Connell, R (On the Application Of) v The Secretary of State for the Home Department

The Claimant seeks judicial review of the Defendant’s decision on 9^th December 2015 not to deport him to Ireland as a foreign criminal.

On 28^th June 2016 Karen Steyn QC sitting as a deputy High Court judge gave permission to apply for judicial review on two grounds :

The Policy ground turns on whether the 2007 Act applies to EEA citizens subject to the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations), which is a point of general interest. I should add that the ground was wholly directed to the effect of the 2007 Act and no material point arises in respect of the Immigration Rules.

The Claimant is an Irish national and as such an EEA citizen, benefitting from rights under the EU Treaties. On 2^nd September 2011 he was sentenced to eleven years imprisonment for serious sexual offences against a child. He was released on 25^th August 2016 and his licence conditions expire on 25^th February 2022. If a decision had been made for his deportation, he would come within the Defendant’s Early Removal Scheme (ERS), under which he would have been removed to Ireland on or following 29^th November 2015.

The claim was issued on 8^th March 2016.

The Claimant wishes to be deported to Ireland and had sought a decision from the Defendant to that effect. The Defendant’s refusal was contained in a letter dated 9^th December 2015, enclosed with a letter from the Government Legal Department (GLD) to the Claimant’s solicitors dated 17^th December 2015.

I will consider each of the grounds in turn.

Article 21 of the Treaty on the Functioning of the European Union (“TFEU”) provides for the right of EEA citizens to move and reside within other member states within the EU. That right is subject to the limitation and conditions in Directive 2004/38 (the Directive), including:

“Article 27 General Principles

1.

Subject to the provisions of this chapter Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds may not be invoked to serve economic ends.

2.

Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted ….

Article 28 Protection against Expulsion

1.

Before taking an expulsion decision on grounds of public policy or public security the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin….”

The Directive was transposed into UK law in the 2006 Regulations made under section 2 of the European Communities Act 1972 (the 1972 Act), which provides so far as relevant:

“2.

— General implementation of Treaties.

(1)

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “ enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.

(2)

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

(a)

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

(b)

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

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

Under the 2006 Regulations Part 2 dealt with EEA rights including in regulation 11 an EEA citizen’s right to admission to the United Kingdom. Part 4 dealt with the refusal of admission and removal of EEA citizens. Regulation 19(1) permits the refusal of admission if his exclusion is justified in accordance with regulation 21. By regulation 19(3):

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

By Schedule 4 Transitional provisions paragraph 4(3)

“A deportation order made under section 5 of the 1971 Act by virtue of regulation 26(3) of the 2000 Regulations shall, after 29^th April 2006, be treated as a deportation order made under section 5 of the 1971 Act by virtue of regulation 24(3) of these Regulations.”

It is then convenient to set out the relevant provisions of the Immigration Act 1971 (the 1971 Act). By section 3(5):

“A person who is not a British citizen is liable to deportation from the United Kingdom if—

(a)

the Secretary of State deems his deportation to be conducive to the public good; or…”

By section 5 Procedure for, and further provisions as to, deportation:

“(1)

Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

…

(5)

The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.”

Schedule 3 sets out supplementary provisions as to the procedure for deportation.

The 2007 Act, which came into effect on 1^st August 2008, provides so far as relevant:

“32

Automatic deportation

(1)

In this section “foreign criminal” means a person–

(a)

who is not a British citizen,

(b)

who is convicted in the United Kingdom of an offence, and

(c)

to whom Condition 1 or 2 applies.

(2)

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3)

Condition 2 is that–

(a)

the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and

(b)

the person is sentenced to a period of imprisonment.

(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6)

The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless–

(a)

he thinks that an exception under section 33 applies,

(b)

the application for revocation is made while the foreign criminal is outside the United Kingdom, or

(c)

section 34(4) applies.

(7)

Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.”

By section 33:

“Exceptions

(1)

Section 32(4) and (5)…

(a)

do not apply where an exception in this section applies (subject to subsection (7) below), ….

(2)

Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach–

(a)

a person's Convention rights, or

(b)

the United Kingdom's obligations under the Refugee Convention.

(3)

Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.

(4)

Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties.

(5)

Exception 4 is where the foreign criminal–

(a)

is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41),

(b)

is in custody pursuant to arrest under section 5 of that Act,

(c)

is the subject of a provisional warrant under section 73 of that Act,

(d)

is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or

(e)

is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.

(6)

Exception 5 is where any of the following has effect in respect of the foreign criminal–

(a)

a hospital order or guardianship order under section 37 of the Mental Health Act 1983 (c. 20),

(b)

a hospital direction under section 45A of that Act,

(c)

a transfer direction under section 47 of that Act,

(d)

a compulsion order under section 57A of the Criminal Procedure (Scotland) Act 1995 (c. 46),

(e)

a guardianship order under section 58 of that Act,

(f)

a hospital direction under section 59A of that Act,

(g)

a transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or

(h)

an order or direction under a provision which corresponds to a provision specified in paragraphs (a) to (g) and which has effect in relation to Northern Ireland.

(6A) Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16th May 2005).

(7)

The application of an exception–

(a)

does not prevent the making of a deportation order;

(b)

results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;

but section 32(4) applies despite the application of Exception 1 or 4.”

By section 38 Interpretation:

“(4)

In sections 32 and 33 … (c) “deportation order” means an order under section 5, and by virtue of section 3(5), of the Immigration Act 1971….”

The Defendant’s policy for deportation of Irish nationals was announced to parliament by the Minister on 19^th February 2007 and thus before the 2007 Act was enacted or came into force. It was as follows:

“Irish citizens will only be considered for deportation where a court has recommended deportation in sentencing or where the Secretary of State concludes that, due to the exceptional circumstances of the case, the public interest requires deportation. In reviewing our approach in this area we have taken into account the close historical, community and political ties between the United Kingdom and Ireland, along with the existence of the common travel area.”

At the time of the decision in the present case the Defendant’s policy was reflected in her Guidance on EEA foreign national offender (FNO) cases dated 6^th October 2015. That provided, so far as relevant:

“…It is rare that Irish FNO cases will be considered exceptional enough to merit deportation. Irish nationality does not however provide automatic exemption from deportation regardless of individual circumstances. As a guide deportation is still considered if an offence involves national security matters or crimes that pose a serious risk to the safety of the public or a section of the public. For example, a person convicted and serving a custodial sentence of 10 years or more for:

•

A terrorism offence

•

Murder

•

A serious sexual or violent offence

If a decision is taken to deport an Irish national under the (2006 Regulations), the case is dealt with in line with other EEA deportations and treated as if the decision was taken under section 3(5)(a) of the (1971 Act) on the grounds that their presence is not conducive to the public good. Deportation of Irish nationals is only in the public interest in exceptional circumstances. …”

In the present case the letter from the GLD dated 17^th December 2015, enclosing the decision letter, also referred to the Interested Party’s Prison Service Instruction 52/2011 paragraph 2.5 and annex H, which is to similar effect.

