Augustas Selevicius, R (on the application of) v Secretary of State for the Home Department

This is an application for judicial review brought by the Claimant, a Lithuanian national, who challenges certain decisions by the Secretary of State for the Home Department (“SSHD”) pertaining to his intended removal from the United Kingdom on public interest grounds.

He seeks to challenge the issue to him of a Deportation Liability Notice (“DLN”) and also the SSHD’s certification to the effect that, notwithstanding his claimed rights arising under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) (such as still apply), he should nonetheless be removed from the UK pending appeal. He also argues that failures in respect of the DLN taint his subsequent detention.

A number of variations on the grounds have been propounded from time to time but the permission was expressly limited as follows:

The Claimant is a national of Lithuania, it is unclear when he arrived in the United Kingdom, but likely between May and August 2019. He first came to the attention of the Home Office on his application for leave to remain under the European Settlement Scheme then in operation. He was granted Limited Leave To Remain (“LLTR”) on 3 October 2019.

Between 2019-2021 he was arrested in the UK for various potential offences relating to domestic abuse and although arrests were made charges were not preferred in respect of any of the occasions. Following arrest on 12 April 2021, a criminal record check in Lithuania was carried out and this revealed that the Claimant had a number of convictions in Lithuania which he had not disclosed when making his application for LTR. On 22 March 2012 (that is to say, when he was about 15 years of age) the Claimant was convicted of two counts of sexual assault by penetration and one count of sexual assault with no penetration of a girl of 10 years for which he was sentenced to 2 years 7 months imprisonment all of which was suspended. On 15 June 2015 the Claimant was convicted of robbery at Vilnius City District Court in Lithuania and sentenced to 5 years’ imprisonment.

Between early May 2021 and 17 June 2021 consideration was given to the deportation of the Claimant and to his detention pending deportation. It was concluded that the Claimant posed a high risk of absconding, of harm and of reoffending. The Secretary of State’s view in early May was that detention was appropriate to facilitate removal. The grounds included the threat that Mr Selevicius posed to the UK public and more immediately to his partner and children based on her view they were serious offences overseas, and the arrests for domestic violence suggested a pattern of sexual violence and violence towards women. There was no indication he sought to address the behaviour or sought help. Furthermore, he had obtained LTR on the basis of a failure to disclose his convictions. It was deemed appropriate to serve a DLN at the time of detention.

Material available to the Defendant from a local authority following the police referral in respect of domestic abuse revealed the children were subject to a Child in Need Plan because of the abuse. A referral dated 9 April 2021 reported that the Claimant had pushed his partner downstairs and beaten her. The children and members of the public had reported their concerns to the police even though the Claimant’s partner was unwilling to engage. It was reported to the SSHD the domestic abuse was escalating, and had been under-reported.

The DLN, completed on 2 June 2021, was served on 17 June 2021. A Deportation Order was served on 14 July 2021.

On 7 April 2022 the Claimant made an application long out of time to appeal against the decision to deport him made on 14 July 2021 (Footnote: ¹ ) .

Put shortly, Mr Bedford on behalf of the Claimant says the Court should treat all of the Claimant’s detention, between the dates of 17 June 2021 and 2 September 2021 (following a favourable bail decision on 1 September 2021) as unlawful and quash any Deportation Order removal directions because of fatal defects in the DLN which failed to contain material information.

The DLN indicated as follows:

There followed a section dealing with the current immigration status of the Claimant. It referred to the uncertainty of the arrival date, the application under the EU Settlement Scheme on 30 August 2019 and the grant of limited leave, stating that, following arrest on suspicion of assault causing actual bodily harm, a criminal record check was undertaken and revealed the convictions set out above. The DLN stated that the draftsman was satisfied that the Claimant was a person who had been granted entry clearance under the Appendix EU (Family Permit) provisions within the rules and was satisfied that the Claimant may be liable to deportation under public policy grounds under the EEA Regulations because of the convictions. It referred to protecting the public and combating the effects of persistent offending per Schedule 1 to the EEA Regulations.

The next part of the document said (relevantly) this:

The Claimant made representations on 28 June 2021. They appear to have been served on the Defendant with the purpose of supporting a bail application as well as by reference to the proposed deportation. They were representations on the merits expressing his desire to stay in the UK with his young family, an 18-month old, his child, and a nine and six year old, from an earlier relationship of his partner. These representations were within the ten day deadline for receiving representations on proposed deportation, for which time expired on 30 June 2021.

