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

The claimant seeks judicial review of his detention under immigration powers since 8 June 2017; and of the defendant’s decision dated 24 September 2017 to refuse to revoke a deportation order made in respect of the claimant (‘the revocation decision).

Rule 54.5(1) of the Civil Procedure Rules (CPR) provides that a claimant must file a claim for judicial review promptly and in any event not later than three months after the grounds to make the claim first arose. The claimant seeks to challenge his detention since 8 June 2017. This claim for judicial review was filed on 14 December 2017, six months after detention commenced. The claimant also seeks to challenge the revocation decision of 25 September 2017 in which the defendant refused to revoke the deportation order dated 23 March 2016. These proceedings were filed almost three months after that decision was made and served upon the claimant. There is additional information before me indicating that there were difficulties in obtaining instructions from the claimant. to make the application for Legal Aid.

In my view, while there was clearly delay in bringing a challenge to the claimant’s detention from 8 June 2017, I accept Mr Amunwa’s submission that the main challenge is directed at the refusal on 25 September 2017 to revoke the deportation order. The challenge itself to the revocation decision was made within three months, and whilst I accept the general principle that proceedings for judicial review should be brought promptly, I have concluded that the claimant should be permitted to pursue his claim, and I grant an extension of time to pursue the challenge to the decision to detain made on 8 June 2017 and the revocation decision made on 25 September 2017.

The chronology:

The deportation decision was taken on 23 March 2016. That decision was made under Regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 ('the 2006 Regulations'). Regulation 19(3)(b) of the 2006 Regulations reads as follows:

Regulation 21 of the 2006 Regulations insofar as it is relates to decisions taken on public policy, public security and public health grounds

The test of public policy, security and health is contained in the 2016 Regulations. Regulation 21 of the 2006 Regulations was substantially transposed into Regulation 27 of the Immigration (European Economic Area) Regulations 2016 ('the 2016 Regulations'). The following material additions were made by Regulation 27 of the 2016 Regulations.

Regulation 27(5)(c) of the 2016 Regulations transposes Regulation 21(5)(c) of the 2006 Regulations, but adds the following clause:

Regulation 27(5)(f) of the 2016 Regulations provides an additional principle to those set out in Regulation 21(5) of the 2006 Regulations as follows:

Further, by virtue of Regulation 27(8) of the 2016 Regulations it was provided that:

Regulation 32(5) of the 2016 Regulations provides as follows:

Regulation 34 of the 2016 Regulations allows for an individual who has been made the subject of a deportation order to apply to the defendant for that deportation order to be revoked on the grounds that his circumstances had changed materially since the deportation order was made. However, such an application can only be made once an individual has left the UK.

The statutory scheme provides that EEA citizens who are subject to deportation action by the defendant on the basis of public policy or public security are afforded three levels of protection by both the 2006 and 2016 Regulations. First, the ordinary level of protection afforded to EEA citizens who have not established a permanent right to reside in the UK. Their protection is found in Regulation 21(5) of the 2006 Regulations/Regulation 27(5) of the 2016 Regulations. Second, a greater level of protection is afforded to those who have established a permanent right to reside in the UK, which is found in Regulation 21(3) of the 2006 Regulations/Regulation 27(3) of the 2016 Regulations, which provide that an EEA citizen with a permanent right to reside may not be removed except on serious grounds of public policy or public security. Third, the highest level of protection is afforded to those who have obtained a permanent right of residence in the UK and who have resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision. Regulation 21(4) of the 2006 Regulations/27(4) of the 2016 Regulations provides that a decision to remove such a person may not be taken except on imperative grounds of public security.

Mr Amunwa submits that the claimant has been permanently resident in the UK for a period over 20 years as a result of which he cannot be deported except on imperative grounds of public security. While he does not dispute the Portuguese convictions, he challenges the information provided by the Belgian authorities, in relation to the convictions between 2006 and 2013. He is critical of the fact that there are no certificates of conviction. He accepts that the claimant was extradited from the UK to Belgium and remanded in custody to stand trial for an indecent assault on a 16 year old in 2013, and that he was sentenced to two years imprisonment. Mr Amunwa concedes that the claimant was in prison on remand in Belgium between 13 June 2013 and 31 July 2013 before he was released. He maintains that the other Belgian convictions were entered in the absence of the claimant. He submits that the claimant’s period of continuous residence for the purpose of acquiring permanent residence was uninterrupted. Mr Amunwa relies upon a number of matters to demonstrate that the claimant was living in the UK during the relevant period, claims for incapacity benefit, income support and a medical appointment in 2006, at times when he was said to be serving a custodial sentence in Belgium. He also relies upon the existence of a public sector tenancy from 2009.