In Straszewski v SSHD [2016] 1 WLR 1173 the Court of Appeal was concerned with the application of regulation 21 of the 2006 Regulations and its relationship to public policy considerations. While it does not appear that it was argued in that case that the 2007 Act applied to EEA cases under the 2006 Regulations, it provides helpful context for the consideration of that issue. In delivering the lead judgement Moore-Bick LJ said at paragraph 11 and following:

“Deterrence and public revulsion

11

It is convenient to consider first the extent to which wider factors, such as the public interest in deterrence and the need to demonstrate public revulsion at the offender's conduct, are factors that can properly be taken into account when deciding whether the removal of an EEA national who has acquired a permanent right of residence is justified on serious grounds of public policy or public security. RU (Bangladesh), on which Ms Chan placed some emphasis, was a case involving the deportation of a foreign criminal under section 32 of the 2007 Act. In such cases the statutory scheme envisages that the person facing deportation bears the burden of showing that his removal would not be in accordance with the law, usually because of the interference with his fundamental rights that it would entail. In such a case it is well established that the need to deter other potential wrongdoers and to reflect public revulsion at the offence in question are aspects of the public interest in deportation and as such are important factors for the decision-maker to take into account. Ms Chan submitted that they are equally important in a case falling within regulation 21 . In my view, however, that fails to recognise the very different context in which the question of deportation arises.

12

One important purpose of the Citizenship Directive was to protect and support the treaty right of free movement of nationals of member states and, by extension, nationals of other EEA states. The origin and purpose of the Regulations are, therefore, both fundamentally different from those of section 32 of the 2007 Act, which is directed to removing from this country aliens who have no right to be here other than in accordance with leave to remain granted by the Secretary of State. Leaving aside whatever protection against removal the European Convention may afford them, their position in law is inherently less secure than that of EEA nationals who are entitled to exercise treaty rights. In a case where the removal of an EEA national would prima facie interfere with the exercise of his treaty rights it is for the member state to justify its action. It is for this reason that I am unable to accept Ms Chan's submission that in a case of the present kind the burden of showing that the decision is not in accordance with the law lies on the person who is to be deported.

…

14

Regulation 21(5)(b)(d) provides that a decision to remove an EEA national who enjoys a permanent right of residence must be based exclusively on the personal conduct of the person concerned and that matters that do not directly relate to the particular case or which relate to considerations of general prevention do not justify a decision to remove him. On the face of it, therefore, deterrence, in the sense of measures designed to deter others from committing similar offences, has of itself no part to play in a decision to remove the individual offender. Similarly, it is difficult to see how a desire to reflect public revulsion at the particular offence can properly have any part to play, save, perhaps, in exceptionally serious cases. As far as deterrence is concerned, the CJEU has held as much in the Bonsignore case.

…

20

… The authorities to which I have referred support the general proposition that great importance is to be attached to the right of free movement which can be interfered with only in cases where the offender represents a serious threat to some aspect of public policy or public security. Save in exceptional cases, that is to be determined solely by reference to the conduct of the offender (no doubt viewed in the context of any previous offending) and the likelihood of re-offending. General considerations of deterrence and public revulsion normally have no part to play in the matter. In these respects the principles governing the deportation of foreign criminals in general differ significantly from those which govern the deportation of EEA nationals who have acquired a permanent right of residence.

…

24

… It would therefore be unwise, in my view, to attempt to lay down guidelines. In the end, the Secretary of State must give effect to the Regulations, which themselves must be interpreted against the background of the right of free movement and the need to ensure that derogations from it are construed strictly.”

In R (oao Byczek) v SSHD [2015] 2 CMLR 7 Jay J had to consider the effect of regulation 24(3) of the 2006 Regulations. Specifically the case concerned whether the EEA citizen had an in-country right of appeal against the refusal to revoke his deportation order. Regulation 27 of the 2006 Regulations (as amended) provided that an EEA decision to refuse to revoke a deportation order did not allow an in-country right of appeal. The contention was made that under the Nationality Immigration and Asylum Act 2002 (the 2002 Act) section 82(2)(k) an immigration decision included a ‘refusal to revoke a deportation order made under section 5(2) of the 1971 Act’ and that accordingly by section 92 of the 2002 Act an in-country right of appeal was given in that case. It was argued that therefore the claimant had two rights of appeal, one subject to regulation 27 of the 2006 Regulations, which was required to be exercised outside the UK, and the other, which by regulation 24(3) of the 2006 Regulations and the 2002 Act allowed an in-country right of appeal.

While that decision was not considering the application of the 2007 Act, the definition of deportation order under section 38(4)(c) of the 2007 Act is, as set out above, ‘an order under section 5 and by virtue of section 3(5) of the 1971 Act so that the phrase ‘under section 5’ is common to both definitions. Miss Julia Smyth, who appears for the Defendant, relies upon the reasoning in Byczek as applicable to the present case. That contention is not accepted by Mr Rule, who appears for the Claimant.

Turning then to Jay J’s analysis in this respect, he concluded at paragraph 59 and following:

“59

It seems to me that this case pivots on the true construction of reg.24(3) of the EEA Regulations . Other provisions may serve to illuminate the correct interpretation of that provision, but reg.24(3) is both the starting point and the end point of the inquiry.

60

The defendant might have achieved her policy objectives in relation to EEA nationals by pursuing one of three possible routes. First, she might have carved out special rules for EEA nationals in the Immigration Act 1971. Such rules would have made clear, for example, that the criteria for removal were different, and narrower, in EEA cases. Secondly, she might have created a wholly self-contained regime for EEA nationals which did not rely on the Immigration Act 1971 at all. For such a regime to operate, the defendant would have had to build into the EEA Regulations a web of decision-making and coercive powers which broadly matched ss.3 and 5 of, and Sch.3 to, the Immigration Act 1971 . To the extent that primary legislation might have been necessary for this purpose, the defendant could have relied on s.2(4) of the 1972 Act. Thirdly, she might have created a form of hybrid between the first and two routes: in other words, the promulgation of a separate set of subordinate legislation which relied to some extent on pre-existing statutory powers.

61

The defendant chose the third of these routes. She clearly intended to establish a separate regime for EEA nationals, but at the same time she did not intend to re-invent the wheel. Statutory powers were available and could be deployed.

62

The present difficulty arises because of the manner in which reg.24(3) has chosen to refer to the pre-existing statutory provisions.

63

If the draftsperson had said words clearly to the effect that a decision under the EEA Regulations is always to be treated as if it were a decision under the relevant provisions of the Immigration Act 1971 , then Mr Toal’s argument would face no apparent difficulties. On the facts of these cases, the decision under the EEA Regulations would be deemed to be a decision under s.5(2) of the Immigration Act 1972 . That would bring s.82(2)(k) into play, because it uses the preposition “under” in the context of s.5(2) .

64

But the draftsperson has not used words quite to that effect. Instead, reg.24(3) provides that the removal decision is made under reg.19(3)(b), which is the operative provision governing the liability to deportation of EEA nationals. Regulation 21 identifies the conditions which fall to be satisfied, in the defendant’s assessment, before the deportation power may be exercised. Furthermore, the draftsperson has provided that the specified provisions of the Immigration Act 1971 apply “accordingly”.