On 9 July 2021 a decision was made to refuse the representations, make the Deportation Order, and deport the Claimant from the UK and to certify under Regulation 33 of the EEA Regulations, meaning that his right of appeal would not be suspensive of removal action. As stated, it has now emerged that in fact, the Claimant never made any appeal until a few days before the hearing of this case. The Defendant argues the absence of timely appeal renders the certification otiose and this judicial review claim academic.

On 13 July 2021 a decision to refuse SSHD’s bail was made. The Claimant indicated he wished to depart the UK as soon as possible, he threatened not to eat or to take his medication (for diabetes) until he was removed to Lithuania. The next day, 14 July 2021, the Deportation Order was signed against him and served. He then advised that he did not wish to depart the UK any longer. On 26 July 2021 the Claimant made an application for bail before the Immigration Judge which he then withdrew on 29 July 2021. On 3 August 2021 the Claimant’s removal from the UK was set for 18 August 2021.

An email in the bundle dated 9 August 2021 from Bail for Immigration Detainees (BiD), transferred the case to the current solicitors. They said they had no documentation concerning the immigration case but:

A PAP letter was sent to the SSHD. On receipt of a PAP response from the Defendant maintaining the decisions, a judicial review application was issued on 18 August 2021 seeking interim relief to stay the removal. The removal was in any event deferred because the Claimant refused to take the mandatory Covid-19 test. A further bail application was made on 25 August 2021 with a hearing on 31 August 2021, bail was granted 1 September 2021 and on 2 September 2021 the Claimant was released.

The issues sought to be argued in this case were

For reasons I shall come to, I have decided the Secretary of State is correct in the first of the preliminary submissions recorded at (iv) above.

There was an application for permission at the hearing to argue the challenge to detention which I refused in the course of the hearing, but I record here also the reasons why the challenge to the DLN must in any event fail.

The new point the Claimant applies to raise is an argument that a decision to detain attracts the same protections under Article 30 as a decision to certify under Article 33 or a decision to deport. That is to say the requirements of EU law reflected in the EEA Regulations are to be written in in order to comply with the law.

I refused permission to move for judicial review on this extra ground for the following reasons:

The first of these reasons is founded on the history of this case. In my judgement there has been every opportunity for the Claimant to have raised the point before, had he thought this was a good point to make. He did not do so, for whatever reason, and it is wholly inappropriate to continue to throw into the mix of judicial review, which is a contained and controlled process, any new idea that occurs to counsel or advisors along the way. As was said for the Defendant by Mr Roe KC, this is an ex facie point: always available on the face of the document which the Claimant asserts is the detention decision, and the point was there to be taken, if thought to be good. Although it was said that somehow the new point derived from late disclosure by the Home Secretary that is not the case. There is nothing in the materials from the GCID that adds to or indeed detracts from the submission which would be required. Accordingly, it is now far too late.

As to the second reason, the Secretary of State indicates that it will be necessary to have an adjournment were permission given to argue a point which was raised only by Reply which concern events first challenged in August 2021.

It was in my judgement wrong for this Court to seek to spell out from a reply document unaccompanied by a formal application to amend, an application for further permission for a further point which could have been raised long ago against the background of expressly restricted permission. The Secretary of State’s view that an adjournment would be necessary was in my judgement well founded.

Under EU law, the right of free movement is not unconditional. Directive 2004/38 sets out the limitations and conditions on that right. The background to the operation of the EEA Regulations was not in issue before me, indeed it has been set out in a number of cases, notably R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16, R (Lauzikas) v Secretary of State for the Home Department (No. 2) (CA) [2019] EWCA Civ 1168 [2019] 1 WLR 6625 and the decision in R (Hafeez) v Secretary of State for the Home Department [2020] EWHC 437 (Admin).

Broadly, the scheme established by the Directive, implemented by the 2016 Regulations, gave an initial right of residence for three months; an EEA national had an extended right of residence if he fulfilled the conditions set out in Article 7(1) of the Directive; and after a continuous period of five years’ legal residence, an EEA national acquired a right of permanent residence (Article 16(1)). Articles 27 and 28 of the Directive permitted a Member State to expel EEA nationals and their family members on grounds of public policy, public security or public health, subject to certain restrictions. Increasing levels of protection applied depending on the status of the EEA national in the host Member State. A person with a right of permanent residence might only be expelled on serious grounds of public policy or public security. A person who had resided in the host Member State for the previous ten years could only be removed on imperative grounds of public security.

