THE DEPUTY JUDGE:
Introduction
- At the heart of this judicial review case is the concept of what I shall call "EEA deportation" and an "EEA deportation order". That species of deportation order is defined in Regulation 2(1) of Immigration (European Economic Area) Regulations 2006 ("The 2006 Regulations"). Those Regulations were made by the Secretary of State, in the main pursuant to section 2(2) of European Communities Act 1972, giving effect to the Citizens Directive, that is Directive 2004/38/EC. As to their appeal provisions, the 2006 Regulations were made pursuant to section 109 of the Nationality, Immigration and Asylum Act 2002.
- Under the scheme of the 2006 Regulations, an EEA deportation involves several interlocking components. Viewed from the perspective of the executive and its role, those components include: first, a decision that removal is justified; second, the making of a deportation order; third, the action of removal; and, fourth, the question of continuing exclusion from the United Kingdom as the consequence in law of the order for so long as the order is maintained. Alongside those components, there are other key features of the statutory scheme. They include: first, revocation of a deportation order; second, human rights challenges to the executive action and its consequences; and, third, the question of statutory appeal. There are many other features of this complicated regime and I will need to come back to several of them.
Factual overview
- The claimant in this case is a Portuguese national who arrived in the United Kingdom with his partner on 15 July 2010. On 12 February 2011, their son was born. On 8 July 2011, the Secretary of State made an EEA deportation order in circumstances where the claimant had been convicted of various offences, including, theft, handling of stolen goods, and robbery. The claimant was detained: first, in connection with criminal process, having been arrested on 5 May 2011; then, subsequently, pursuant to the sentence of the criminal court from 1 August 2011; and finally in immigration detention having served his criminal sentence, from (according to the detention reviews) 4 November 2011. The immigration detention, another feature of the EEA deportation regime is detention pursuant to the relevant provisions of Schedule 3 of the 1971 Immigration Act (see Regulation 24(3) of the 2006 Regulations).
- The claimant had pursued an in country appeal. On 26 September 2012, the Upper Tribunal dismissed his appeal, upholding the determination of the First Tier Tribunal who had also dismissed the claimant's appeal. The First Tier and Upper Tribunals examined the human rights compatibility of the Secretary of State's deportation decisions and the justification for the decisions, which the Secretary of State needed under the 2006 Regulations and had found were satisfied in this case. I say "decisions" because technically it seems to me that both the first feature of the regime, the decision that removal is justified, and the second feature, the deportation order, were and are potentially relevant in the context of the statutory appeal, although the appeal is framed as one which arises against the deportation order. In any event, all of the relevant issues were ventilated, against the backcloth of the circumstances as they were in this case at the relevant times, and the appeals were dismissed.
- At that stage, the claimant and his partner were still together, and she had expressly stated the wish and intention to accompany him if he were deported to Portugal. There was therefore no question of any longer term 'rupture' in the family life of parents and son beyond any question of the claimant, were he removed, going ahead to Portugal first so that arrangements could be made to be followed then by his partner and their child.
- On 26 October 2012, the Secretary of State made a further EEA deportation order. In the light of that and the circumstances as they later were, the claimant's solicitors sought a fresh and further decision from the Secretary of State. It is that subsequent position and the change of circumstances relied on that have given rise to several of the questions that arise for me to determine in this case. What happened was this. On 2 January 2013, the claimant's solicitors wrote to UKBA relying, as the relevant legal framework and as the relevant regulation, on Regulation 24A of the 2006 Regulations. Regulation 24A had been inserted by means of a 2009 amendment. It deals with revocation of EEA deportation orders where there is a change of circumstances. The claimant's solicitors relied on a material change of circumstances, namely that by now, in January 2013, the claimant's partner was clearly stating that she wished to stay in the United Kingdom with their son. I say "wish" because, on my reading of the documents, the evidence did not at that stage go so far as to say that she definitely would not go to Portugal, were the claimant removed, but the evidence indicated that that would put her in a very difficult position. She said that her position had changed. She wished to continue with her life in the United Kingdom, and therefore would be in "a very difficult position as I wish to continue my life in the UK and I will be considering remaining in this country."
- In those materially changed circumstances, said the claimant's solicitors, it would be appropriate for the Secretary of State to exercise her power under Regulation 24A and revoke the deportation order. The 2 January request also called upon the Secretary of State to release the claimant from his immigration detention on the basis that deportation was now no longer imminent, given the need for the Secretary of State to give consideration to the representations that were being put forward. The claimant's solicitors also contended that the claimant was not a person likely to abscond if released and said that, in all the circumstances, he ought no longer to be detained. There were various follow-up communications, including further representations on 21 March 2013.
- UKBA wrote a letter on 28 March 2013 responding to the request for revocation. This short letter explained that UKBA "cannot accept the representations as a request to revoke the deportation order." The reason for that was that regulation 24A(3:
"does not allow someone to whom the EEA Regulations apply to make an application to revoke a deportation while they are in the UK... [and] which makes it clear that an application can only be made when the applicant has left the UK."
Detention was maintained at that stage and, as I shall explain, thereafter.
- On 5 April 2013, judicial review proceedings were commenced in this court. Just over a month later, on 10 May 2013, Stephen Morris QC granted permission for judicial review. The immigration detention was maintained until 20 August 2013, on which date the claimant was released.
- There was then a further change in circumstances. On 2 September 2013, the claimant's solicitors notified UKBA that the relationship between the claimant and his partner had broken down. The consequence of that was that there was now no question of the claimant's partner leaving to go to Portugal, were he removed. She would be staying in the United Kingdom, as would their son.
- In the run up to the substantive hearing of the judicial review, the Home Office decided that it was appropriate to reconsider this case. It issued a new letter, dated 15 November 2013, headed "Supplementary reasons for removal". That letter considered the chronology and the request that had been made for revocation. It maintained that "by law your further representations cannot be treated as an application to revoke a deportation order", referring again to Regulation 24A. The letter went on, explaining that consideration had been given to the claimant's solicitor's representations, and their submission that removing the claimant would breach his article 8 ECHR rights. The letter considered matters such as the claimant's residence, the assessment of threat, the background of the offence, the Article 8 claim, and the submission that there had been a material change in circumstances. It concluded at paragraph 55:
"Taking account of all of the circumstances and the previous judicial assessment of the relevant factors (many of which remain constant) along with the admission that the relationship with your client's former partner is no longer extant, it has been concluded that there would be no breach of article 8 ECHR by upholding the deportation order in this case."
- The letter went on to deal with the question of appeal, and explained that there would be no automatic right of further appeal in the light of provisions in the 2006 Regulations which entitle the Secretary of State to certify a ground previously relied on in an EEA appeal. Referring to Regulation 26(5) the letter explained that:
"the Secretary of State or an immigration officer may certify a ground for the purposes of paragraph 4 [of Regulation 26] if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act".
Having referred to that power to certify a ground previously relied on, the letter concluded at paragraph 57:
"For all the reasons set out above, it is hereby certified that the present decision is one to which section 4(5) Schedule 2 (Regulation 30) of the 2006 Regulations applies. As a result, your client has no further right of appeal whilst in the UK."
I have struggled to understand the reference in that final paragraph to section 4(5) Schedule 2 and to regulation 30. It was common ground between the parties in this case that the relevant certification power arising for consideration by the Secretary of State was that to be found in Regulation 26(4) and (5) and those are the provisions to which the Secretary of State has referred in the penultimate paragraph of the decision letter. I will come back to the Secretary of State's reasons for certification.
- Revised grounds for judicial review were filed on 16 January 2014, and detailed grounds of resistance on 29 January 2014, and this case was argued at a one day substantive hearing before me on 7 February.
The issues
- As crystallised in writing and orally before me, I have to decide three main issues in this case.
(1) Issue 1. Was the claimant entitled in law to make an in-country application for revocation of the deportation order and, if unsuccessful, pursue an in-country appeal against a refusal to revoke the deportation order? On behalf of the claimant, for whom David Chirico and Catherine Robinson appeared and assisted me, it is contended that the claimant was entitled in law to those in-country rights, either because of provisions in the Citizens Directive or because of human rights guarantees in the Human Rights Act.
(2) Issue 2. Was the ongoing immigration detention of the claimant a violation of the familiar common law Hardial Singh principles on the grounds that, before the expiry of a period for detention (for the purpose of deportation) that was reasonable in all the circumstances, it had become apparent that the Secretary of State would not be able to effect deportation within a reasonable period? The claimant's submissions on that point require the legality of the detention to be tested against various dates, namely as follows. 2 January 2013, when the request was made originally by the solicitors. If not that, then 5 April 2013, when the judicial review proceedings were started. Or 14 May 2013, when permission for judicial review was granted. Alternatively, 22 May 2013 and 19 June 2013 which were both the points of time at which detention fell for consideration and review. On behalf of the claimant, it is said that he ought not to have been detained at any of those dates, and if, in relation to any of them, detention could not be justified, then he is entitled to remedies including compensatory, and not merely nominal, damages.
(3) Issue 3. Was the certification in the 15 November 2013 letter legally sustainable?
- I shall need to examine, to some extent as I go along, but in any event at the end of my judgment, how this statutory scheme fits together in the context of changes of circumstances and human rights arguments.
The key provisions at the heart of this case
- In the 2006 Regulations, as amended, the key provisions with which I have been concerned in this case are as follows. First, Regulation 24A which reads:
"A deportation or exclusion order shall remain in force unless it is revoked by the Secretary of State under this Regulation."
On its face, that is an exclusivity provision which provides that the sole and exclusive route for revocation of an EEA deportation order is Regulation 24A.
- Secondly, Regulation 24A(3) which refers to an application which a person subject to a deportation order is entitled to make. The application is described in the previous subparagraph, Regulation 24A(2), and arises:
"if the person considers that there has been a material change in the circumstances that justified the making of the order."
The key provision then in Regulation 24A(3) reads:
"An application under paragraph (2) shall set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom."
That provision, on the face of it, is excluding the possibility of any in country application for revocation of the deportation order. The combined effect of Regulation 24A(1) and Regulation 24A(3) is that on the face of it there could only be a revocation of such an order were an out of country application made, based on a material change in the circumstances.