Mr Amunwa submits from 28 April 2016 the claimant had acquired permanent residence in the UK, having exercised treaty rights on a self-employed basis since September 2003 until becoming incapacitated from 28 April 2006, after which time he acquired retained worker status and thereby acquired the right of permanent residence early (pursuant to regulations 4(1)(b) and 5(2)(a) of SI 2000/2326). He submits that there is no principled basis for going behind the factual findings of the First Tier Tribunal (FTT) that the claimant had worked on a full time basis between 2003 and 2006; and that subsequently he was in receipt of benefits. Counting backwards for a continuous period of 10 years from the date of the deportation decision, 23 March 2016 to 23 March 2006, he says the evidence shows that the claimant is entitled to the highest form of protection available under SI 2016/1052 regulation 27(4), namely: ‘imperative grounds of public security’. He maintains that the defendant did not consider, adequately or at all, the requirements in regulation 27(3) in deciding to detain and/or refuse to revoke the deportation order against the claimant. Should it be contended that the claimant was imprisoned in Belgium prior to acquiring permanent residence on 28 April 2006, then the defendant is put to strict proof of the same.

Mr Irwin submits that the claimant has failed to give a consistent and reliable history of his residence in the UK, whether it was during the 1990s, or earlier, or in the 2000s. The deportation decision itself records that he claimed to have entered the UK in 2005/2006. The claimant's previous legal team wrote to the Defendant on 23 December 2015 stating that the claimant "came to the UK in 2005/2006 has since then lived continuously in the United Kingdom for about ten years." When detained by the defendant on 8 June 2017, in the course of a medical and family questionnaire, the claimant said that he had been in the UK for 44 years. His witness statement for these proceedings refers to over 20 years.

Mr Irwin relies on the conviction history in Portugal and Belgium to conclude that the claimant was not resident in the UK in the 1980s and 1990s. In Portugal, a conviction for drugs and possessing a prohibited weapon on 7 May 1986, sentenced to 7 years 6 months' imprisonment; a conviction for murder on 25 May 1992 sentenced to 17 years' imprisonment. In Belgium, a conviction for indecent assault with violence or threats, against a minor of under 16 years of age. The Claimant was sentenced to a period of two years' imprisonment with partial imprisonment duration of one year and partially suspended for 5 years. The date of the offence was 16 July 2005. Further convictions in Belgium between 2006 and 2013 for thirteen offences. These included a conviction for malicious hindrance to rail, road, river or maritime traffic for which the Claimant received a 15 month sentence of imprisonment; the offence was committed on 28 March 2005. He submitted that the defendant was entitled to rely upon the information from the Belgian authorities indicating that he was not permanently resident in the UK during that period. It is the defendant’s case that the claimant’s assertion that he had been resident in the UK is inconsistent with him running a construction company in Belgium and working for cash-in-hand in the UK in shops, restaurants and petrol stations in the relevant period.

Mr Irwin submits that whilst the First Tier Tribunal held that the Claimant had worked on a full time basis between 2003 and 2006, there is nothing in the decision which suggests that the First Tier Tribunal was aware of the Claimant's convictions or imprisonment in Belgium; or indeed of his periods of imprisonment in Portugal. He submits that it is highly material because the last period of imprisonment in Belgium was in 2013, which would break the continuity of residence which the claimant required in order to establish permanent residence in the UK. He points out that the First Tier Tribunal decision was made in the absence of the presenting officer from the DWP. Accordingly the claimant's evidence was not challenged in the course of that hearing.