There were thus fundamental differences between deportation in the case of an EEA national and his or her family members (“an EEA case”) and deportation in a case where EU law did not apply. Significantly, in an EEA case, deportation had to be based exclusively on the personal conduct of the individual concerned: which had to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (Article 27(2)).

I take with gratitude the gist of the overview of the post-Brexit amended legislative scheme provided in the skeleton argument of the Defendant.

The Directive required EEA Member States to legislate so as to give effect to the rights of EEA nationals to reside in the EEA. The last such legislation in this jurisdiction was to be found in the EEA Regulations.

The EEA Regulations have been revoked because of the UK’s withdrawal from the EU and EEA. However, by Regulation 2(1) of the Citizens’ Rights (Restrictions of Entry and Residence) (EU Exit) Regulations 2020 (made under the European Union (Withdrawal Agreement) Act 2020), certain provisions of the EEA Regulations continue to have effect, with modifications, “for the purpose of removing a person who is protected by the citizens’ rights provisions”.

Regulation 2(2) explains that such persons include a person who “[…] has leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules”. This is a reference to the EU Settlement Scheme under which EU and EEA nationals were generally entitled to apply to remain in the UK notwithstanding the UK’s withdrawal from the EU and the EEA.

Regulation 2 of the EEA Regulations, as modified, provides that:

Schedule 1 sets out, as modified, several considerations, which include the following:

Regulation 23(6)(b) of the EEA Regulations thus provides for an express power of removal of an EEA national in circumstances where the SSHD has decided that the person’s removal is justified on public policy, public security or public health grounds; Regulation 27 of the EEA Regulations sets out the principles by which such a decision is to be made.

An appeal right is given by Regulation 36 of the EEA Regulations. There is no express provision within the Regulation for an appeal to be suspensive of the removal of an appellant. However, Regulation 33 provides relevantly as follows:

Accordingly, certification must take place if removal is desired to be made during the period of an appeal.

As seen by Regulation 2 above, a decision that a person’s removal is justified “concerns a person’s removal from the United Kingdom”, and is thus an “EEA decision” and Regulation 36 provides that the subject of an EEA decision may appeal to the First-tier Tribunal (“the Tribunal”).

In the present case certification was effected at the date when time started to run in respect of an appeal against the deportation decision but no appeal was made in time. Nonetheless, Mr Bedford on behalf of the Claimant asserts he may maintain a challenge to the certification decision saying the EEA Regulations allow him to make a challenge to certification as long as a notice to appeal has been lodged, even if out of time.

These provisions transpose Article 27 of the Directive, which laid down in its paragraph (1) the entitlement of Member States to:

Paragraph (2) provides (among other things) that:

Article 30 of the Directive provides that:

Regulation 32(1) provides relevantly that:

Regulation 33 is as set out above.

It is uncontentious following (among other cases) R v Bouchereau [1978] QB 732 ECJ, that rights provided for in the Directive are directly applicable, and create rights against the state in domestic law. Section 4 of the European Union (Withdrawal) Act 2018 preserves these rights, formerly given effect in domestic law by Section 2(1) of the European Communities Act 1972.

The first argument is put by Mr Bedford to the effect that the DLN is a “measure” in the sense understood in Article 27 of the Directive, and requires the procedural safeguards which attach by virtue of Regulation 30, because the DLN supplies the “reasons to potentially justify his detention and removal”. He also argued that there was an “underlying” decision, which was only discovered by trawling through the case notes disclosed by the SSHD after the proceedings had begun.

Since, as is common ground, the DLN did not inform the Claimant precisely and in full of the public policy grounds relied upon to justify his arrest, detention or removal, the notice did not fulfil the procedural requirements required of a “measure” he says. He also argues, as above, that the DLN gave a misleading reason for the deportation: it omitted to mention what the notes reveal, namely that the core reason for removal was the threat perceived by the Secretary of State that the Claimant posed to his partner and the children. He took the Court through many pages of records of internal discussions and briefings which he said provide the “real” reasons for the deportation and which the EEA Regulations required to be set out in the DLN.

He submitted the Article 30 provisions and safeguards must apply because of the nature of the DLN when considered in light of the case law on what constitutes a “measure”, which is equivalent to a “decision” for the purposes of the EEA Regulations. The essence of Mr Bedford’s submission is that the DLN was a necessary step leading to the making of a decision that made it possible for the person to be detained and deported which means it is at least a “decision” to which the Article 30(3) safeguards apply even if, as I understand his argument, it might not be regarded as a “measure” as such under Article 27. Although he primarily submits there is no material distinction between a “measure” and a “decision”.