- Thirdly, Regulation 27(1(b), which follows on from the appeal provisions in Regulation 26. Those provisions deal with appeal against an EEA decision (defined in Regulation 2(1)). The key provision in Regulation 27(1) states:
"A person may not appeal under Regulation 26 whilst he is in the United Kingdom against an EEA decision...
(b) to refuse to revoke a deportation order made against him."
On the face of it, that provision makes clear that no appeal against a refusal to revoke could be made in country. I add at this point that Regulation 19(1A) provides that a person is not entitled to be admitted to the United Kingdom by virtue of Regulation 11 if they are subject to a deportation order.
- Fourthly, Regulation 26(5), which follows on from the previous provision (Regulation 26(4) to which I have already referred) and provides that a person may not bring an appeal under these Regulations on a ground certified under paragraph 5 or rely on such a ground in an appeal brought under these Regulations. The key provision then is Regulation 26(5) which provides:
"The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph 4 if it has been considered in a previous appeal brought under these Regulations or under section 81(1) of the 2002 Act."
On the face of it, that is a provision which permits the Secretary of State to certify a ground such that, whether in county or out of country, the individual concerned would not then be able to pursue an appeal on or relying on that ground.
Issue 1
- The language of Regulation 24A(1) and (3) is uncompromising. However, one need, in my judgment, look no further than Regulation 24(5) to see that there is more to it than meets the eye. Regulation 24(5) is a provision which deals with the situation where an EEA deportation order has been made but where two years later the affected individual has not been removed and is still within the United Kingdom. In those circumstances Regulation 24(5) requires that the Secretary of State shall only take action to remove the person having first assessed whether there has been any material change in circumstances since the deportation order was made, and if the Secretary of State considers that the removal continues to be justified on the relevant grounds.
- In my judgment, it is obvious that that situation would warrant the revocation by the Secretary of State of an EEA deportation order if the Secretary of State were satisfied on that mandatory reassessment that removal were no longer justified. If anything short of revocation took place in those circumstances, the consequence would be the deportation order would remain in force and the statutory provisions concerned with the legal consequences would apply including, as it seems to me, section 5(1) of the Immigration Act 1971, that there would be an order requiring the individual to leave "and prohibiting from entering". One only has to suppose the situation of a holiday abroad to see what the implications would be if a deportation order remained in force against an individual in respect of whom the Secretary of State was now satisfied that it was no longer justified.
- Miss Anderson, for the Secretary of State, accepts that logic, fairly and properly and, in my judgment, correctly. It is important to remember in that context that the mandatory two year review, the duty arising on the Secretary of State under the Citizens Directive, article 33(2). What this illustration does, however, demonstrate is that the apparently uncompromising language of Regulation 24(A) is capable, where necessary, of being read down, and read consistently with the scheme as a whole. And what, in my judgment, goes for EU law must equally go for human rights and the Human Rights Act 1998 and, in particular, any duty that might arise by virtue of section 6 of the Human Rights Act. Again, that is not something that is contested as a matter of principle by the Secretary of State and, in my judgment, rightly so.
- If, therefore, the uncompromising language of Regulation 24A, which describes an exclusive route of revocation under its provisions and requires that an application must be out of country, were incompatible either with EU law or the European Convention on Human Rights, then I would have no hesitation in concluding that that uncompromising effect could not lawfully be visited on a claimant for whom it would be such a violation. Whether by reading in words or reading the provision down, there would in my judgment be no difficulty in arriving at that conclusion. There are no clear words of primary legislation (for the purposes of section 3 of the Human Rights Act) that would mandate the maintenance of the otherwise uncompromising shape of Regulation 24A.
- What arises in the present case is a question as to whether the mere act of removing an individual pursuant to an EEA deportation order, so that they are placed in the position envisaged by Regulation 24A, is of itself a violation of their human rights. It is not difficult to think of examples where that action would plainly be a violation of human rights. The fact that the regulations permit the individual from abroad to apply for the deportation order to be revoked may very well be a good and perhaps a complete answer in most case when considering the implications of the ongoing exclusionary effect of a deportation order. But one can suppose examples of an individual who is not fit to fly, or examples of an individual whose family life will necessarily be harmed by the action of removing them, or by the necessary period of exclusion from the United Kingdom while they make the envisaged out of country application or pursue an out of country appeal. Circumstances of that nature can be envisaged in which that action of itself could constitute a violation of Convention rights. That being so, if Regulation 24A stood alone and were exhaustive of all remedies and rights of the individual, then there would, in my judgment, be an incompatibility with the human rights protections guaranteed by the Human Rights Act. In such a case, as it seems to me, the Secretary of State would only be acting consistently with her statutory human rights duty (under section 6 of the Human Rights Act) where the removal, of itself, could be said to be consistent with and not to violate those applicable human rights. That does lead to two conclusions.
- Firstly, in my judgment, it qualifies the premise for Mr Chirico's discrimination argument, to which I will turn. He accepted that if EEA and non EEA individuals were all subjected to the regime described in regulation 24A and the out of country appeal described in regulation 27(1)(b) then there could be no ground for human rights objection. Viewed in terms of his discrimination argument, that plainly is the correct premise, and he is right to accept it. However, for the reasons I have explained, which, as I understand them, are common ground between the parties, there is room for the need to examine human rights compatibility in-country of an individual who is facing removal in accordance with a deportation order, if a change of circumstances has the consequence that the mere act of removal, or the short term implications of being required to apply out of country, of themselves constitute a violation of human rights. For the Secretary of State, Miss Anderson submits that that analysis explains what the Secretary of State was doing in choosing to examine, in the decision letter of 15 November 2013, the article 8 implications of removal.
- Secondly, the conclusion arises from this analysis that there can be a material distinction between two of the components that I emphasised at the start of this judgment: one, the act of removal, pursuant to a deportation order; the other, the ongoing exclusionary impact of a deportation order. Those plainly can give rise to different considerations.
EU-compatibility
- The claimant's EU-incompatibility argument focuses on article 37 of the Citizens Directive, read with recital 3. This is a temporal argument. It arises because the claimant is able to point to the previous statutory regime, prior to the 2006 Regulations themselves, and prior to the amendment of those Regulations in 2009. The argument is that up until the insertion of 24A(1) and (3), via the 2009 Regulations SI 2009/117, even an EEA claimant would have been entitled to pursue an in-country application for revocation. That is because of the interrelationship between the 1971 Act and the relevant Regulations as they then stood. It is sufficient, for Mr Chirico's purposes on this argument, that prior to the Citizens Directive of 2004 and its implementation by the 2006 Regulations, there was a general provision which enabled a deportee to apply in-country for a revocation of a deportation order.
- Mr Chirico's argument, in those circumstances, runs as follows.
(1) The 2006 Regulations were the domestic implementation of the 2004 Citizen's Directive.
(2) Although the 2004 Directive does not guarantee an in-country application for revocation, nor does it exclude one. Article 32(2) of the Directive is describing the situation where the individual is out of country and a deportation order has been implemented. It provides that such an individual has no right of entry while their application to lift the deportation order, based on a material change of circumstances, is being considered. It does not, says Mr Chirico, exclude the possibility of the Secretary of State considering revocation in-country before the individual has been removed. Nor does the right to a review after two years, if not removed, under article 33(2), exclude the ability to revoke in an appropriate case before a two year period has elapsed.
(3) On the statutory scheme, an in-country application could have been advanced. Section 5(2) of the Immigration Act 1971 provides that a deportation order against a person may "at any time" be revoked by further order of the Secretary of State. As it happens, when the 2006 Regulations came to be made, that position was preserved because regulation 24(3) described the consequences of the underlying regulation 19(3)(b) decision, namely that the relevant provisions of the 1971 Act were to apply and that brought into play section 5(2) until regulation 24A came into being in 2009.
(4) In all these circumstances, it was unlawful for the Secretary of State to remove that pre-existing right of in country application. Article 37 of the Directive is headed "More favourable national provisions," and reads as follows:
"The provisions of this Directive shall not affect any laws, regulations or administrative provisions laid down by a member state which would be more favourable to the persons covered by this Directive."
Recital 3 of the Directive talks about codifying and reviewing the instruments dealing with work as self-employed persons and so on who are nationals of member states exercising rights of free movement and residence and speaks of simplifying and strengthening the right of free movement and residence of Union citizens. I was also referred to Metock v Minister for Justice [2009] QB 318 in the light of article 37 and recital 3.
(5) What the Secretary of State was not entitled to do, in implementing the Directive, was to remove a pre-existing and more favourable protection than the Directive itself mandates.
- That is the argument. I cannot accept it. If it were right, it would constitute an obligation on the state to leave all other provisions intact, free from any adverse change. In my judgment, that is not the effect of article 37 either when viewed in terms of its wording or its evident purpose. Nor does recital 3 or the Metock case make any material difference to what, on its face, article 37 is doing. Article 37, in my judgment, is recognising that in the context of a uniform baseline of minimum standards, the Directive is not to be taken as removing or relied on to support the removal of any other more generous national provision which is maintained in the law of the member state.
- The point can be tested in this way. Article 32(1) provides that a decision on an application to lift an exclusion order for a material change of circumstances shall be reached within six months. If domestic legislation had a four month time limit on the face of the statutory scheme, and if in a given case the Secretary of State had reached the fifth month without making a decision, she would not be able to point to the Directive and its six month provision so as to excuse a breach of the domestic requirement. The four month rule would be a national provision more favourable to persons covered by the Directive, and the Directive could not be taken to have affected it.
- In the same way, in this case, I accept that as at 2008, an EEA deportee was in a position to rely on section 5 of the 1971 Act and make an in-country application for revocation of the EEA deportation order. The Secretary of State would not, in my judgment, have been entitled in 2008 to point to article 32 (which envisages a deportation order being enforced and an application being made based on change of circumstances from abroad) as a basis for denying such an individual such rights as appeared on the face of the domestic provisions as they did at that time. But none of that, in my judgment, is a basis for concluding that the Secretary of State breached EU law when she introduced regulation 24A in 2009.
ECHR-compatibility
- The Claimant's ECHR argument runs as follows.