In my view, whilst these matters may or may not indicate that he was resident in the UK for periods of time between 2006 and 2016, the defendant was entitled to rely upon the information from the Belgian authorities that he had been convicted of offences for which he had received custodial sentences. On any view the certificate of detention from the director of the prison at St Gilles Establishment shows that he was in custody between 13 June 2013 and 31 July 2013. I am satisfied on that basis, that the claimant’s right to permanent residence can be interrupted by any period of imprisonment, whether it is inside or outside the jurisdiction. I am informed that there is no authority to indicate what the position is if the sentence of imprisonment is served in a foreign jurisdiction. I accept Mr Irwin’s submission that it would be illogical for such a sentence not to interrupt the period. I do not accept the proposition that the interruption only applies to criminal offences committed in the host Member State, not a third Member State. The reality is that during the period of imprisonment overseas a person would not be able to establish his right to permanent residence in the UK.

I also accept Mr Irwin’s submission that decision of the First Tier Tribunal was not conclusive. An examination of the decision shows that the hearing took place in the absence of a presenting officer and the DWP, on the third occasion it had been listed. There is a very short summary judgment based on the claimant’s unchallenged evidence.

I should add that the claimant was first notified of his liability to deportation on 25 November 2015 (the date upon which the letter of 23 November 2015 was served). It informed the claimant that he was obliged to inform the defendant of any reasons or grounds upon which he said that he should be permitted to remain in the UK as soon as reasonably practicable. The claimant was offered the opportunity to make representations as to why he should not be deported. At that time the claimant had the benefit of legal representation. The claimant’s legal team did not make any representations until 11 December 2015. The claimant had a right of appeal to the First Tier Tribunal against the Defendant's decision dated 23 March 2016. He attempted to lodge an appeal against that decision on 11 October 2016, which was out of time. The First Tier Tribunal refused to admit the appeal. The claimant did not appeal the First Tier Tribunal's decision.

For the reasons set out above I am satisfied that it was open to the defendant to conclude that the claimant did not qualify for the additional protections afforded by Regulations 21(3) or (4) of the 2006 Regulations, and that it was lawful to take the deportation decision on 23 March 2016. It follows that I do not consider that the issue of enhanced protection from deportation under regulation 27(4) arises.

If I am wrong in concluding that the defendant was not entitled to reach a decision on the basis that the claimant had not acquired a permanent right to reside in the UK, I have gone onto consider whether she was entitled to conclude that the claimant should be deported on the grounds of public policy or public security.

Mr Amunwa submits that the claimant’s detention between 8 June 2017 and 25 September 2017 was unlawful because the defendant was unable to remove the claimant lawfully following his representations on revocation of the deportation decision were determined on 25 September 2017. He submits that there was a legal barrier to the claimant’s removal. He submits that the detention may only be justified where expulsion is justified. He states that the defendant failed to give any adequate consideration of the safeguards in Article 27(2) at the time of the decision to detain or thereafter. He places reliance upon the fact that the defendant had failed to take into consideration that the claimant has never been convicted of a crime in the UK. He submits that the defendant’s decision to detain failed to properly engage with the requirements of proportionality and necessity.

Mr Amunwa also submits that detention is unnecessary because the claimant complied with bail for a period of 6 months from 29 December 2016, to 5 January 2017, tagged and complied fully with his reporting requirements. He was re-detained upon reporting on 8 June 2017, with no appeal outstanding. He says that immigration bail is a less intrusive measure that could have achieved the same result of maintaining contact with the claimant whilst the defendant sought to progress his removal. It appears that he has previously complied with police bail in 2008 and December 2012 to January 2013.

Mr Irwin relies upon the grounds for deportation decision of 23 March 2016 being public policy or public security. He submits that it was open for the defendant to consider whether the claimant's deportation was justified on grounds of public policy or public security. She correctly identified the relevant principles as provided in Regulation 21(5) of the 2006 Regulations. The defendant considered the nature and seriousness of the claimant's offending, including murder, drugs and sexual offences; she considered the pattern of repeat offending, stretching from the 1980s to the 2000s; and she considered whether there was any evidence that the claimant had addressed the reason for his offending.

On the basis of the claimant’s criminal record, he maintains that the Defendant was entitled to conclude that there was both a risk of reoffending risk of serious harm to the public. In these circumstances, the defendant was entitled to conclude that even if the claimant had permanent residence in the UK as a result of five years' residence, the requirement for serious grounds of public policy was satisfied and that the risk posed by the Claimant was sufficiently serious for deportation to be justified even if he had established a permanent right of residence for the purposes of Regulation 21(3) of the 2006 Regulations/27(3) of the 2016 Regulations. He refers me to the deportation decision which, as required by Regulations 21(5)(a) and 21(6) of the 2006 Regulations, the defendant considered the issue of proportionality, rehabilitation and prejudice. The Defendant concluded that the claimant's deportation was justified on the basis that there was a real risk of future reoffending. The claimant was assessed as posing a threat of serious harm to the public. The defendant considered whether the Claimant's deportation would breach the UK's obligations as encapsulated in the 2006 Regulations and concluded that it would not.