Mr Bedford relies upon the case of Bouchereau and points to paragraphs [27] and [28] where he says the test for what is a “measure” for the purposes of the Directive is set out.

The case of Bouchereau considered a recommendation for deportation made by a Magistrates’ Court in the UK. The first question raised by the Court asked whether a recommendation for deportation, which was persuasive but not binding on the Secretary of State, constituted “a measure within the meaning of Article 3(1) and (2) of [the Directive]”. The UK government had submitted it was not a measure because it was a recommendation only. At paragraphs [21] to [24] the Court said:

Mr Bedford also drew the Court’s attention to two recent cases. He referred to R (Costea) v Secretary of State for the Home Department [2021] EWC 1685 (Admin) [2021] 1 WLR 5223 a decision of Mr Justice Griffiths. In that case Mr Bedford had also argued that the DLN was a “measure” within the Directive, and that the protections afforded by Regulation 30 applied to it. The submissions of the SSHD were to the effect that the DLN was not a requirement of EU law, nor indeed of the EEA Regulations or otherwise under primary or secondary legislation in England and Wales. It was issued as a matter of policy. Government policy was to issue a notice of liability to deportation indicating the right to raise grounds of objection, it did not have the character of a “measure”.

Griffiths J held that the Secretary of State was in fact obliged to provide the Claimant with a DLN, at law, since she had a published policy indicating that she would do so. Furthermore, the Secretary of State in the case of Costea had relied upon the fact there had been no response to the DLN when she came to make her Deportation Order. He referred to wording in that case that suggested that a failure to respond to a DLN would result in the making of a Deportation Order. Griffiths J also relied on the decision of R (Hafeez) v Secretary of State for the Home Department [2020] 1 WLR 1877 in which I held that certification under Regulation 33 was in that case, a measure to which Article 27 applied. He concluded that the DLN had “every appearance of being a “measure” within the meaning of Article 27” (paragraph [104]). However, he went on to hold that Article 30 did not refer to “measures” in the broad sense, but its protections only applied to “decisions” which were the result of the deportation process, not to a DLN which, on its face related to a future decision that might be taken. (See paragraph [127].)

Griffiths J distinguished the case of R (Mendes) v Secretary of State for the Home Department (AIRE Centre intervening) [2021] EWHC 115 (Admin). In that case Mr Justice Freedman concluded that a DLN is never “a measure” within the meaning of Article 27. He said the following at paragraph [110]:

Freedman J declined to find that the DLN was part and parcel of any decision to impose immigration detention. For that reason Freedman J rejected arguments similar to those advanced before this Court that the DLN ought to have provided with far greater particularity the reasoning for the “decision” which Mr Bedford argues is encapsulated in the DLN.

Griffiths J rejected the conclusions of Freedman J because he understood them as relating to the “facts” of Bouchereau and Hafeez and did not feel inhibited to characterise the DLN in his own particular case of Costea in a different manner. He went on to hold that although it could in the case before him be described as a “measure”, the DLN did not constitute a “decision” for the purposes of Article 30. The DLN he held was part of a process designed to inform the Claimant that “a decision might subsequently be made” (see paragraph [124]). Since Article 30 required notification of any “decision” and the terms of the DLN were clear that the Secretary of State was considering making a decision – this was not a decision in itself. Accordingly, a DLN could be a “measure” but was not a “decision”.

I regret I disagree with the reasoning of Griffiths J in so far as he held a DLN is or could be a “measure” for the purposes of the Directive. In my judgement Freedman J was correct in stating that the status of a DLN was not that of a “measure”, nor could it be. Put shortly, a DLN is not “any action” which affects a person’s right of free movement (Bouchereau [21]).

The submission on behalf of the Secretary of State from Mr Roe KC was to this effect. The choice of the SSHD to serve a DLN was not properly characterised as a measure under Article 27 or indeed a decision (if there be a difference) under Article 30. It was conceptually different to serve a DLN on the one hand and to make a decision that a deportation should take place on the other. Similarly, the DLN did not affect the lawfulness or otherwise of the detention.