(1) Under the provisions of the 2006 Regulations as amended, EEA nationals and relevant family members have no right of in-country application or in-country appeal to seek the revocation of an EEA deportation order, based on change of circumstances.
(2) Those who are non-EEA individuals who may have committed criminal offences which are identical in their seriousness, who may pose risk of harm which is identical in its seriousness, and who may in every other relevant respect be directly comparable, have the benefit under the statutory scheme of an in-country application for revocation and an in-country appeal. That point is illustrated by cases such as BA (Nigeria) [2009] UKSC 7 and by considering the factual context of a case such as Mehmet [2011] EWHC 741 (Admin). A directly comparable individual faced with deportation to, say, the United States therefore has guaranteed procedural rights to apply and appeal, in-country. These regulations serve to deny those same rights to EEA nationals and others affected by the EEA Regulations, beyond the narrow human rights removal point which I identified earlier.
(3) In a context where such deportees are advancing human rights arguments - for example that the ongoing exclusion, which the deportation order effects, is incompatible with ECHR article 8 private life or family life - this is a series of measures which fall within the "ambit" of ECHR article 8. If the case falls within the ambit of article 8, then it triggers the equal treatment guarantee of article 14.
(4) The EEA and non-EEA cases are relevantly similar such as to call for a justification of the differential treatment.
(5) "Very weighty reasons" would be required to justify that different treatment given that this is nationality-based discrimination.
(6) And so the question is: can the Secretary of State justify the difference in treatment?
- In advancing that argument, to that stage in the argument, Mr Chirico emphasises the need for a non-technical approach to questions arising under article 14 and, in particular, to questions of comparators. He cited several authorities. They included Ghaidan [2004] UKHL 30, where Baroness Hale at paragraph 134 discussed the 'Michalak questions', as a useful tool of analysis, but which overlap. In particular, said Lady Hale, there is overlap between:
"whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification."
As Lady Hale there pointed out, a rigidly formulaic approach is to be avoided. Then in Carson [2005] UKHL 37, Lord Nicholls, at paragraph 3, emphasising the appropriateness of a simple and non-technical formulation, said the essential question:
"is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny."
At paragraph 31, Lord Hoffmann, spoke of difficulties in the formulation of separate questions which can be artificial, such that there may be:
"a single question: is there enough of a relevant difference... to justify different treatment?
Lord Walker at paragraph 63, again identifying the unsatisfactory nature of a:
"rigid, step by step approach based on comparators... [which may] obscure the real issue in the case which was why the complainant had been treated as she had."
And, finally, also as to comparators, AL (Serbia) [2008] UKHL 42, Baroness Hale at paragraphs 22 to 24, dealing with the particular approach under article 14 to difference of treatment and comparators, and saying this at paragraph 24:
"It will be noted... that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether 'differences in otherwise similar situations justify a different treatment'".
Mr Chirico also emphasises the importance found discussed in the same judgment of Baroness Hale at paragraph 38, of the need to justify not the measure but the difference in treatment.
- I am persuaded by Mr Chirico that this case does fall within the "ambit" of article 8 for the purposes of article 14, discrimination. In my judgment, that is correct as a matter of principle and is supported by authorities which Mr Chirico cites which reflect the role that article 8 has to play in this area and the procedural aspect of article 8. I have in mind in particular his citation of Chikwamba [2008] UKHL 40 in which the House of Lords was concerned with process arrangements and article 8 claims and questions of proportionality and justification. The claimant does not have to show an interference with article 8, still less a violation of article 8 in the restriction of an in-country application and an in-country appeal, but merely that these provisions place the case within the ambit of one of the Convention rights. If, for example, there were different deportation procedures allowing materially different avenues of application and challenge in the case of men and women, in circumstances where those men and women were parents or spouses seeking to advance family life arguments, in my judgment, there would be little difficulty in concluding that that was a situation within the ambit of article 8 so as to trigger a question under article 14.
- I am also persuaded by Mr Chirico that a measure which takes a group of nationalities, here EEA nationals and their family members, and treats it materially differently, is properly to be characterised as differential treatment on grounds of nationality. I do not accept that nationality-based discrimination can in principle only be a measure which focuses on or affects one particular nationality. And although there are clearly limits as to what one can derive from the decision of the Strasbourg Chamber in Moustaquim v Belgium at paragraphs 48 and 49, it is to be noted that that was a case which concerned alleged unjustified differential treatment of a Belgian national on the one hand and citizens of another member state of the European Community on the other. The limits in relying on that authority are obvious. Firstly, it is not concerned with the EEA as against non EEA as a whole. Secondly, as one sees from the report, the respondent government made no observations. The court simply proceeded to examine whether there was an objective and reasonable justification. But it is illustrative. In my judgment, in any event, it is, as a matter of principle, a measure which takes a group of nationalities and treats them more favourably can properly be characterised as differential treatment on the basis of nationality.
- If the matter were free from authority, I would also have accepted Mr Chirico's submission that, in this case, there are sufficiently similar groups in respect of whose differential treatment a justification is called for. I have in mind the passages I have already referred to which emphasise the importance of a non-technical approach. My own view would have been that the questions of differences between EEA and non EEA nationals may more happily belong to the consideration of whether a justification exists, rather than a justification is needed. In any event, those differences plainly would be highly material when the question of article 14 violation is viewed in the round.
- Miss Anderson submits that the point is not free from authority and that it is not open to me to characterise EEA and non EEA groups as analogous for the purposes of nationality discrimination viewed from the perspective of article 14. In support of that submission, she has cited the case of RN (Algeria) reported as Nouazli, first in the High Court (Eder J) [2013] EWHC 567 (Admin) and then upheld in the Court of Appeal [2013] EWCA Civ 1608. That was a case in which nationality discrimination was complained of in circumstances where the EEA and non-EEA statutory schemes dealt differently with the issue of immigration detention, in particular, where an individual was facing the prospect of deportation but no decision had yet been taken. The non-EEA detention powers arose only when a decision had been made, by contrast with the EEA provisions, which permitted detention ahead of the decision being made.
- RN was not an article 14 case, although it could have been. The argument in RN was put on the basis of nationality discrimination infringing article 8 TFEU, in respect of which Mr Chirico has reserved his position in this case for any appeal. The Court of Appeal ultimately held that article 18 of the TFEU was not applicable to the sort of nationality-based discrimination that was being relied on, that is to say, a difference of treatment between EEA and non EEA nationals. But that, in my judgment, was plainly the first in a dual ratio. Two reasons are given for dismissing the discrimination argument at the end of paragraph 29 of Moore-Bick LJ's judgment. And the second of those two reasons is that there were not direct comparators for the purpose of mounting a discrimination argument. As I have said, had I not had the benefit of the judgments in this case, I would have reached a different view from the perspective of article 14. The judgment in the High Court had examined the question of comparators between EEA and non EEA cases for the purposes of a nationality discrimination claim. Eder J had concluded that there was not any relevant disadvantage to EA nationals and their family members or any discrimination in any relevant sense, recognising the extended rights applicable to EEA nationals, and concluding that the suggested comparison exercise had ignored that important aspect and was fundamentally flawed. Moore-Bick LJ at paragraph 29 said this:
"As the judge pointed out, the provision for detention in each case forms part of a wider regime dealing with removal. Unlike nationals of other countries, nationals of the EEA are entitled to reside in this country and enjoy the protection from removal afforded by the Treaty and the Directive. They are subject to a different legal regime which cannot be directly compared to that which applies to other foreign nationals, who can be deported if the Secretary of State deems their removal to be conducive to the public good: see section 3(5)(a) of the Immigration Act 1971."
- In my judgment, Miss Anderson is right to submit that the Court of Appeal clearly reached the conclusion that no relevant comparators could be identified so as to call for justification in the context with which it was concerned. I note that, as both courts in that case recognised, the EEA national was (compared to the non-EEA national) being placed in a materially disadvantageous position as regards detention, and, of course, that was in an anxious context with which the fundamental right of liberty was directly engaged.
- Mr Chirico points out that article 14 was not argued in that case, and that Article 14 cannot simply be assumed to be identical in approach when one is considering questions such as differential treatment and the identification of comparators. Mr Chirico also submitted that RN, being concerned with the pre-decision position of a potential deportee, was itself materially different from the present case. That is because prior to the decision, the EEA national still has the status of freedom of movement which EU law guarantees. On that basis, there was a greater difference prior to the decision, between the EEA and non EEA cases, than there would be post-decision, and therefore a greater difference than in the present case.
- I am unable to accept that any of those submissions liberate me from the very clear reasoning of the Court of Appeal on the question of whether these two groups are in a relevantly comparable position. Although article 14 was not argued in RN, in my judgment there would be no scope for it to flourish in the light of the approach that the Court of Appeal took to the question of comparators. Viewed in terms of the authorities to which I have referred, the reasoning of the Court of Appeal in RN placed the analysis, even for article 14 purposes, squarely within what Lord Nicholls described in Carson at paragraph 3 when he said:
"Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous."
- Even if not strictly falling within the reasoning of the Court of Appeal in RN, I cannot – with the benefit of that reasoning, and given the relevance of that question - accept the claimant's submissions in this case, that there is here a relevant comparator calling for justification.
- If that were wrong and this were a difference in treatment which required to be justified, then, in my judgment, the position would be that the same features emphasised by the courts at both levels in RN would necessarily come into play in the context of justification. And again, in my judgment, with the benefit of the assistance of those authorities, I see no room for a different conclusion in relation to in-county and out of country rights to apply for revocation and appeal, as distinct from questions of detention.
- Because it can be said that the reasons in RN were plainly being relied on there to examine the question of relevantly analogous groups and were not being examined in relation to any question of justification, and so putting the judgments in RN to one side, and accepting Mr Chirico's premises (a) that there is an inequality of treatment calling for justification, and moreover (b) calling for very weighty reasons, I have asked myself whether the claimant's arguments on that basis would lead to the conclusion that there is here a violation of article 14.
- The claimant's case on justification, in essence, is as follows:
(1) This is a differential in treatment which cannot be justified and certainly does not constitute very weighty reasons. There is no feature here, which is a function of the risk posed by the individual deportee which could justify having a different procedural right and being required to leave the country before exercising it. Those affected by deportations are demonstrably not materially different: one can test that by taking serious cases to illustrate how clear the comparison is and that no bright line (see Carson at paragraph 41) could justify the differential procedural measures in this case.