65

Where such a deportation decision is made, the person the target of that decision is treated by virtue of reg.24(3) as if he were a person to whom s.3(5)(a) of the 1971 Act applied. The reason why reg.24(3) is phrased as it is seems clear. The defendant did not wish to follow the second of the three routes I have identified. That would have been overkill. But, the defendant needed to make clear that persons who were the subject of EEA deportation decisions should be regarded as being persons liable to deportation for the purposes of s.3(5)(a) of the Immigration Act 1971, even if the grounds on which the discretion to deport is exercised are very different in an EEA case. That in itself would achieve next to nothing, but the real reason for treating these persons in this way is disclosed by focusing on the clause succeeding the final comma in reg.24(3). To the extent that such provisions were not inserted into the EEA Regulations, the defendant needed to bring these persons within the procedural and supplementary provisions of s.5 of, and Sch.3 to, the 1971 Act. Section 5 contains a series of procedural provisions which the defendant would sensibly wish to apply to EEA nationals. These have nothing to do with the substance of the defendant’s decision-making, but everything to do with the consequences of it. Likewise, the defendant requires the machinery laid down in Sch.3 to detain EEA nationals and to effect their removal. It is for these reasons that s.5 and Sch.3 apply “accordingly” to persons whose removal is deemed to be conducive to the public good, on account of s.3(5)(a).”

He continued at paragraph 70:

“70

Is this a special, distinct category for the purposes of the EEA Regulations? My provisional view, when reading the papers and persisting during the course of the oral argument, was that this was the case. Ultimately, however, I cannot embrace Mr Dunlop’s alternative submission on this point. Although the criteria governing the making of deportation orders in an EEA case are very different from the “standard” case catered for in very general terms by s.5 of the Immigration Act 1971 , it scarcely follows that EEA deportation orders constitute some form of distinct category. The correct analysis is that EEA deportation orders form a sub-set, or species, of the general category, or genus, of deportation order covered by s.5(1) .

71

It follows that I am not prepared to construe s.82(2)(k) in such a way that revocation decisions described as having being made under s.5(2) of the Immigration Act 1971 by virtue of reg.24(3) are somehow outside its statutory scope.”

The judge went on to hold that the wording of regulation 24(3) did not make the decision one made under section 5(2) of the 1971 Act for the purposes of section 82 of the 2002 Act.

In R v Kluxen [2010] EWCA Crim 1081 the Court of Criminal Appeal was concerned with a court’s recommendation for deportation of offenders and whether there was a distinction between offenders who are EEA citizens and those who are not. The two appellants were EU citizens. Maddison J giving the judgement of the court said at paragraph 9:

“In our judgment, since the 2007 Act came into force it is no longer appropriate for a court to recommend the deportation of a “foreign criminal” as defined in section 32 of the 2007 Act. This is so for two reasons. (i) No useful purpose would be served by doing so. The Secretary of State is obliged by section 32(5) of the 2007 Act to make a deportation order unless one or more of the exceptions specified in section 33 of the 2007 Act applies, and it is for the Secretary of State to decide whether any of those exceptions does apply. (ii) Although section 32 of the 2007 Act does not expressly prevent the court from recommending the deportation of a “foreign criminal” it does expressly remove any need for the court to do so. To explain this, it is necessary to turn to the Immigration Act 1971. The power of the Secretary of State to order the deportation of a person who is not a British citizen derives from section 5(1) of that Act. This provides that “where a person is under section 3(5) or (6) above liable to deportation … the Secretary of State may make a deportation order against him …” Section 3(5)(6) of the 1971 Act, in their present form, provide that a person who is not a British citizen shall be liable to deportation if: (1) the Secretary of State deems his deportation to be conducive to the public good (section 3(5)(a)); or (2) another person to whose family he belongs is or has been ordered to be deported (section 3(5)(b)); or (3) after he has obtained the age of 17, he is convicted of an offence punishable by imprisonment and is recommended for deportation by a court empowered by the 1971 Act to do so (section 3(6)): that is by any court having power to sentence a person to whom section 3(6) applies unless the court commits him to be sentenced or further dealt with for the offence by another court: section 6(1). Returning to the 2007 Act, section 32(4) provides that “for the purpose of section 3(5)(a) of the 1971 Act the deportation of a foreign criminal is conducive to the public good”. Thus any “foreign criminal” is liable to deportation under section 3(5)(a) of the 1971 Act and must be deported under section 5(1) of that Act by virtue of section 32(5) of the 2007 Act. …”

He continued at paragraph 49:

“All three offenders fall squarely within section 32 of the 2007 Act. None is a British citizen. All received sentences of imprisonment or detention of more than 12 months for a single offence. All three were convicted and sentenced after the 1 August 2008 on which date section 32 of the 2007 Act came into force. Kluxen's offences were committed between 13 October and 9 November 2008. The conspiracy charged against Rostas and Adam began before 1 August 2008 but it extended beyond that date and it is not disputed that both offenders were actively involved in the conspiracy after that date. There is no need for a court to be involved in this process at all.”

While the reasoning proceeded on the basis that the 2007 Act applied to what would be a deportation order under the 2006 Regulations, it does not appear that any point was taken as to the applicability of the 2007 Act in those circumstances. In any event the essential reasoning in that case does not apply to the issues with which I am concerned and I do not consider that I am bound by it so far as relevant to the issues in the present case.

Mr Rule submits that the 2007 Act imposed a clear and specific mandatory regime for deportation of all qualifying foreign national offenders as from 1^st August 2008, when it came into force. By virtue of section 32(4) and (5) the defendant was bound to make a deportation order in respect of a foreign criminal where, inter alia, condition 1 is met in having been sentenced to a period of at least 12 months. That is subject to the exceptions under section 33 and in particular exception 3. The terms of that exception demonstrated that the provisions of sections 32 and 33 applied to EEA citizens who had rights under the EU treaties. In accordance with European law the decision maker (assuming the EEA national seeks to exercise the Treaty rights of freedom of movement, or the Directive rights against expulsion) was required to examine whether the removal of the foreign criminal would breach that person’s EU rights. If it did, the mandatory requirement for a deportation order under section 32(5) would not apply. However, that would only be where there would be a breach, leaving the requirement to make a deportation order in all other cases under regulation 19(3)(b) and 21 of the 2006 Regulations.

That is consistent with section 33(7) which makes clear that, where an exception applies, including exception 3, that does not prevent the making of a deportation order but results in it being determined without any assumption that it is or is not conducive to the public good. Thus it is for the decision maker to determine that issue on the particular facts of the case.

