) recognised in the case law of the Court of Justice of the European Union in the context of national measures derogating from fundamental freedoms ( Lumsdon's case, paras 50–51 and 55) and in the specific context of article 27(2) …"
"34. Having regard to the context and objectives of Directive 2004/38 —promoting the right of nationals of EC Member States and EFTA States and their family members to move and reside freely within the territory of the EEA States—the provisions of that directive cannot be interpreted restrictively …"
" 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. "
"….The second criticism is that EU law was broken when regulation 24AA was introduced without an express provision to ensure that action taken under it was required to comply with the principles set out in regulation 21 .
118. This second criticism is not one that I find easy to resolve. It concerns general principles of EU law and the specific principles set out in chapter VI of the Citizens' Directive
119. My conclusion in section E below is that the action taken by the Home Secretary under regulation 24AA against X was unlawful for reasons entirely independent of this second criticism. In these circumstances I do not need to resolve whether the correct analysis of this second criticism is that put forward by the Home Secretary or that put forward by X – or some other analysis."
"it is for the national court… to provide… the legal protection which individuals derive from European Union law at… Dis-applying if need be any provision of national legislation contrary to that principle."