(2) Justification cannot be provided by pointing to other benefits enjoyed by EEA nationals. The question remains whether the material disadvantage is one that can be justified. This cannot be seen as an 'equalising' case, that is to say positive discrimination to reverse the effect of some advantage and yield an overall level playing field.
- The Secretary of State submits that if justification is arrived at - and I have already held that, in my judgment, it is not – the two groups in question are plainly very different. They have different, and relevant different, rights. For example, the right to a prompt decision within six months, having left the country in the case of a EEA national. Miss Anderson submits that the EU regime clearly envisages that EEA deportation orders are expected to be enforced and the question of material change of circumstances raised by the individual from outside the country. And she submits that the EEA situation is one in which there are real differences with substantive effects from the 'building up of time' within the United Kingdom.
- On this point, were it arrived at in the analysis, I think it right to give my own conclusions and reasons. In my judgment, were it arrived at, the Secretary of State would be able to justify the differential treatment of EEA and non EEA cases. As she points out, the starting point is that there are here two very different groups with different regimes and giving rise to different policy considerations.
- If one pauses to test the situation from the other way round, there would, in my judgment, be no difficulty in examining respects in which the regimes are more favourable to EEA deportees than non-EEA deportees, in seeing that there are differences between the group's different regimes and different policy considerations. So, for example, the thresholds which have to be met to justify a decision to deport in an EEA case are much higher. Viewed from that end, there would be no difficulty, in my judgment, in finding justification for that differential treatment, bearing in mind the special situation and privileges of EEA deportees. Those protections are, of course, driven by the EU scheme itself. But if one were to posit national provisions relevantly more favourable to EEA nationals, then on the face of it, in my judgment, it would be surprising if article 14 required uniformity of national provisions in every respect.
- Of course, this case is not viewed from that end. This is a situation, as with detention in RN, where the position of the EEA national is materially less favourable. I cannot accept, though, that those who designed the procedural provisions of national law must always, and in every respect, do so in a way which is either (a) more favourable to the EEA case or (b) treats EEA and non EEA cases as materially identical.
- In my judgment, there is clearly room for the heightened expectation in the EEA case that, where a deportation decision has been made applying the enhanced thresholds, and where a deportation order has been made, and not overturned on appeal, it is to be expected that the individual whose actions have placed them in the position of a justified deportation will then leave, with the deportation order being implemented, and the question of change of circumstances viewed from abroad. I have dealt already with the special human rights considerations that arise where the mere act of removal or short term absence will give rise to human rights violations. I have held that the statutory scheme accommodates that.
- In my judgment, the Secretary of State is entitled to have measures that reflect that expectation, not least in circumstances where it reflects the minimum standard laid down by the EU directive, and the clear premise and expectation which lies behind the design of article 32 of the directive.
- The Secretary of State is, moreover, in my judgment, right to point out that the EEA context is one in which special protections and real substantive effects arise from the 'building up' of residence, whether it is five years (see article 16 of the Directive) or ten years (see, for example, article 28(3) of the Directive).
- Those, in my judgment, are reasons which go to the appropriateness of speed of enforcement of a deportation in an EEA case and which relate to the circumstances of EEA cases, remembering always that those effected by EEA deportations have the right to apply, based on a change of circumstances, for revocation, and have an entitlement to a decision within six months on such an application. In my judgment, those are matters which do justify not the measure per se, but the differential treatment between the EEA and non-EEA cases. Moreover, in my judgment, they do so even if one takes the examples posited by the claimant of the same sort of criminality in the case of an EEA or non EEA individual.
- As for in-country appeal or out of country appeal, in my judgment, it must follow that if revocation can lawfully and justifiably be required to be pursued out of country, then it follows that insistence that any consequential appeal be out of country can also be justified. I ought to add that, in fact, as it happens, the out of country appeal position was already part of the EEA regime, not only from 2006 but, in fact, going to the previous Regulations of 2000. I ought also to add, in the context of appeal rights, that parliament has in section 109 of the 2002 Act recognised that different appeal provisions have been made in EEA cases than in non EEA. None of that, of course, was to empower the making of provisions that were contrary to Convention rights.
- However, for the reasons I have given, even if article 14 is triggered in the case of these two relevant groups, the Secretary of State is able convincingly to show that the differential treatment would meet proper standards of justification and would constitute reasons which are both weighty and, in my judgment, very weighty.
Conclusion
- My answer to issue 1 then, for all those reasons, is that there is no incompatibility, either in EU or Human Rights Act terms, in the insistence, leaving aside the narrow human rights point which I have analysed, the insistence on an application for revocation based on change of circumstances and human rights and an appeal being pursued out of country, even though they would not be in a non EEA case.
- There are two footnotes to this first issue. The first is that the claimant drew my attention to the Secretary of State's published policy in relation to entertaining applications for revocation. But Mr Chirico accepted, rightly in my judgment, that no question of the wording and effect of the policy could assist him on this part of the case if he were wrong about the legal regime. He did advance the submission that the existence of a policy which, on the face of it, acknowledged that revocation might be considered where an individual in an EEA case was still within the United Kingdom might be relevant to the question of justification. I am unable to see how it could make a material difference to the balance as to the justification arguments for the statutory scheme as it applies on its face to the EEA and non EEA cases. In any event, to the extent relevant, I do not find that that is a feature which is of sufficient weight to make a difference to the conclusion as to justification.
- The second footnote is to record that the claimant challenged in Counsel's written submissions the decision originally taken by the Secretary of State on 19 March 2013, at which date the article 8 arguments had not been considered. That was a decision, as I understand it, to enforce the deportation order, and the complaint was that article 8 had not, at that stage, been considered. In my judgment, that is not an argument that can prevail in circumstances where, in the event, the article 8 submissions were considered in the decision letter of 15 November 2013, and that is the decision that give rise to the third issue, namely the question of certification.
- I ought to make it clear, at this point, that I do not accept the submission that the decision of 19 March 2013 was of itself an unlawful one in the light of the now recognised relevance that article 8 can have for a removal. The same is true of the letter of 28 March 2013 from UKBA. It is right that the Secretary of State was not at that stage considering the article 8 implications of the mere act of removal. Moreover, I have held that that is a proper human rights argument which an individual must always be entitled to raise and which engages the Secretary of State's section 6 Human Rights Act duty. However, the fact in this case is that the claimant's solicitors very clearly were invoking as the relevant provision, regulation 24A, and were inviting a revocation based on material change in the circumstances. In circumstances where that contention was rejected and in which I have held that the regulation which requires the application to be out of country is compatible both with EU and ECHR law, and in circumstances where the Secretary of State came later in the decision 15 November 2013 to grapple with article 18 and the question of removal, there is no ground on which the court could be justified in intervening. Nor, in my judgment, could there be any utility in the point so as to justify relief.
Issue 2
- As to the lawfulness of the ongoing immigration detention, Mr Chirico submitted, in essence, that there was here, from all the relevant dates on which he relied – alternatively, it was sufficient that there was at any of those dates - a clear barrier to removal, starting with the representations that had been put forward but then the claim for judicial review itself and the need for the resolution of the important questions that have arisen for consideration in this case, and for which this court granted permission for judicial review. He submits this is a case where there was no real risk of absconding, which absence of any real risk of absconding in turn affected the weight that could properly be given to the question of re-offending, and, in all the circumstances, the Secretary of State should have realised that there was here an insufficient prospect of removal within a period of time that was reasonable in all circumstances of this case.
- The starting point on this part of the argument is the authorities. I was helpfully referred to a number of cases, including, in particular, Muqtaar [2012] EWCA Civ 1270 which discusses the Hardial Singh principles in the judgment of Richards LJ at paragraph 33. In the present case, as the arguments crystallised in oral submissions, the challenge is squarely placed on the basis of the 'third Hardial Singh principle', namely that:
"(iii) if, before the expiry of the reasonable period, [that is to say the period in which a deportee can be detained as being reasonable in all the circumstances] it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, [s]he should not seek to exercise the power of detention."
- Muqtaar was a case in which there were proceedings pending before the Strasbourg Court and a rule 39 indication had been received. The argument was that it should have been apparent, at least from that stage, that the Secretary of State would not be able to effect deportation within a reasonable period. The passage that discusses the relevant Hardial Singh principles is in Richards LJ's judgment, from paragraph 33 to 49. In particular, as Richards LJ there explains, the approach is to ask whether there was a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors; whether there was a realistic prospect of proceedings being concluded and removal effected within a period that was reasonable in all the circumstances; and that relevant aspects will include the prospect of absconding or re-offending, as well as the time already spent in detention and the prospects of deportation. It was also there emphasised, and both parties in the present case accepted, that we are in the realms of an objective question for the court and not a Wednesbury review, a matter explained by Richards LJ, at paragraph 48.
- As to the position where proceedings are ongoing, my attention was also helpfully invited to Lumba [2011] UKSC 12 at paragraph 121, in which Lord Dyson discusses the paramount importance of the risks of absconding and re-offending, since if a person absconds he will frustrate the deportation for which purpose he was detained in the first place. Lord Dyson then goes on to differentiate between cases where an individual is pursuing a meritorious appeal or pursuing a hopeless one in terms of weight to be given in determining whether a period of detention has become unreasonable in all the circumstances.
- As I said at the start of this judgment, the relevant immigration detention had started, according to the documents in this case, from 4 November 2011. The position as regards the claimant's offending and the risk that he posed was dealt with in considerable detail in the determination of the First Tier Tribunal of 27 March 2012. In particular, the tribunal recorded at paragraph 19 that he had been assessed as medium, as to risk of serious harm and, at paragraph 21, medium as to likelihood of reconviction. The tribunal dealt with the genuine, present and serious risk that he was held to pose in a passage to be found at paragraph 115 of the determination. I have had regard to that and all the other material relied on on both sides in this case.