Once a decision to remove is made in accordance with regulation 21, regulation 24(3) requires that the person is to be treated as a person to whom section 3(5)(a) of the 1971 Act applied, that is that he was a person who is liable to deportation if the Defendant deems his deportation to be conducive to the public good. Further regulation 24(3) requires that section 5 of the 1971 Act is to apply accordingly and at this stage the mandatory requirement under section 32(5) of the 1971 Act requires the Defendant to make a deportation order which would not be in breach of European Treaty rights because the decision on removal would have been determined in accordance with regulation 21. Thus it ensured that in those cases where the Defendant decided in accordance with regulation 21 that it would be appropriate to remove a foreign criminal who was an EEA citizen the Defendant was required in accordance with the 2007 Act to make a deportation Order as exception 3 would not be engaged.

The distinction between removal for the purposes of exception 3 and under the 2006 Regulations and deportation for the purpose of the 2007 Act is reflected in regulation 29(6), which, as set out above, provides that a deportation order ‘under section 5 of (the 1971 Act)’ is not to be made while the appeal is pending.

The Defendant’s contention that the 2007 Act does not apply to EEA nationals is contrary to the objective of these provisions. The importance of the public policy in the 2007 Act is to be given great weight – see, for example, per Rafferty LJ in SSHD v CT (Vietnam) [2016] EWCA Civ 488 at paragraphs 13, 14 and 18.

The policy adopted by the Defendant for dealing with Irish nationals on 19^th February 2007 and the subject of the Defendant’s 2015 guidance was before the 2007 Act was enacted or came into force. It clearly did not reflect the substance of the 2007 Act nor did it meet its objectives. It could not be a substitute for the application of the 2007 Act provisions. It did not give effect to the requirement for deportation where that would not involve a breach of the person’s rights under the EU Treaties, as explained above. It was therefore ultra vires in this respect.

That approach was in Mr Rule’s submission consistent with the decision of the Court of Appeal in Straszewski suprain applying in full the protection for EU treaty rights under the 2006 Regulations but allowing in appropriate cases the application of the policy in the 2007 Act. Thus this construction was coherent and gave effect to both statutory provisions.

Mr Rule submits that the Byczek case was on a limited point, concerning the right to an in-country appeal under the 2002 Act and does not assist with the present issues. The straightforward application of the statutory provisions in this case did not involve a contrived result with duplicated and conflicting bases for appeal as in Byczek. On the contrary, to construe the definition of deportation order in section 38 of the 2007 Act to exclude EEA citizens would undermine the clear policy objective underpinning the 2007 Act, which itself had been carefully crafted to be consistent with the rights of EU citizens under exception 3. It was important to give effect to the words of the statute as enacted.

The definition of deportation order in the 2007 Act section 38 is merely confirmatory that the procedural and supplementary provisions of the 1971 Act are applied by s32(5) of the 2007 Act. Alternatively, so far as necessary, section 38 can be given a straightforward meaning as including the making of deportation orders pursuant to the terms of regulation 24(3), which requires a person to be ‘treated as if he were a person to whom section 3(5)(a) applied’ and section 5 applied accordingly. That meant in terms that the person was to be treated as a person to whom section 3(5)(a) of the 1971 Act applied and accordingly section 5 enabled a deportation order to be made. By virtue of exception 3 that was entirely compatible with European law and the Directive. The construction for which the Defendant contended left exception 3 effectively without any meaning so that it was surplusage and should be rejected.

Miss Smyth submits that the fundamental flaw in the Claimant’s case is that he has no right to be deported. He is subject to the original sentence and is now subject to his licence conditions on release, which requires him to remain in this country. The Claimant can have no complaint if the Defendant does not decide to deport him. In any event the Claimant has now been released and any restriction is by virtue of his licence conditions. However the Claimant has not challenged those conditions as being unlawful. That is his real grievance and to that extent the claim is academic.

In any event there are two separate systems for deportation, one for non-EEA citizens and the other for EEA citizens. Non-EEA citizens are dealt with under sections 32 and 33 of the 2007 Act and section 5 of the 1971 Act, while EEA citizens are dealt with under the 2006 Regulations using the machinery for removal under the 1971 Act. She refers to the Court of Appeal decision in Straszewski in support of the distinction. She submits that this decision demonstrates that the objective of the 2007 Act is incompatible with the 2006 Regulations and the Directive, which do not admit public policy considerations as relevant to the decision on removal.

Irish nationals were in a unique position where special arrangements existed between the two countries. This is reflected in article 2 of the Protocol on the Common Travel Area which permits the UK and Ireland to continue to make specific arrangements relating to movement between their territories.

Hence the Defendant had introduced the special policy approach to deportation of Irish nationals on 19^th February 2007, which is now found in the Defendant’s Guidance dated 6^th October 2015. That guidance makes clear that the Defendant will only consider deportation in cases which involve ‘… crimes that pose a serious risk to the safety of the public or a section of the public – for example a person convicted and serving a custodial sentence of 10 years or more for … a serious sexual …offence’. The Guidance also explains that ‘it is rare that Irish FNOs will be considered exceptional enough to merit deportation’ and that ‘deportation of Irish nationals is only in the public interest in exceptional circumstances.’

It is the Defendant’s position that section 32 of the 2007 Act does not apply to EEA citizens, but that, if it does apply, then it has not been breached.

It is common ground that the 2006 Regulations have fully transposed the Directive. The 2006 Regulations treat removal as including deportation. The Defendant’s decision to deport would be under regulation 19(3)(b) of the regulations. By regulation 24(3) ‘…the person is then to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied and section 5 of that Act (procedure for deportation) and schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.’

She relies on the analysis of the relevant statutory provisions by Jay J in Byczek. In her submission there is no relevant distinction between the provisions in the 2002 Act and those in the 2007 Act in this respect.

In that light she submits that the 2007 Act deliberately defines a deportation order in section 38 as an order under section 5 and by virtue of section 3(5) of the 1971 Act. Thus it applies to deportation decisions made pursuant to section 3(5) under section 5 of that Act. In line with the decision in Byczek, that cannot be the case where the decision is in fact made under regulation 19(3)(b) and the procedural and other provisions under section 5 of and Schedule 3 to the 1971 Act are only applied on the basis that he is to be treated as if he were a person to whom section 3(5)(a) applied. The powers in section 5 of the 1971 Act include making a deportation order under section 5(1). However the definition in the 2007 Act only applies where the deportation order is made ‘by virtue of section 3(5) of the 1971 Act’. Miss Smyth submits that the deportation order is not by virtue of section 3(5) of the 1971 Act but is pursuant to regulation 24(3), which engages the procedural and other provisions following the decision to remove under regulation 19(3)(b) of the 2006 Regulations. Thus both the 2006 Regulations and the 2007 Act respect the scheme behind the Treaty and the separate approach to and treatment of EEA citizens, as acknowledged by the Court of Appeal in Straszewski.

Further she submits that, having regard to the European Treaty and the context reflected in the regime under the 2006 Regulations, it would be a nonsense if sections 32 and 33 of the 2007 Act applied to decisions under the 2006 Regulations in respect of EEA citizens, to whom a wholly separate regime applied. Section 33(4) requires that for the purpose of section 3(5)(a) of the 1971 Act deportation of the foreign criminal is conducive to the public good. But, as pointed out in Straszewski, that consideration has no part in the decision process under regulation 19 of the regulations, to which regulation 21 applies. Thus the definition of deportation order should in any event be construed so as to exclude orders under the 2006 Regulations.