The defendant proceeded to certify the claimant's case pursuant to Regulation 24AA of the 2006 Regulations. The effect of that certification was that any appeal was not suspensive of removal from the UK.

Mr Irwin submits that the defendant's revocation decision of 25 September 2017 substantially repeats the analysis set out in the deportation decision. In addition to adopting the analysis in the deportation decision, the defendant noted that the claimant had still failed to provide any evidence that he was exercising treaty rights prior to 2006 and that the claimant was sentenced to periods of imprisonment in Belgium between 24 April 2006 and 13 June 2013. Those periods of imprisonment interrupted the claimant's claimed period of residence in the UK. She also noted that there was no evidence that the claimant had established significant ties in the UK or had lost ties in Portugal. She considered the claimant's state of health. concluding that the deportation decision should be maintained.

Mr Irwin submits that the claimant's case has no merit and is an abuse of process. He relies upon the fact, first, that the claimant was not entitled to apply for revocation of the deportation order whilst in the UK. He submits, second, that the claimant's representations dated 21 December 2016 were directed at the making of the deportation order and not at a material change in the claimant's circumstances. It is the defendant’s case that if the claimant wished to challenge the deportation order from 23 March 2016, the proper route to do so would have been an appeal. It is an effort to circumvent the proper appeal route and was therefore an abuse of process. In this case, neither of those requirements was met. The failure to meet those two requirements of Regulation 34 of the 2016 Regulations was in itself sufficient for the Defendant to refuse to revoke the deportation order.

I accept Mr Irwin’s submissions that on the basis of the information available, the defendant was entitled to conclude that the claimant continued to pose a risk of serious harm to the public through his history of previous offending and risk of re-offending notwithstanding that he had not committed any criminal offences in the UK. The information available from the Belgian authorities indicated a substantial pattern of offending between 2006 and 2013, including an offence of indecent assault on a minor for which he was sentenced to a term of imprisonment. Even if the claimant had permanent residence in the UK as a result of five years' residence, I am satisfied and that the defendant’s decision that the requirements for risk of serious harm to the public and serious grounds of public policy was lawful.

Similarly the subsequent decision on the application to revoke the deportation decision was properly made. The application to revoke a deportation order must be made out of country. In this case the claimant remained in the UK. The basis of an application for revocation must be that there has been a material change in the circumstances since the deportation order was made. In this case the claimant failed to put forward a change in circumstances. Instead the claimant sought to argue that the deportation order should not have been made, which if it was to have been challenged, should have been subject to an appeal, which, in this case, was made out of time and dismissed.

I accept Mr Irwin’s submissions that the claimant's detention was lawful from 8 June 2017 to 25 September 2017, which was the date of the revocation decision. For the reasons set out above, in the circumstances of the claimant’s criminal record, the defendant was entitled to detain him pending enforcement of the deportation decision. In any case, since the claimant did not have a right to make such a request in-country it did not represent a barrier to removal. After 25 September 2017, I reach the same conclusions in the context of the deportation decision, however, I have gone onto consider the application of the second, third and fourth Hardial Singh principles, formulated in R (I) v SSHD [2002] EWCA Civ 888, namely, that the duration of the claimant’s detention is excessive in the circumstances, that there never has been a prospect of removal within a reasonable period of time and that the defendant has failed to act with reasonable diligence and expedition to effect removal.

Mr Amunwa submits that the period of detention is excessive in the circumstances. He draws my attention to the fact that the claimant reaches evidence Level 2 under the AAR policy. He has been noted as being at high risk of self-harm and suicide, with an attempted hanging on 14 April 2016. His health appears to have deteriorated in detention. He suffers from a wide range of health conditions, related, but not exclusively, to hepatitis C. For vulnerable detainees, the period of time that is considered reasonable ought to be shortened according to their particular circumstances. He says that the claimant presents a low risk of absconding or re-offending. He can be better managed in the community, as he was while on bail for over 6 months.