- As to absconding, again I have been addressed, on the materials that are before the court, as to the claimant's position. I cannot accept the submission that there was in this case no abscond risk, viewed objectively, looking, for example, at the assessment of 19 June 2013. There, it is said that: 'the claimant had previously failed to comply with restrictions placed upon him, regardless of whether they were imposed by the courts, police, or ourselves. His bail applications have been refused. There is clearly a risk of flight if released at this late stage of the process'. Reference is made in that same assessment to involvement with drug and gang culture. As to that, evidence was adduced by the claimant at a very late stage 'for the record' that he does not accept that matter. However, I only permitted that evidence to be relied on for the purpose for which it was put forward, that is to say the question of relief, if relief arose. Even leaving that contested matter to one side, I am quite satisfied, looking at this matter objectively, and having regard to all the circumstances, that at none of the dates on which reliance has been placed, can it be said that there was a violation here of the third Hardial Singh principle.
- The mere fact that the request had been put forward on 2 January is not, in my judgment, the basis for a favourable conclusion on this point in circumstances where, as I have already said, that was plainly a request based on regulation 24A, which on its face is clear. (I have held in the event that that is a provision which lawfully operates to exclude an in-country application.) The position from the claimant's perspective is undoubtedly stronger once judicial review proceedings had been commenced and, in particular, once permission for judicial review had been granted. There, I am in a comparable position to that which arose in the Muqtaar case. No expedition was being sought at the beginning, in the context of judicial review, as I understand, by either of the parties, so it was known that the judicial review would take time to be decided. It was also known that permission had been granted and therefore from 14 May 2013 onwards, that this case would be leading to a substantive hearing. Although removal directions had been cancelled and although I would not accept the characterisation of the judicial review grounds as being frivolous, as they were recorded in the detention review of 22 May 2013, this is not a Wednesbury review of the Secretary of State's assessment or the particular reasons that were given, but rather an objective exercise in considering the question of whether there was a realistic prospect of the proceedings being concluded and the removal being effected within a period that was reasonable in all the circumstances. There was, in my judgment, still a sufficient prospect of removal to warrant continued detention, when account is taken of all of those other relevant factors, including the risk of absconding and the risk of re-offending. It was open to the Secretary of State, and the documents support that this was both open and was being considered, to pursue the expedition of judicial review to accelerate the hearing being brought forward. As to the position once the proceedings were dealt with, if the Secretary of State prevailed and there was, in my judgment, plainly a strong prospect that she would, it is recorded in the contemporaneous documents that a valid passport was now held and, as such, the claimant could be removed swiftly as soon as the judicial review barrier is resolved.
- It is always tempting to conclude that if the claimant could be released, as he was released - here, on 20 August 2013 - notwithstanding these various risks, and in circumstances where the judicial review proceedings were pending, and no expedition had at that stage been secured for an early hearing, it must therefore follow objectively that he could have been released earlier. Tempting though that is, I am not prepared to proceed on that basis, which, in my judgment, risks injecting hindsight. Moreover, it risks rewarding decisions to recognise that individuals can properly be released with conclusions that there is unlawfulness in not having done so earlier. I prefer to look, as I have been invited to, by the parties, at the position at the relevant dates on the basis of the material and the position as was known to the Secretary of State.
- I need no persuading of the call which individual liberty makes on the protection of the rule of law, nor of the important role which the concept of imminence can play in the context of detention with a view to removal or deportation. Moreover, I do not accept the suggestion on behalf of the Secretary of State that the "some prospect" (of removal) test is the correct approach in this context. Nevertheless, I am satisfied that Secretary of State acted compatibly with the Hardial Singh principles and that they were not breached as at 22 May, nor 19 June, still less at any other earlier date, in the particular circumstances of this case.
Issue 3
- As I explained at the outset in this judgment when examining the key provisions in play, regulation 26(4) and (5) of the 2006 Regulations, as applicable when the 15 November 2013 decision was made, empower the Secretary of State to certify a ground of appeal previously considered in a relevant appeal. Mr Chirico, for the claimant, emphasised that the certification provision is a discretionary power and not a duty. In my judgment, he was right to do so. In the context of EEA cases, in my judgment, it is highly relevant that the mere fact that a ground has previously been considered in a relevant appeal does not of itself drive the conclusion that the ground should be certified.
- The legal consequence under statutory scheme of a regulation 26(5) certification is that no appeal can be brought. The regulation does not distinguish, as other certification provisions do, between in-county and out of country appeals. Its function is not therefore on its face to place individuals in the position of being able to appeal but only out of country.
- Both parties submitted orally that it could not be the case that the Secretary of State could properly certify under regulation 26(5) the "ground" that the Secretary of State's decision was incompatible with human rights, or, for that matter, the "ground" that the decision was not otherwise in accordance with the law. If that were the case, and "grounds" were certified in that way, alarming consequences could follow, they recognised. For example, a person who has left the United Kingdom and made an application for revocation on grounds change of circumstances, but who had previously mounted a human rights appeal in-country against the original deportation order, could find their "human rights" argument certified, even though the circumstances had materially changed, and even if the Convention right being relied on was a different Convention right from the one which had been disposed of on the earlier appeal. To take a second example – and bearing in mind that the certification power is a general one applicable to all species of EEA decisions otherwise appealable - suppose a case in which an individual has appealed, based on article 8 private life, but there is a subsequent EEA decision, circumstances have changed and the individual is now able to invoke article 8 family life. There too the Human Rights Act "ground" would stand to be certified thus barring any appeal. Those sorts of problems gave rise to submissions from both sides as to the correct meaning in law of the phrase "a ground". Did it have its broad meaning, reflecting the way the statutory regime is structured (see section 84 of the 2002 Act) or a narrower meaning, whether characterised in terms of the law relied on or the facts relied on? I will come back, at the end of this judgment, to that conundrum.
- I can turn immediately to the certificate in this case in order to examine, in any event, whether on its face it is one that can withstand scrutiny on judicial review. In my judgment, and accepting the submissions of Mr Chirico on this part of the case, it plainly cannot.
- I leave aside the point to which I alluded earlier in this judgment, as to the references to section 45 of schedule 2 and regulation 30. The letter refers specifically to regulation 26(4) and the certification of a ground under 26(5). This case has proceeded on the basis that the Secretary of State is to be understood as having certified for that reason and for that purpose, though it adds to the problems with this part of the decision letter, in my judgment, that the reasoning is not clear even on that aspect.
- In my judgment, the certification in this case cannot stand, as a matter of law, for the following reasons.
(1) The decision does not grapple with what the Secretary of State considered was "the ground" being certified in this case.
(2) The decision does not address the question of discretion that arises where a ground has previously been relied on in a relevant appeal. That discretion, in my judgment, is of great significance but, in any event, it plainly appears on the face of the empowering provision. It is not acknowledged in the letter that the Secretary of State is exercising a power, still less is any reason identified as to why it is considered to be appropriate to exercise that power.
(3) The discretion is a matter of clear relevance, in my judgment, in circumstances where it is true that article 8 and therefore incompatibility with human rights had been advanced in the original appeal, and article 8 was being relied on again, but where what was being put forward was a material change in at least two respects in the circumstances, and therefore the implications for article 8 for the claimant and his son.
(4) The letter therefore does not grapple with those changed circumstances, even in the narrow context of the act of removal and the necessary short term period, or period of at least up to six months while any out of country application is pursued, and why it was considered to be appropriate by the Secretary of State to certify and block any appeal.
(5) On my reading of the decision letter, the Secretary of State proceeded on the basis that the certification had the consequence that an appeal could be pursued, but only out of country. That, in my judgment, is also problematic. For the reasons I have given, it is not the consequence of a regulation 26(5) certification. It may be that the Secretary of State had in mind a different appeal in relation to a different EEA decision, but the reasoning in the decision letter is, in my judgment, wholly inadequate to enable this certification in the circumstances of this case to withstand legal scrutiny.
- The secretary of State submitted that the correct analysis in this case is to recognise that the letter was only focusing on the narrow question of whether the act of removal and the short term absence of the claimant from the United Kingdom would of itself violate article 8, having regard to his rights and best interests of his son. That does involve overlooking in which certain passages in the decision letter were drafted, including paragraph 55 which speaks of the Secretary of State concluding that it was right to 'uphold the deportation order' in this case. The Secretary of State, through Miss Anderson, submits that there is a difference between the question of removal and the ongoing question of exclusion under a deportation order. I agree with her that there is that material distinction.
- Miss Anderson submits that the Secretary of State was entitled, in the circumstances of this case, to conclude that the question of short-term absence had effectively already been dealt with because of the First Tier Tribunal's determination and the fact that it had considered the position which would arise if the claimant were deported but there were a short term lapse of time where the family were kept apart while arrangements were being made for the partner and son to join him in Portugal. It is right that paragraph 113 of the First Tier Tribunal's determination did address that point in the circumstances as they then arose. What in my judgment I cannot do, though, is to reconstruct a decision to certify, and overlook the reasons or absence of reasons that are in fact put forward in this letter.
- In my judgment, the certificate is flawed for want of legally adequate reasons, and the appropriate order on this judicial review is the one sought in the revised judicial review grounds at paragraph 8 iii that the certificate should be quashed.
- I am not prepared to go further than quashing the certificate and to say that no reasonable Secretary of State could have certified in the circumstances of this case. That would be to descend into the shoes of the Secretary of State and to conclude what would inevitably follow were certification to be approached on a lawful basis. The appropriate course is simply to quash the certificate. There is, in my judgment, no lawful certificate standing in the circumstances of this case.
- The Secretary of State accepted, in the oral submissions of Miss Anderson, that, on the face of it, this was a decision (albeit with the narrow focus on 'removal') which would constitute an "EEA decision". Were it otherwise, the question of certification could be of no legal relevance, and none of this would be of any legal utility, for, absent an EEA decision, there could not be an appeal in any event.
- For the reasons I have given, I am satisfied that Mr Chirico is right in submitting that the certificate in this case cannot stand. I therefore allow the claim for judicial review on that basis and to that extent.