The application of exception 3 for which Mr Rule contends would be contrived and involve the Defendant seeking to carry out a notional decision under the 2006 Regulations to determine whether or not removal would breach the rights of the EEA citizen under European Treaties and, if not, to apply the mandatory presumption under the 2007 Act, which would itself be fundamentally at odds with the approach under the Directive as reflected in the 2006 Regulations.

The proper application of the section 38 definition as set out above is to be preferred so as to preserve the separate legislative and regulatory regime for EEA citizens. Miss Smyth did not give any examples where exception 3 would then apply to a case which would in fact fall within the definition of deportation order for the purposes of the 2007 Act. But in her submission the exception had a role in ensuring that there could not in any event be conflict with EU rights should that ever arise notwithstanding the exclusion under the definition of deportation order.

If there is ambiguity in the effect of regulation 24 and the definition in the 2007 Act in section 38, Miss Smyth relies on the principle that law should be coherent and self-consistent as an aspect of legal policy (Bennion 6^th, ed 2013, section 268). Therefore the ambiguity should be resolved in favour of maintaining consistency and coherence with European law.

On this basis Miss Smyth submits that the Defendant’s policy in respect of Irish nationals in the Guidance not generally to deport Irish nationals except in exceptional circumstances was open to her for the purpose of decisions under regulations 19 and 21 of the 2006 Regulations. That left open consideration of the specific circumstances of an individual case where there might be an exception to the general approach, resulting in deportation. Guidance that an exception is considered where there is a serious risk to the safety of the public allowed full consideration of the factors under regulation 21 in that case before a decision to remove is taken. It is, she submits, impossible to say that the policy is incompatible with or ultra vires the 2006 Regulation. It is not inconsistent with the 2007 Act, which deliberately excludes decisions in respect of EEA citizens under the 2006 Regulations and similarly is not incompatible with the objective of that legislation because it defers to the particular position of EEA citizens under the Treaty in this context.

As the Court of Appeal pointed out in Straszewski, the 2006 Regulations were made under the 1972 Act to transpose into our domestic legislation the requirements of the Directive fundamentally to protect the right to free movement of EU citizens subject to the exceptions under articles 27 and 28. Exceptions from that fundamental right are to be strictly construed. Hence the power to remove an EU citizen can only be exercised in accordance with regulation 19(3) and subject to the requirements of regulation 21.

While regulation 30 of, and Schedule 2 to, the 2006 Regulations do not directly refer to the relevant provisions of the 1971 Act, in my judgement it is clear that the powers to deport an EU citizen under sections 3(5) and 5 of the 1971 Act were necessarily subject to the protective provisions of the 2006 Regulations transposing the Directive. As a matter of construction any residual powers under the 1971 Act could only be exercised so far as they were preserved or applied in accordance with the 2006 Regulations. In so far as it is necessary to refer to any principle of construction in that respect, it would be supported by the principle of favouring a construction which preserves the coherence of statutory provisions and the full transposition of and consistency with European law and the Directive in particular. It would also give preference to what is a particular and subsequent provision for an identified class of individuals over what was an earlier general provision.

I then turn to the 2007 Act. Its statutory purpose was to secure the public objective of securing what was seen as the general public interest in the deportation of foreign criminals. As a principle that would be inconsistent with the EU Treaties and in particular articles 21, 27 and 28 of the Directive as transposed into the 2006 Regulations. Neither party to the present claim disputes that general proposition, but each submits that it is respected by different statutory routes as outlined above.

The 2007 Act covered a wide range of procedural and substantive changes to immigration controls, but sections 32-39 dealt specifically with the ‘Deportation of Criminals.’ In so far as it is relevant, paragraph 18 of the Home Office’s explanatory notes to the Act explains that ‘Clarity around the sentences and the definitions of key phrases in these sections is given in section 38’.

In that context the effect of the definition of ‘deportation order’ for the purposes of sections 32 and 33 in section 38(4)(c) is potentially crucial to the application of those sections. The phrase ‘deportation order’ is used in section 32(5) for the application of the mandatory requirement to make a deportation order. It is also used in section 32(6) for the complimentary provision in respect of revocation of deportation orders. Section 32(5) is expressly subject to section 33. The phrase ‘deportation order’ is used in exception 3, which applies where the removal of a foreign criminal in pursuance of a deportation order would breach rights of the foreign criminal under the EU Treaties. It is also used in section 33(7), which provides that the application of an exception does not prevent the making of a deportation order.

It can be seen that under section 32 a different approach is taken to the application of section 32(4), which applies generally to the application of section 3(5)(a) of the 1971 Act, declaring that the deportation of a foreign criminal is conducive to the public good (subject to the consequential effect of section 33(7) to which I refer below) and section 32(5), which is the mandatory requirement for a deportation order as defined, which is expressly subject to section 33 (although section 33(1) provides that sections 32(4) and (5) are both subject to the exceptions specified in that section). It can reasonably be expected that the drafting of the limitations on section 32(5) in section 33 would have been carefully considered and structured. In principle, as I have said, one would expect that that structure would preserve and incorporate or respect the transposition of the Directive protecting EU citizens. That would be consistent with section 33(1)(b) which makes section 32(4) and (5) subject to sections 7 and 8 of the 1971 Act (which inter alia except certain Irish citizens from deportation pursuant to section 3(5) of the 1971 Act).

The definition of ‘deportation order’ is specifically qualified by two requirements, (1) that the order is ‘under section 5’ of the 1971 Act and (2) that it is ‘by virtue of section 3(5)’ of that Act. As set out above, the structure of the 1971 Act is that, where a person who is not a British citizen is liable for deportation under section 3 of the 1971 Act, a deportation can be made under and in accordance with the provisions of section 5 of and schedule 3 to the Act. To give meaning to both elements to the definition, in my judgement force should be given to both, that is the making of the deportation ‘under’ section 5 and that the power to do so originates ‘by virtue of’ section 3(5). Thus the relevant provisions of sections 32 and 33 are limited to that extent. In the European context a derogation from EU rights is to be strictly construed.

Turning then to the relevant provisions of the 2006 Regulations, in part 4, as part of the provisions relating to ‘refusal of admission and removal, etc.’, regulation 19(3)-(5) provides for removal of EEA nationals in accordance with regulation 21. Regulation 21 applies to a relevant decision which is defined as an EEA decision which is taken on the grounds of public policy, public safety or public health. An EEA decision is defined in regulation 2(1) to include a decision ‘under’ these regulations that concerns a person’s removal from the UK. Regulation 21 then sets out the approach under that regulation to a relevant decision, including a decision to remove an EEA citizen, which is among other things based on the personal conduct of that person and not justified by considerations of general prevention.