Mr Amunwa submits that there is no prospect of removal within a reasonable period of time. There is an issue between the parties as to whether the claimant had failed to co-operate with the Emergency Travel Document (ETD) interviews on 21 July and 4 August 2017. Mr Amunwa says that on 5 and 21 July 2017, the interview was postponed due to a bail application, and on 4 August 2017, the claimant complied with the interview but refused to consent to voluntary return. The reality, as shown by the email, is that the Portuguese embassy will not issue an ETD without the claimant’s consent, which the claimant is unwilling to give. He submits that refusal of voluntary return is not a ‘trump card’ that can justify indefinite detention. The claimant’s refusal is based upon his lack of ties in Portugal and the extent of his integration in the UK. His detention reviews acknowledge the lack of momentum and seek a release referral as recommended by the review panel. He reminds me that the claimant has no criminal convictions in the UK, which he says weighs heavily in favour of release

There is also a further legal barrier which arises, following the expiry of two years from the deportation decision on 23 March 2016, requiring the defendant to make a fresh consideration of his claim. On 17 May 2018 the defendant requested evidence of any material change of circumstances since the deportation order was made, to be received by 15 June 2018. The defendant is required to consider these prior to a further decision on whether to revoke the claimant’s deportation order due to a material change of circumstances. Mr Amunwa submits that the defendant has therefore been unable to remove the claimant since 23 March 2018 and he remains unable to remove the claimant until he has re-considered the claimant’s case.

He also submits that the defendant failed to act with reasonable diligence and expedition contrary to the fourth Hardial Singh principle in the circumstances of the case.

Mr Irwin submits that the defendant has at all material times reasonably concluded that there is a realistic prospect of removal within a reasonable period. The sole barrier to removal apart from these proceedings is the lack of an ETD, which he submits has not been obtained because the claimant has failed to comply with the ETD process. He says that the claimant refused to comply with the ETD process in the course of his detention in 2016, and, refusing to attend interviews on 5 and 21 July 2017 and refusing to agree to return voluntarily on 4 August 2017. Shortly before the hearing, the defendant served a statement from Ms Drew, indicating in greater detail the measures being undertaken to obtain an ETD, and also referring to other cases where ultimately an ETD was obtained. It is accepted that to date those efforts have not been successful. The defendant also unsuccessfully took steps to obtain original copies of the claimant's Portuguese identity documents from his flat on his eviction.

Mr Irwin submits that the claimant has at all times been considered under the relevant provisions of the adults at risk policy. In light of his health problems the claimant has been treated as being at a level 2 risk of harm. However, he was assessed on 2 June 2017 as being fit to be detained. There is no evidence that detention is having any detrimental effect upon his health. Accordingly he says that his continued detention is not in breach of the defendant's adults at risk policy. He refers me the healthcare department at IRC Colnbrook records, which confirmed on 15 March 2018 that the claimant's health was being adequately managed in detention.

The defendant relies upon her decision to detain the claimant, which is recorded in the minute dated 17 May 2017 The sole barrier to removal identified at that stage was the lack of an ETD. It was noted that the claimant represented a risk of absconding in light of the fact that he was aware of the defendant's intention to deport him.

In my view the detention of the claimant ceased to be lawful after the meeting between the FCO and the Portuguese authorities in Lisbon in April 2018, when they reiterated their position. Once it became clear that the Portuguese authorities were not prepared to provide an ETD, and a reasonable period had elapsed to seek to persuade them to change their stance, and to investigate other options, including obtaining travel documentation from his flat, then there was a breach of the second Hardial Singh principle. Nothing was put before me at the hearing on 15 June 2018, which indicated that there was any realistic prospect of deporting the claimant within a reasonable period. The statement from Ms Drew confirms that view. The Portuguese authorities maintain their position that the claimant has lived in the UK for 25 years, paid his taxes and was well-integrated into life in the UK. Whether or not that is an accurate representation of the facts, that remains their position after meetings which have taken place both in London and Lisbon, notwithstanding that a further meeting is planned. As Mr Amunwa has pointed out to me, the claimant has been on bail before, after the deportation decision had been made, until 8 June 2017, and he complied with the conditions. For the avoidance of doubt I consider that the defendant was entitled to conclude that the claimant’s health conditions could be managed in detention.

In the light of my decision I ask that counsel should draw up an appropriate order for submission to me.