The scheme
- That leaves the question of how the statutory scheme fits together, including the question to which I have already alluded about what is meant by the "ground" of appeal, for the purposes of certification. Although I have dealt with the three issues that have been raised in this case, and I have given my reasons for the conclusions I have reached in relation to each of them, it would not, in my judgment, be right to leave this case there. That is because difficult questions have arisen which are directly relevant in the context of the present case as to how one makes sense of the interlocking provisions in a case which concerns a change of circumstances and human rights. I have had considerable assistance from both parties in relation to those underlying questions, and I am told by counsel on both sides that so far as they have been able to find, there is a dearth of authority which analyses this statutory scheme. Moreover, the underlying legal analysis is relevant to the consequences of my conclusion on issue 3, and the view that I have taken of the statutory scheme has informed my analysis of the grounds for judicial review. I have touched on more than one occasion on these difficult underlying questions. It is far better in all those circumstances that I should be clear about the view that I have taken of the interlocking features of this scheme.
- There is undoubtedly something of a conundrum in a regime which, on the face of it, requires applications to be made out of country based on change of circumstances but which can lead to a human rights decision, as this case has led to a human rights decision, even though the individual is in-country. There are also, in my judgment, difficult questions about the certification function and the question of what is being certified. For example, if the Secretary of State issues a lawful certificate to prevent a "ground" being relied on by appeal, what is the position if subsequently a fresh EEA decision is arrived at? Does the certificate serve to block an appeal even in relation to that subsequent decision? That is neither fanciful nor academic, for if the claimant in this case were to leave the United Kingdom and makes his application to revoke, based on a change of circumstances, then a certificate made or remade within the United Kingdom before that application has been made, might be relied on as blocking even an out of country appeal. I will, therefore, explain my own conclusions, many of which I have touched on already, as to how this regime works in the context of EEA deportation, change of circumstances, and human rights. My analysis of the scheme is as follows.
- The starting point is that an EEA deportation involves a decision that removal is justified (see regulation 19(3)(b)). That decision must be made applying the relevant test (see regulation 21). Having made such a decision, the question then arises as to whether a deportation order is to be made. Making a deportation order is an exercise of power. Its legal consequences are two-fold: firstly, to require the individual to leave and, secondly, to prohibit the individual from entering. That is the effect of section 5(1) of the 1971 Act which is applicable by virtue of regulation 24(3). The deportation order is in fact made under section 5(1) although in the Regulations it is described as being made pursuant to regulation 24(3). It does not matter, because it is the combined effect of the two provisions that gives rise to the order, and in that sense, both descriptions are correct (see regulation 2(1)).
- In circumstances in which a deportation order has been made, the EEA deportee can appeal against the deportation order in-country. In doing so, the individual can, in principle, seek to challenge (a) the lawfulness question, that is to say whether removal would be justified, which underpins the deportation order and (b) the question of human rights compatibility. Those are each relevant "grounds" of appeal for the purposes of section 84, and they are illustrated by what happened in the present case. The appeal against the deportation order is under section 82(2)(j) of the 2002 Act. It can, alternatively, be seen as an appeal through the prism of regulation 26 and Schedule 1 paragraph 1 to the 2006 Regulations. Again, it does not matter, because each path leads to the same conclusion as to what grounds are available and as to the fact that the appeal is in-country. Under the Regulations, no question of certification will arise unless there has previously been a relevant appeal. So, on a first appeal, no certification issue will arise. Where a certificate is made and an appeal is blocked, the regulations have provided that the certificate arises because of the reliance in a relevant previous appeal, whether it is viewed as having been made under the regulation or under section 82: see regulation 26(5).
- A deportee who wants to seek revocation of the deportation order on grounds of change of circumstances is expected to leave and make an out of country application. Such an application having been made, the Secretary of State must address the underlying question of justification. An out of country application to revoke a deportation order, on the basis of a change of circumstances, is bound also to bring in questions of the exclusionary effect of the deportation order and questions of human rights compatibility. All of that is dealt with by regulation 24A.
- If the Secretary of State refuses that application to revoke the deportation order, that refusal is an appealable EEA decision which attracts an out of country appeal: regulation 27(1)(b). However, if the Secretary of State certifies a ground as having previously been relied on, that ground will not be open on any such appeal, regulation 26(5).
- The correct meaning of "ground" for the purposes of regulation 26(5) is the broad meaning found in section 84(1) of the 2002 Act. That is the consequence of the use of the same language and the interweaving of the provisions of the regulations and Act. See regulation 26(5) itself, which refers directly to section 82(1) of the 2002 Act and is using the same language. See, too, paragraph 1 of Schedule 1 to the regulations which also refers to section 82.
- The initially alarming consequences of that broad meaning of "ground" are and must be alleviated by the importance of the discretion which is conferred on the Secretary of State as to whether to certify. In EEA cases, that question of discretion is likely to be of very considerable importance. The certificate will be lawful providing that it is reasonable in all the circumstances for the Secretary of State to certify in a context, no doubt, which would require anxious scrutiny on her part and on the part of any reviewing court.
- In considering whether it is appropriate to certify, the Secretary of State can be expected to examine not just the broad "ground", but the content relied on previously and currently, the overlap of the issue previously put forward and that currently put forward, any relevant question as to the viability of a putative appeal, and relevant questions as to the consequences of the certification being to block any appeal. The Secretary of State would need to justify the reasonableness in all the circumstances of a certificate given its consequences.
- The certification arises in the context of a new EEA decision, for it is the EEA decision which would be appealable under regulation 26, and it is that appeal which is affected by the Secretary of State's certification. Although it is possible to read regulation 26(5) as though it would certify a ground, whenever and forever, the direct link between certification and a putatively appealable new EEA decision supports the conclusion that the certificate would not bite on a subsequent appeal against a subsequent EEA decision. The certificate is dealing only with the ground of putative appeal arising from the immediate EEA decision which the certificate follows. Were it otherwise, troubling and widespread consequences would follow from a prospective certification blocking grounds, for all time, in later circumstances that the Secretary of State could not possibly foresee.
- Judicial review is available in the context of certification, as it always is, and will, no doubt, play an important role. The supervisory jurisdiction of the Administrative Court will apply to the question of whether the Secretary of State has lawfully certified. Moreover, given that the certificate bars any appeal, the consequence in a certified case is that the individual will have no alternative remedy by way of statutory appeal. The absence of an alternative remedy is something which is capable of justifying invoking the judicial review court's jurisdiction, to consider the legality of the decision which would otherwise be appealable.
- If the EEA deportee is still present in the United Kingdom, and the EEA deportation order has not been executed, then, after two years, he or she is entitled to the underlying justification decision being re-addressed by the Secretary of State in the light of changed circumstances, and no removal can take place without such a re-evaluation: see regulation 24(5). That, in principle, is also itself an appealable EEA decision which would give rise in principle to an appeal under regulation 26, not rendered out of country by regulation 27(1), subject always to the question of whether the Secretary of State has certified the ground and done so lawfully.
- If the EEA deportee is still present in the United Kingdom and the deportation order has not been executed but two years have not passed, the individual is not entitled to apply in-country for revocation based on change of circumstances: regulation 24A.
- However, by virtue of the Secretary of State's Human Rights Act 1998 section 6 duty, that individual is in a position to submit, if it is the case, that the action of removal – so that the individual must apply out of country for revocation with a decision within six months – is in and of itself a violation of human rights. The Secretary of State will be duty bound to act compatibly with her section 6 obligations. The consequence is that an in-country human rights changed-circumstances case can give rise to a decision addressing human rights made by the Secretary of State. This case illustrates such a decision.
- The question that the Secretary of State is required to consider in such a situation is the narrow question of whether the removal, and absence to pursue an out of country application and/or appeal, is of itself a violation of human rights.
- In principle, given that the EEA regulations are regarded as a relevant code, and given the breadth of the definition of "EEA decision" in regulation 2(1), such a decision is rightly recognised as being an EEA decision which could, in principle, be appealed. Moreover, that appeal is not rendered out of country by regulation 27. Subject to certification by the Secretary of State, and on the basis that it is that narrow human rights decision addressing the question of removal, it is, in principle, an appealable decision. If that were wrong and the decision is wrongly characterised as an EEA decision, and therefore Miss Anderson was wrong to accept it and I am wrong to have so characterised it, then there could be a question for judicial review, as there could also be, were the Secretary of State to certify.
- I close by dealing with three points that were raised by Mr Chirico that are relevant to the analysis that I have just described as what seems to me to be the correct interpretation of these complex and interlocking features.
- First, Mr Chirico submitted that there is no such thing in the statutory scheme as a 'narrow appeal'. If one has an appeal against a decision to remove, for example, or a decision that removal is not unlawful, it will always – he submits – give rise to a composite question in a deportation case. That means the implications, not only of the removal, but also of the ongoing exclusion, will be properly the subject matter of the appeal. He submitted that is always the position elsewhere in the immigration statutory scheme. It is the foreseeable consequence of the removal decision that it leads to the ongoing exclusion, he submits, and it could not be right for this regime to be differently interpreted. Mr Chirico may be right about the way appeals operate elsewhere in the statutory scheme but, in my judgment, this is a special context involving interlocking provisions which must be read coherently together. Here, the position is that it is foreseeable that the act of removal will lead to a right to apply from out of country and rely on human rights grounds as will arise on any out of country appeal. It cannot, in my judgment, be the position that a claimant can begin by relying on the 'narrow' human rights implications of the mere act of removal and end by earning the right to have all issues resolved on an in country appeal. That, in my judgment, would plainly subvert the lawful provisions which require the ongoing exclusionary effects of the deportation order to be addressed from out of country.
- The second point is that Mr Chirico submitted that any case in which the Secretary of State decided the 'narrow' question that removal would be incompatible with an individual's human rights must surely lead to a revocation and, to that extent, must constitute an in-country 'application for a revocation of a deportation order'. I do not accept that analysis. In my judgment, it is important to locate the Secretary of State's human rights obligation where it belongs. It may be that in a particular case the conclusion follows that the deportation order ought properly to be revoked, because the individual cannot be removed. Miss Anderson accepted that, and submitted that the Secretary of State would be entitled to take that course in such a case, but that it certainly would not invariably be the position. I accept that submission.