That is then followed by Part 5 of the 2006 Regulations, which deals with ‘procedure in relation to EEA decisions’, which is defined as above as decisions ‘under’ the regulations. The procedural provisions generally use the common formula for the various classes of person subject to the regulations that they are ‘to be treated as if they were’ a person involved with related provisions in the 1971 Act or other legislation. Thus regulation 22 applies to persons claiming a right of admission under regulation 11 and they are to be treated as persons seeking leave to enter under stated parts of Schedule 2 to the 1971 Act, which deals with administrative provisions as to control on entry. Regulation 23 applies to persons refused admission under regulations 11 or 19 and they are to be treated as if they were a person refused leave to enter under the 1971 Act for the purposes of stated procedural provisions in Schedule 2 subject to the modifications in that regulation. Pausing there, the basis for claiming a right of admission under regulation 11 and the refusal of admission under that regulation or regulation 19 are substantively distinct from applications for leave and its refusal under the 1971 Act. However, as Jay J pointed out in Byczek, it was convenient in drafting the legislation to adopt the procedural machinery that was already in place under the 1971 Act for the purposes of the decisions concerned under the 2006 Regulations.

By regulation 24(3) persons to be removed under regulation 19(3)(a) are to be treated as if they were a person to whom section 10(1)(a) of their Immigration and Asylum Act 1999 (the 1999 Act) applied and section 10 of that Act is to apply accordingly. Section 10 of the 1999 Act makes procedural provision for removal by notice and the service of removal directions. Thus, where the decision to remove an EEA citizen under regulation 19(3)(a) is taken because he does not have or ceases to have the right to reside under the 2006 Regulations, the procedural provision for removal directions is to apply as if section 10 of the 1999 Act applied.

Against that background it seems to me that regulation 24(3) adopted a similar approach to decisions to remove an EEA citizen under regulation 19(3)(b) in accordance with regulation 21. Such a person is ‘to be treated as if he were’ a person to whom section 3(5)(a) of the 1971 Act applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provisions as to deportation) ‘are to apply accordingly’. In my judgement someone who is to be treated ‘as if he were’ a person in a particular position is different from applying the relevant provision to that person so that the decision is made under or by virtue of that provision. Accordingly the decision to remove would not in my judgement be made by virtue of section 3(5)(a) of the 1971 Act.

What then of the effect of section 5 and Schedule 3, which are to apply ‘accordingly’? In my view the answer to that question is straightforward, that is that the provisions for deportation orders in section 5 and Schedule 3 are to apply ‘as if the person were a person to whom section 3(5)(a) applied’. Thus the Defendant has a discretion whether or not to make a deportation order in accordance with the provisions in section 5 and the Schedule. However, for the purposes of the definition in section 38(4)(c) of the 2007 Act, whether or not the deportation order is properly regarded as being made under section 5 for this purpose, it is not made under that section ‘by virtue of’ section 3(5) of the 1971 Act, but because the person is to be treated ‘as if he were’ a person to whom that subsection applied by virtue of regulation 24(3) of the 2006 Regulations. That construction seems to me to give full weight to the statutory language but also respects the statutory objective of the provisions concerned.

I am reinforced in the conclusion to which I have come on the construction of these provisions in that it seems to a large extent consistent with the analysis by Jay J in Byczek, albeit applied to different statutory provisions.

I should, however, note that I do not accept that deportation and removal are necessarily treated as the same administrative process under the 2006 Regulations. As I have pointed out, it seems to me that regulation 24(3) provides for the decision on removal under regulation 19(3) but leaves the making of a deportation order to be addressed under the 1971 Act. Regulation 2(1) defines ‘deportation order’ as an order ‘pursuant to’ regulation 24(3). In my judgement that is apt as a reference to a deportation order that is made under section 5 of the 1971 Act ‘pursuant to’ the provisions of regulation 24(3) to which I have referred above.

If it is correct that a deportation order that is made as a result of regulation 24(3) does not come within sections 32 and 35 of the 2007 Act, it is important to see how those provisions in the 2007 Act would then operate. The Defendant would not be required to make a deportation order under section 32(5) and the revocation provisions under section 32(6) would not apply. However the statutory assumption for the purposes of section 3(5)(a) of the 1971 Act would apply save to the extent that under section 33(1) and exception 3 removal of the foreign criminal in pursuance of a deportation order (as defined) would breach the rights of the foreign criminal under the EU treaties. That envisages that there was a situation where the 1971 Act provisions were engaged directly (as opposed to under the 2006 Regulations). If that arose, it would in my judgement be entirely apposite that the exception should apply to secure the coherence of the statutory provisions with the Directive and European law. While I acknowledge that no example of this was given, it does not seem to me that, even if it were unnecessary as a provision, this would outweigh what seems to me to be the persuasive reasons that support the approach to construction which I have set out above.

For similar reasons section 33(7)(a) would apply on the same basis to a deportation order that would be made by virtue of section 3(5) of the 1971 Act. Section 33(7) would be consistent with exception 3 in that, if it applies, the result would be to remove the effect of section 32(4) and require an assumption that deportation is neither conducive nor not conducive to the public good, which in principle would seem consistent with the Directive and, so far as relevant, regulation 21.

So far as the Defendant’s policy and guidance is concerned, it seems to me open to the Defendant to have adopted a policy that provided for a general rule so far as Irish national offenders are concerned, while enabling specific cases to be considered as an exception in accordance with regulations 19 and 21 of the 2006 Regulations, at least so far as compatibility with the regulations and the Directive are concerned. I do not accept that there would be any conflict with the statutory objective underpinning the 2007 Act in that in my judgement those provisions were deliberately only applied to deportation orders made by virtue of section 3(5) of the 1971 Act and to that extent did not apply to cases concerning EEA nationals under the 2006 Regulations.

In contrast to the above it seems to me that the construction for which Mr Rule contended fails to give effect to the statutory wording in context or the coherence of these provisions with each other or the Directive. In my judgement the statutory route to preserve the effect of the Directive as transposed through the 2006 Regulations by imposing the statutory assumption and requirement under section 32(4) and (5) subject to an assessment under regulations 19 and 21 before determining whether in fact exception 3 applies is contrived and fails to give full effect to the actual wording used in regulation 24(3).

For all the above reasons in my judgement the policy or practice regarding the deportation of Irish nationals is not ultra vires the legislative provisions of the 2007 Act and this ground accordingly fails.

On 16^th July 2012 the Claimant was notified that the Defendant was considering his liability to deportation on grounds of public policy. On 23^rd August 2012 the Defendant received a letter from the Claimant’s solicitors stating that the Claimant wished to be deported as soon as possible. On 27^th September 2012 the Defendant informed the prison authorities for communication to the Claimant that deportation was unlikely. On 4^th September 2013 in response to a question from the Claimant the Defendant noted that it was very unlikely that deportation would be pursued but that the Claimant’s case had not been formally considered. On 16^th April 2013 the Defendant wrote to the Claimant’s solicitors noting that the Claimant’s potential ERS date was 29^th November 2015 but that his case would not be allocated for removal to be considered until 18 months beforehand. The Claimant’s solicitors were subsequently told that the Claimant’s case would only be considered about eight weeks before the ERS date. On 31^st July 2014 the Claimant’s solicitors wrote to the Defendant, asking that she now consider the Claimant’s suitability under the ERS. On 27^th June 2015 the Defendant says that the Claimant was told in a prison surgery that he would not be liable to deportation unless informed otherwise. In a telephone conversation on 16^th November 2015 the Claimant’s solicitors were informed that the Defendant did not ordinarily deport Irish nationals because they were better managed in the UK.