- Finally, Mr Chirico submitted that this analysis of focusing on the 'narrow' human rights compatibility of removal, on the basis that the individual will go abroad and advance arguments by means of an out of country application and, if necessary, appeal, fly in the face of the decision of the House of Lords in Chikwamba [2008] UKHL 40. I do not accept that submission. In my judgment, Chikwamba was dealing with a materially different context in which human rights arguments were being raised against the backcloth of a policy on the part of the Secretary of State which insisted on entry clearance applications from abroad. The House of Lords cut that particular knot by considering article 8 and proportionality considerations, in deciding whether that was a justifiable course. But their conclusion on the issues that were before them does not, in my judgment, drive a different conclusion in analysing and seeking to understand the way in which the interlocking components of this statutory scheme operate, in the context of EEA deportation.
- For all those reasons, the claim for judicial review succeeds as to the certification and is otherwise dismissed.
Consequentials.
MISS ANDERSON: My Lord, I hope I can be brief. Consequentials: obviously costs. It is my submission that the vast majority of the claim has been rejected and indeed the reasons why it was contested (Inaudible) that might have been dealt with in a different way.
THE DEPUTY JUDGE: What do you say is the right order?
MISS ANDERSON: I would ask for the usual that costs follow the event and that the event is that the main body of the appeal has been dismissed and that the minor element isn't sufficient to cause a split costs order. Usually in public law, that is not done as it perhaps may be done more readily in private law. But my fallback argument would be if there is to be a split it has got to be a minor amount.
THE DEPUTY JUDGE: What do you say it should be?
MISS ANDERSON: It may make no difference because I imagine the claimant is legally aided.
THE DEPUTY JUDGE: Well, let's hear Mr Chirico. I am sorry if I have kept pronouncing your name incorrectly.
MR CHIRICO: My Lord, it is Ki-ri-ko (As spoken).
THE DEPUTY JUDGE: Well then I have, and I apologise. Nobody will see it in the transcript. What is your position on costs?
MR CHIRICO: The claimant was going to seek the claimant's costs in this rather than (Inaudible) so clearly doesn't agree with that. Our first submission would be that the claimant should receive his costs in their entirety in this application. Alternatively, that the claimant should receive a significant proportion of costs. It is right that the claimant hasn't succeeded in all of his grounds. He succeeded, however, in obtaining what, on the face of it and in the light of your analysis at the end of the judgment, what he sought ultimately, which is an in country decision first of all. So his initial complaint was that the Secretary of State was declining to consider his human rights application. He obtained that in these proceedings. His further complaint was that he is not entitled to appeal that at present.
THE DEPUTY JUDGE: From tomorrow, he can.
MR CHIRICO: As of tomorrow, he can do. So all of this is as of this afternoon. So those are the fundamental remedies that are sought.
THE DEPUTY JUDGE: You say claimant's costs. Do you have a fallback?
MR CHIRICO: The fallback position would be that the claimant should receive an estimate of 75 per cent of the costs. I am plucking that figure slightly out of the air. Actually, before I come to that, the fallback position would be that the claimant should receive costs as from the date of grant of permission, not specifically because the grant of permission changes anything, but because looking at the conduct of the parties since then, the Secretary of State did not defend the claim. What she did instead of that was issue a decision which, had that been taken earlier on, would probably have led to this claim not having to proceed. Had the Secretary of State taken a view of the certificate, the 15 November certificate, which was lawful, and withdrawn it and issued an appealable decision on the 15th, the reality is that all that would have been left of this judicial review claim, all that would be non academic would be a detention challenge. So we say the claimant should have the costs of everything relating to the consideration of a claim. She has done what the claimant asked her to do. She would have the costs of everything relating to the certification challenge because the claimant succeeded before you on that. All that would then be left is the detention. Our submission would be that either that is (inaudible) and costs should follow on that in any event. Otherwise that if you look at the amount of time that has been spent actually pleading this as opposed to both parties putting in lengthy passages about the law which are not tailored particularly to this case, and the length of time which has been spent both arguing it and in your judgment we would say a not very significant reduction should be made, for that reason.
THE DEPUTY JUDGE: I've just got one question.
MR CHIRICO: Yes.
THE DEPUTY JUDGE: If I decide that the correct order in principle might be a split order where you get a third of your costs and the Secretary of State gets two thirds of her costs, bearing in mind the prospect of set-off, is that something that you would resist, compared, to say, an order for no order for costs?
MR CHIRICO: I'm sorry, I missed, bearing in mind?
THE DEPUTY JUDGE: Three grounds; you've lost on two, you've won on one. So if I concluded that your client is entitled to a third of the costs but the Secretary of State is entitled to two thirds of her costs?
MR CHIRICO: Yes.
THE DEPUTY JUDGE: Because that is one possible solution. But I just want to make sure I have understood the practical implications of this. This is a Legal Aid case.
MR CHIRICO: Our instructing solicitor is not behind us today. We would want to take instructions on that. So if that were --
THE DEPUTY JUDGE: Because that would give rise to a set-off and I've had this problem before.
MR CHIRICO: Yes.
THE DEPUTY JUDGE: It was exactly what the court did in one of the Iraq cases, and that is on the legal perspective and gives rise (Inaudible).
MR CHIRICO: It is either something on which instructions could be taken about now, if you would like to deal with that now, or it's a matter, if that were the way that your mind was going, whether we could deal with costs by way of written submissions. I know you indicated last time it was not to be dealt with.
THE DEPUTY JUDGE: Well, no, we can only do what we can do, but.
MR CHIRICO: Could we have three minutes just for my colleague to try and take instructions on that particular point.
THE DEPUTY JUDGE: Yes. Can we deal with the other consequential while we are waiting?
MR CHIRICO: Yes, my Lord.
THE DEPUTY JUDGE: Miss Anderson, do you have any observations about the different possibility? It is in the mind at the moment. If you could say, oh well, you both won something: no order. Or a court could say, in principle: you've won on two thirds; they've won on a third. So you get two thirds of yours but they get a third of theirs. Then you are into that rather complicated scenario. Whether it makes any practical difference in this case, I don't know. Or one could say, well, the claimant has succeeded on a third of the case so should have a third of their costs. Those seem to me to be the most promising options at the moment that are open to me. I know you've asked for more than that, but I've heard what you've said about that.
MISS ANDERSON: Certainly, on practicalities, it does make a practical difference to the Secretary of State because in this current climate, as it were, money to pay legal costs has to be taken from somewhere else, and that literally means having less people working or something of that nature. So there is a real consequence for the Secretary of State. Of course, it's not so true for the claimant because it's public funds on the other side, but it's not a case in quite the same way of taking them away from operational matters or something of that nature. So there is a consequence. To some extent it is sort of public on both sides so that you don't have that other element. In terms of splitting of the order, I'm afraid I don't know sufficiently about Legal Aid to be able to make a submission on what would happen in that case. That is for the claimants to deal with.
THE DEPUTY JUDGE: Maybe I will have to defer that and make an order with my eyes wide open. I know there is authority on that point because I was in it. It is one of the Mousa cases.
MISS ANDERSON: Generally, there aren't split orders in public law cases because of the nature of public law cases, as it were. There is some authority. Although I think that there is always a discretion in court. The general rule is of course that the court assesses who has overall won, and that follows the event. So it is unusual to have a split order. There is clearly power to do that.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: And the general rule is a strong rule, but of course the court has the discretion to depart from it.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: There is plenty of authority that says how strong it is. I wouldn't argue too much against a split order in this case if it is practicable. To respond to my learned friend's submission, it is just inconceivable that this case would not have been contested if a decision -- if you look at the basis of what has been argued. It has been argued on that very broad challenge ground. No concessions have been made. Even on the last point about the scope of the appeal, no concession was made on that in the sense it had to be the broad full appeal with everything in it.
THE DEPUTY JUDGE: No, I understand that. I think I have your points. I am just, in my mind, weighing up those three candidates. It seems to me those are the three candidates: no order; claimant gets a third; claimant gets a third and the Secretary of State gets two thirds.
MISS ANDERSON: So, practically speaking, no order probably wouldn't actually make a lot of difference in practice to making an order. But we know that Legal Aid isn't a reason to make a different order.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: Practically speaking, a split order I would say have effects; we don't know the effects on one side, but it certainly has effects on this side. I'm sorry, my Lord, what was the final one?
THE DEPUTY JUDGE: The claimant had a third of his costs.
MISS ANDERSON: Of course that split order.
THE DEPUTY JUDGE: He's won on a third.
MISS ANDERSON: Yes, my Lord, well, I don't think I can assist you further.
THE DEPUTY JUDGE: No, all right, we'll see. So shall we deal with the other consequential matters?
MR CHIRICO: My Lord, yes. In terms of what is or is not conceivable, that is a costs point. Shall I wait and address you on that when I have instructions on something else, and I will deal with them together?
THE DEPUTY JUDGE: Yes.
MR CHIRICO: My Lord, then in terms of the remedies, could I suggest that in respect of 15 November 2013 decision, my Lord has quashed the certificate. Can the order therefore be formulated to be that paragraphs 56 and 57 of the decision of 15 November 2013 be struck out?
THE DEPUTY JUDGE: I think it is your paragraph 8 iii is what I had in mind. Quashing the decision certifying this claim, under paragraph 26(5). Nobody has addressed me on those references to other provisions in the next paragraph. I just notice it.
MR CHIRICO: No, my Lord, I didn't notice. I'm not sure if anyone would notice --
THE DEPUTY JUDGE: That would quash the certificate under 26(5). I am not aware that the Secretary of State is saying that there is some other certificate --
MR CHIRICO: My Lord, no. That's not the reason why I am asking this.
THE DEPUTY JUDGE: No.
MR CHIRICO: I'm also assuming that the last paragraph is simply an accidental --
THE DEPUTY JUDGE: A mistake. It's an asylum provision, I think.
MR CHIRICO: Yes. The reason I am asking for the order to be formulated in that way is that that will make clear that there remains a 55 paragraph decision which we say is the subject of a right of appeal.
THE DEPUTY JUDGE: Yes. This would be the same in any certification case, wouldn't it. If you judicially review the certificate and the certificate is quashed, the rest of the decision stands and the whole point you can appeal in country.