On 19^th November 2015 the Claimant’s solicitors wrote to the Defendant a pre-action protocol letter. The letter referred to the previous exchanges between the parties, contending that there had been a failure properly to consider the Claimant’s case. In summary the letter required a decision within a prescribed timescale and an order for his removal under the ERS and referred to the inadequacy of the reasons that had been given to date.

On 17^th December 2015 the GLD responded to the letter. In response the letter summarised the ERS and explained that it did not apply to a person where the Defendant had made the decision not to deport. The letter continued:

“The Home Office has not previously made a final decision in relation to the deportation of your client, although there has been fairly consistent advice to HMP Frankland and your client via (Home Office) staff who visit the prison informing your client that it is unlikely the Home Office would take deportation action against an Irish national. Specifically in June 2015 during a surgery session at HMP Frankland your client was advised that, unless he was informed otherwise, he was not liable for deportation. The Home Office has now reviewed your client’s case and has decided that he will not be deported. We enclose a copy of the decision letter from the Home Office.”

The letter then set out the Defendant’s policy for deportation of Irish nationals, as set out earlier in this judgement. It continued:

“The Home Office has decided that, although your client committed a serious sexual offence and was sentenced to more than ten years in prison, he does not meet the exceptional circumstances required under the above policy.”

In the enclosed letter dated 9^th December 2015 the Defendant referred to the Claimant’s conviction and sentence and to the power to remove an EEA citizen in accordance with regulation 21 of the 2006 Regulations and explained that, where such a decision is taken, removal would be by way of deportation in accordance with regulation 24(3). The letter continued:

“The Secretary of State has given consideration to your conviction but has decided to take no action on this occasion. If you commit further offences, the Home Office may seek to pursue your deportation.”

I should also record that as part of her summary grounds the Defendant produced an internal memorandum from a casework officer to Andrew Jackson, the officer administratively responsible for the decision. The memorandum recommended not to pursue deportation. The report advised that it was arguable that the Claimant did not meet the exceptional criteria required and that his risk was best managed in the UK. Among other considerations the memorandum advised that NOMS had confirmed that there was no obligation on the Irish authorities to monitor the Claimant in Ireland.

In the week before the hearing the Defendant disclosed a further exchange of emails, in which the casework officer was asked by Andrew Jackson whether he was right to assume that the Claimant would not be subject to any supervision if removed to Ireland whereas in the UK he would be subject to the full range of probation measures. The casework officer responded:

“Yes, that’s right. NOMS have said that the Irish would not put any monitoring arrangements in place for someone that isn’t being repatriated under the PTA. (The Claimant) would be subject to close supervision if released in the UK.”

Andrew Jackson’s reply was:

“Thank you – I therefore agree that we should not pursue deportation.”

The decision letter was dated the same day.

In response to that exchange the Claimant relies on the witness statement of the Claimant’s solicitor, Dean Kingham, who sets out what he was told by senior officers of the Irish probation service including that there is supervision and support for sex offenders in Ireland and a system of notification.

There was no statutory requirement for reasons in this case. As to any requirement for the giving of reasons I was referred to R v SSHD ex p Doody 1994 1 AC531 at p 560D where Lord Mustill said:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

At page 564 F Lord Mustill continued:

“I accept without hesitation, and mention it only to avoid misunderstanding, that the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied, and I agree with the analyses by the Court of Appeal in Reg. v. Civil Service Appeal Board, Ex parte Cunningham [1991] 4 All E.R. 310 of the factors which will often be material to such an implication. …The giving of reasons may be inconvenient, but I can see no ground at all why it should be against the public interest: indeed, rather the reverse. This being so, I would ask simply: Is refusal to give reasons fair?”

In R v Civil Service Board ex p Cunningham [1991] 4 All ER 310 McCowan LJ had set out the following factors as relevant in this respect:

“1.

There is no appeal from the board's determination of the amount of compensation.

2.

In making that determination the board is carrying out a judicial function.

3.

The board is susceptible to judicial review.

4.

The procedure provided for by the code, that is to say the provision of a recommendation without reasons, is insufficient to achieve justice.

5.

There is no statute which requires the courts to tolerate that unfairness.

6.

The giving of short reasons would not frustrate the apparent purpose of the code. 7. It is not a case where the giving of reasons would be harmful to the public interest.

These considerations drive me to the view that this is a case where the board should have given reasons and I would, therefore, dismiss the appeal.”

In R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242 Sedley J as he then was summarised the court’s conclusions in that case at p 263a:

“In summary, then: (1) there is no general duty to give reasons for a decision, but there are classes of case where there is such a duty. (2) One such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right. (3) (a) Another such class is where the decision appears aberrant. Here fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengeable) or apparent; (b) it follows that this class does not include decisions which are themselves challengeable by reference only to the reasons for them. A pure exercise of academic judgment is such a decision. And (c) procedurally, the grant of leave in such cases will depend upon prima facie evidence that something has gone wrong. The respondent may then seek to demonstrate that it is not so and that the decision is an unalloyed exercise of an intrinsically unchallengeable judgment. If the respondent succeeds, the application fails. If the respondent fails, relief may take the form of an order of mandamus to give reasons, or (if a justifiable flaw has been established) other appropriate relief.”

As to the adequacy of reasons, in South Bucks DC v Porter (no 2) [2004] 1 WLR 1953 Lord Brown set out the relevant principles at paragraph 36:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

In this case Miss Smyth also relied on the decision of the High Court in Northern Ireland in Doherty 2016 24^th June COL9998, which was another deportation case and where Colton J said at paragraph 44 and following:

“44

In my view, the two fundamental problems with this approach and the entire application are that firstly it assumes the applicant has a legally enforceable right to removal/deportation and secondly that the legal basis of the restriction of his right to return to the Republic of Ireland is a decision of the Home Office.

45

In relation to the first point deportation/removal is in fact a restriction on a person's right of movement. It is something imposed by the state in the public interest. It is for this reason of course that the process and procedure provides for safeguards by way of appeals. Decisions to deport/remove are also subject to challenge by way of judicial review. It may well be the case that a person can consent to an order if imposed but I do not believe that an applicant can simply insist upon removal/deportation on a voluntary basis. Of course this is why there is no mechanism for an appeal when the Home Office as in this case has decided that it is not in the public interest to deport or remove the applicant. In my view this should also extend to any judicial review of such a “decision”.

46

In relation to the second, and perhaps more important point, the applicant fails to focus or identify the true legal basis for any restriction on his movement. The reason why the applicant is not free to return to the Republic of Ireland and why there may be an interference with his Article 8/Article 7 rights is that he is subject to a lawful sentence imposed by the courts in this jurisdiction. Of course that decision could not reasonably be challenged by way of judicial review as any interference arising from this sentence would clearly meet the test of being in accordance with law and necessary in a democratic society in pursuance of a legitimate aim. Any restriction arising from the sentence would clearly be proportionate. Indeed, I note that within the supervision being exercised by the Probation Service, the applicant has been able to visit his partner on a number of occasions and it may well be the case that this will increase as he comes near the end of his licence. Thus it appears that his Article 8 rights are clearly being taken into account by the Probation Service. Analysed properly it seems to me that this is the basis for the restriction on the applicant's movement and not the failure to deport/remove him under the immigration regime.”

Mr Rule submits that as to the implication of a duty to give reasons the decision was of considerable significance for the Claimant. It was a case where he had sought deportation as the Defendant knew and where he met the policy criteria for consideration for deportation. However, he had not been given any sufficient reasons why he was rejected or what was the basis on which it was decided that he did not meet the relevant criteria, whatever they might be. The consequence was that the Claimant had been in custody until his automatic release date on 25^th August 2016, because the refusal of deportation meant that he did not benefit from the ERS under which he would or could have been released on 29^th November 2015. When he was released on 25 August 2016, he was required to remain in this country subject to the supervision of the Probation Service. He would thus be required to remain in a foreign country against his will until 25^th February 2022. The effect of the deportation decision directly affected his liberty and the circumstances in which and the place where he was detained, very much in line with the concerns considered by Lord Mustill in Doody. He submits that as a matter of fairness in this case the Defendant was under a duty to give proper reasons for her decision not to deport the Claimant on 9^th December 2015.

The letter dated 17^th December 2015 from the GLD was primarily responding to the pre-action protocol letter dated 16^th November 2015, as well as enclosing the decision letter on deportation. The enclosed letter dated 9^th December 2015 gave no reasons whatever. The letter dated 17^th December told the Claimant nothing about what were the exceptional circumstances required or why he did not meet them. He was not able to know whether the decision was lawful or on what points he should be making further representations or how in the future he might seek to meet the exceptional circumstances required. Thus the reasons were inadequate and he had been treated unfairly.

Moreover, in this case it is plain from the documents subsequently disclosed by the Defendant, including those disclosed the week before the hearing, that the decision maker had made the decision on the basis of an assertion that the Irish probation service would not put any arrangements in place for the Claimant, as reflected in the exchange of emails between the Defendant’s officers a few minutes before the decision was made. That was contrary to information subsequently given to the Claimant’s solicitor, as set out in his witness statement dated 24^th November 2016. If adequate reasons had been given at the time, the Claimant would have been able to challenge this flawed basis for the decision and take the other steps referred to.

He distinguishes the decision in Doherty in that, inter alia, the challenge in that case was on the grounds that the policy was discriminatory in excluding that Claimant from consideration for deportation, while in this case the Claimant clearly satisfied the terms of the policy for consideration.

Miss Smyth submits that the duty to give reasons, where it is implied, is a facet of the common law duty of fairness. That is to be judged as part of the overall effect of the course of events as to whether the requirement of fairness is met in a particular case.

In this case there was no statutory requirement for reasons and no general duty which could be implied. There was no right to deportation for the reasons set out in Doherty. The reason for the restriction on his liberty in this country was the sentence that had been lawfully imposed, including the provisions for release on licence in this country.

In any event, in so far as there was any requirement for reasons to be implied as a matter of fairness (which was not accepted), sufficient reasons had been given.

First the Claimant had been informed of and can be assumed to have been well aware of the Defendant’s policy, which formed the basis for the decision. Second, the letter dated 17^th December 2015, which enclosed a copy of the decision letter dated 9^th November 2015, set out the Defendant’s effective reasoning for the decision. The letter referred to the policy for Irish nationals, which was summarised in the letter. The letter explained that the Defendant accepted that the Claimant qualified for consideration as someone who may be appropriate exceptionally for deportation, but that he did not meet the exceptional circumstances required under the policy.

That was sufficient reasoning for the Claimant to know the basis of the decision and to make further representations. Moreover, there was nothing on the face of the decision which indicated inconsistency or any other error of law. In the light of the reasons given in the letter dated 17^th December 2015 the Claimant could be in no doubt as to the reasons for the decision.

In respect of the internal memorandum to the decision making officer dated 8^th December 2015, this was not part of the reasons and was not relevant as such to the permitted ground for judicial review, which was in respect of ‘the failure to give any or any adequate and sufficient reasons for the decision.’ That applied a fortiori to the email exchange between the case officer and Andrew Jackson. No application had been made to add a ground or amend the ground on which permission had been given. Hence the witness statement from the Claimant’s solicitor as to the supervision arrangements in Ireland was irrelevant, as it only went to the decision that was made, not the reasons that had been given.

I accept that the Claimant did not have a right to deportation and was not deprived of any right as a result of the decision. It was for the Defendant to determine whether it would be justified to deport the Claimant on the basis of the considerations in regulation 21 of the 2006 Regulations in accordance with her adopted policy. In substance therefore the Claimant was entitled to expect the Defendant to consider his case in accordance with her published policy or to explain why she had not done so. The policy was to consider the Claimant’s case in the specified circumstances. It was not that he would be treated as an exceptional case and deported. In the present case the Defendant explained that she had considered the Claimant’s case in accordance with her policy as to whether his was an exceptional case where deportation would be appropriate.

In fact in this case reasons were given and the case is therefore also that the reasons given were inadequate to enable the Claimant to know the basis for the decision so as to be able to assess that it was lawful and to address the points on which the decision was made in further representations. I should add that in my judgement the reasons given in the GLD’s letter enclosing the decision letter were relevant as reasons for the decision in considering fairness.

In considering the question as to whether there was in fact a duty to give reasons in this case and, if so, whether the Defendant had failed to give adequate reasons relevant considerations appear to me to include the following:

In the light of the above and applying the principles set out in the authorities set out above, I consider that in this particular case as a matter of fairness there was a duty on the Defendant to give reasons. However, those reasons could be brief. In my judgement it was sufficient for the Defendant to explain that the Claimant had been considered in accordance with the Defendant’s adopted policy, but it had been concluded that his case was not sufficiently exceptional for deportation. In my judgement the Defendant was not required as a matter of fairness or otherwise to set out in any more detail the factors which she took into account in concluding that an exceptional case had not been made out or to explain what the Claimant would have to demonstrate to satisfy the requirement for exceptional circumstances. By its nature that assessment by the Defendant could not be made on any predetermined set of rules. In my judgement it was sufficient for the Defendant through the GLD to set out in the accompanying letter the policy that had been applied and the conclusion that had been reached that the Claimant’s case was not sufficiently exceptional.

I do not place weight on the internal memorandum or the email exchange in coming to this conclusion. The permitted ground was in respect of the failure to give adequate reasons. There has been no application to add a ground in respect of the decision itself. In these circumstances it does not seem to me that this additional material is relevant to the ground of challenge with which I am concerned.

For the above reasons I conclude that the Defendant in this case gave adequate reasons for her decision and this ground accordingly also fails as does this application for judicial review.