MR CHIRICO: My Lord, that is right. It's just there are sometimes issues, because the First Tier Tribunal likes to have a decision which is plainly an appealable decision. What the First Tier Tribunal most likes is a decision which is issued with a notice of appealable decision. But it would certainly like, I think, to have a document which you can understand is the decision. So what often happens when a section 94 certificate is quashed is that a decision is re-issued with notice of appealable decision, and we would ask for that whole process to be short circuited for the claimant and for the Secretary of State.
THE DEPUTY JUDGE: Right, well, I understand what you are asking for and why. Mandatory deletion of paragraphs from a letter.
MR CHIRICO: My Lord, yes. It is exactly the relief which was asked for but whether it can be clarified, which has the effect that paragraphs 56 --
THE DEPUTY JUDGE: Where do you ask for paragraphs to be deleted?
MR CHIRICO: No, no. It is what you read out plus a clarification: what that means is paragraph (Inaudible), 56, and 57.
THE DEPUTY JUDGE: So that is the order?
MR CHIRICO: Yes.
THE DEPUTY JUDGE: What else?
MR CHIRICO: In terms of permission to appeal, the claimant would seek permission to appeal in relation to grounds 1 and 2. In relation to ground 1, on three points. Firstly, 37 of the directive, sorry, the article 37 of the directive.
THE DEPUTY JUDGE: Just tell me the points because I am familiar with them. The article 37 point, I know about this.
MR CHIRICO: We would say that properly read, that has the effect that the claimant is (Inaudible).
THE DEPUTY JUDGE: You said I got that wrong?
MR CHIRICO: Yes.
THE DEPUTY JUDGE: That's fine.
MR CHIRICO: And then in terms of article 14, we seek permission on three points. Firstly that Nouazli shouldn't be followed, in spite of the Court of Appeal per curiam. Secondly, that you were wrong to distinguish it, and thirdly, that your finding in the alternative about justification was wrong.
THE DEPUTY JUDGE: Yes, I understand.
MR CHIRICO: We say that all of those are points of general importance. And then, finally, the regulation 18 point which we have reserved our position on. So those all go to the ground 1.
THE DEPUTY JUDGE: Yes.
MR CHIRICO: And the final point in ground 1 is that in any event, the Secretary of State erred in her 28 March decision in not taking a decision on the human rights claim that was before her. So if it's right that there was the power to treat that application as an application not to remove.
THE DEPUTY JUDGE: Yes.
MR CHIRICO: And then, finally, ground 2 we seek permission on primarily on the basis that we have always said that the lawfulness or otherwise of that decision, 28 March, is material to it. And so we say that consequently if we are right that that 28 March decision was unlawful, that impacts on the lawfulness of detention.
THE DEPUTY JUDGE: Yes. Are you able to complete your submission on costs?
MR CHIRICO: My instructing solicitor also doesn't know what the effect would be of a split order. On that basis, it is obvious from what you have said that asking for 80 per cent or 75 per cent may be unrealistic. If you are looking at split orders, I would invite you instead to make a percentage order in favour of the claimant. My submission, respectfully, would be a 50 per cent one. It is not right to say that it is inconceivable that these proceedings would not have gone ahead. Had there been any kind of defence in July, had the decision on 15 November been taken differently, the claimant, like anyone else who is legally aided, would have had to look at what the advantage was to be achieved for him by these proceedings. The 28 March decision becomes academic except for the purposes of detention, the moment that there is a later appealable decision. That becomes a point for the tribunal and not for judicial review. So we say it is not right to say it is inconceivable had the Secretary of State taken a different position. She has resisted the claimant on ground 3 right to today. Had a different position been taken on that, had an appealable decision been made, we would not have been here on grounds 1 or 3.
THE DEPUTY JUDGE: Okay. Miss Anderson. What is your position on mandatory deleting paragraphs of the letter?
MISS ANDERSON: My Lord, my submission is that that is not the appropriate order. The order should just be that the certificate is quashed. That is the normal order. I think it's a matter for the Secretary of State whether she does reshape the decision to conform to the judgment, in the sense of making it very clear what the removal and temporary exclusion point are.
THE DEPUTY JUDGE: Okay. And what is your position on permission to appeal?
MISS ANDERSON: On permission to appeal, I don't understand my learned friend. There are obviously two limbs to have said that there is another reason, as it were. With two limbs, real prospects of success or other reason why, despite not having real prospects of success, there is some other reason.
MR CHIRICO: Sorry, my Lord, if it wasn't clear, I was submitting that all of the article 18, 37 and discrimination points are points of general importance.
MISS ANDERSON: That may be so, my Lord, but if they are bound to fail, it doesn't really avail anyone. Normally, other reasons are things more like bias or something like that --
THE DEPUTY JUDGE: You say I should refuse permission to appeal (Inaudible).
MISS ANDERSON: So, it's just real prospect of success unless you are satisfied there are real prospects of success, in my submission your judgment is very clear that there aren't. It is not a marginal judgment that says you are in two minds but you have finally come to a certain point. It's very clear, it makes the whole scheme, it makes sense of it all. So I do resist that.
THE DEPUTY JUDGE: Are you applying for permission to appeal in relation to the point on which you lost?
MISS ANDERSON: No. And I would comment, my Lord. I didn't give it the most robust defence in terms of the actual wording of the certificate in the particular ground. The wide issue as to the scope of the appeal was important, and that has been decided by the court in a particular way that has shaped what appeal could go forward.
THE DEPUTY JUDGE: Yes.
MISS ANDERSON: And so, in my submission, if you were actually looking at the element of the actual costs incurred, as it were the time taken --
THE DEPUTY JUDGE: Are we back on costs now?
MISS ANDERSON: Well, my Lord, it is a bit of both, but, as I say, in this particular case, really the scope of what's been lost is small.
THE DEPUTY JUDGE: All right. Thank you both very much. As to costs, I am going to order that the claimant recover a third of his costs. That is the only order I am going to make in relation to costs. That reflects the position as to his success and the scope of his success. I accept that although it was one of the three issues, it has two aspects to it, because it has a legal consequence in relation to appeal, with which I also dealt in the judgment. I accept that the Secretary of State prevailed in relation to the other two points but, in my judgment, it suffices to disentitle the claimant from recovering the other two thirds. It was neither necessary nor appropriate to make a cross order that the Secretary of State should recover a portion of her costs. I am not persuaded as to the arguments about the whether the case would have been fought or not fought had earlier steps been taken. It seems to me that the parties were committed in relation to the important issues that have risen. I focused, in terms of the costs order, on what was arguable and what I have decided and who won and who lost and the overall justice of the case. So that is costs.
In relation to remedy, I will make the order quashing the decision of 15 November 2013 certifying the claim under paragraph 26(5) of the 2006 Regulations. I am prepared to say in open court, it is clear from my judgment that paragraphs 20, 56 and 57 of that decision letter cannot stand but, in my judgment, that is obvious from what I have decided. It is neither necessary nor appropriate to make a mandatory order requiring a letter to be rewritten or paragraphs to be deleted. So the remedy is the order to which I have referred.
I grant permission to appeal in relation to the first issue on both grounds, a realistic prospect, in my judgment, and the importance of those issues. I can say that I, for myself, would welcome the Court of Appeal looking at these issues and indeed looking at this statutory scheme. I am not so confident in my judgment as to think there is no realistic prospect that the court will take a different view in relation to that. I am not prepared to grant permission to appeal on the immigration detention point. As that point was argued before me, even though the first ground was being advanced, it was, nevertheless, squarely a Hardial Singh 3 point and not a parasitic on ground 1 point. There is clear Court of Appeal authority that although Hardial Singh is an objective question for the High Court, it does not follow that the Court of Appeal simply steps into the shoes of the court on an appeal to that court. In my view, I don't think the Hardial Singh ground does have a realistic prospect of success, and therefore I am not prepared to grant permission on that point.
So, those are the orders that I will make in relation to all of the consequential matters.
MR CHIRICO: My Lord, finally, can the claimant have a detailed assessment?
THE DEPUTY JUDGE: Yes, detailed assessment for Legal Aid purposes.
MR CHIRICO: My Lord, there was another thing, sorry. I am asked to apply for anonymity in respect of the claimant as well, because of the child. The reasons for anonymity are the likely public interest in this case and the fact that there is a small child involved who is likely to remain in the United Kingdom.
THE DEPUTY JUDGE: Miss Anderson?
MISS ANDERSON: My Lord, I don't have instructions on the point and I don't seek to make submissions on it. I certainly wouldn't seek to oppose it from that point of view.
THE DEPUTY JUDGE: I'm going to make the order.
MISS ANDERSON: But the only issue I'd raise is that the Supreme Court has made quite a few comments on the subject of anonymity and the openness of justice, and regularly de-anonymises cases when they come before them. Lumba was one of those. I think because there were submission by the press about alphabeti spaghetti and so on so forth and how it was now indecipherable, so it wasn't open justice.
THE DEPUTY JUDGE: What about liberty to apply?
MISS ANDERSON: I only raise them just as an officer of the court; I'm not actually raising them to oppose it. I am just simply drawing them to the attention of the court.
THE DEPUTY JUDGE: Well, it is made very late, but given there is a very young child, I am prepared to make an anonymity order so that the claimant should not be identified in any reporting of this case. Do you need something more than that?
MR CHIRICO: My Lord, no. May the case be referred, therefore, as "BXS".
THE DEPUTY JUDGE: The claimant will be referred to as BXS. I do so on the basis that there is a young child involved. But I will say liberty to apply. I also make clear that if this case does go further to the Court of Appeal, it will be a matter for that court to consider any ongoing question of anonymity.
I will just pause here to fill out the form in relation to permission to appeal.
Thank you very much. I would like to apologise to the court staff for having kept them so long. I would like to thank everyone for your patience while we went through a marathon read-out, and I would also like to thank both teams for the considerable assistance I have had, not just on the three issues, but the very difficult conundrum of trying to make sense of this regime in the absence of authority. So with that sincere note of gratitude, I will watch carefully to see what is said next. Thank you all very much.
MISS ANDERSON: If it is not appropriate, can we thank you for dealing with it in such a thorough way. I think it is really appreciated when the judge does go through everything.
THE DEPUTY JUDGE: I feel a bit better now.