I accept the submission of the Secretary of State that the DLN is not a document in the same category as either a decision to certify (see the case of Hafeez) or the decision of a court in England and Wales to make a recommendation as to deportation (see Bouchereau). In my view the essential characteristic of a “measure” and indeed a “decision” which attract the protections of the Directive is: legal consequence engaging the right of free movement. In Hafeez, the action in question was the physical removal of a person from the jurisdiction before the full opportunity for appeal had been exhausted. Such necessarily engaged the right of free movement. Similarly in Bouchereau, the Magistrates’ Court recommendation was an action with the legal consequences of a Court recommendation to the SSHD, and described by the Court there as a “necessary prerequisite” to a deportation decision.

The description afforded to the process (as it was then) in England and Wales by the Advocate General in Bouchereau is helpful in understanding the distinction. The Immigration Act 1971 provided by Section 3(6):

To found a deportation there required to be: (a) conviction for an offence of the requisite character; and (b) the recommendation for deportation from the relevant court. These were necessary although not sufficient for deportation: the SSHD had the final decision under Section 5 of the 1971 Act, the power arising “where a person is under Section 3(5) or (6) liable to deportation”.

The Advocate General also described what took place in the following terms, by reference to the various submissions that had been made [page 738 c-f)]:

Although the UK government submitted that a judicial decision as opposed to an action of the legislature could never constitute a measure, and also explained that the Court could not bind the Secretary of State who retained discretion, the Court nonetheless described the Magistrates’ Court Order as a “necessary prerequisite” which, in legal terms, it was, to that particular route to a Deportation Order by the Secretary of State.

In the present case it cannot be said that the DLN has legal consequences in the manner described, nor does it render a person liable to be detained. I hesitate to describe the difference as that between ‘procedural’ and ‘substantive’ legal acts in characterising what is or is not a “measure” for the purposes of the right to free movement (although that was the language reflected by the Attorney General). However, in my judgement the tenor of Article 27 is suggestive of legal actions that impinge upon the central right at issue: namely the right to move freely in the territory not merely procedural notification matters. Notifying a person of the process of decision-making and of representations in the DLN is quite different from, by that notice, impinging upon their liberty to move freely. Rights arise, or indeed are curtailed by other means.

Before a detention decision is made the grounds giving rise to the power to do so are “reasonable grounds for suspecting” that the Claimant is “someone who may be removed” as set out under Regulation 32, thus:

I also accept the submissions of Mr Roe KC that a DLN is neither a “measure” nor a “decision”. As I have explained above, it is not equivalent to a deportation decision but nor is it a legally necessary step in the process and it is not itself the justification for detention. It does not affect detention in a meaningful sense.

Mr Roe KC reminds the Court that the process of considering, making and giving effect to a Deportation Order is as follows: there is at some point a determination that the Claimant should be served with a DLN. That is not a decision to deport him nor is it a decision of any other kind that is capable of curtailing the right to free movement. There may or may not be a decision at the same time that he should be detained, but, as set out, that is made on the basis there are reasonable grounds to suspect that he may be deported (here, on public policy grounds). The next stage is that a subsequent decision is or may be made to deport. There is, independently, a set of detention reviews from time to time, bail applications, or not and grants of bail, or not. In the present case there were reviews and a grant of bail at the very end of August. The power to detain arises under Regulation 32(1) of the EEA Regulations, or Section 36 of the UK Border Act 2007.

Mr Roe KC submits and I accept that the wording of the DLN is quite inconsistent with the suggestion that it is in itself a “measure”. He submits that the core question must be does the provision complained of affect the right of free movement. There is a material difference between a certification, which may directly affect the right of free movement and a DLN which is merely notification that a decision of a particular type (deportation) might be made.

This is the basis upon which the case of Mendes (above) was decided, as stated, it is in my view correct.

The DLN includes these words:

Article 30 is a procedural provision governing the information required for “any decision taken under 27(1)”. There is in my view no distinction between “measure” in the sense it is used in Article 27 and “decision taken under 27(1)”. The latter phrase connotes a determination directed at an individual that affects the right of free movement – such as a deportation decision or a certification decision – “measure” also connotes “any action” which, in my judgement necessarily comprehends a decision as referred to in Article 30.

Further, in so far as Mr Bedford sought to suggest that there was an underlying “decision” that was not revealed save by examination of the GCID notes, I reject that submission. These materials showed discussions, proper consideration of the various aspects of the Claimant’s case and the resolve that the Secretary of State would consider deportation. Necessarily, the notes reveal materials that came to the attention of the SSHD that go beyond the convictions which form the foundation of the public policy deportation consideration. It is quite impossible to spell out of the to and fro of internal memoranda, some “silent” decision different from that which was notified to Mr Selevicius by the Deportation Order of 14 July 2021.

It follows from the analysis of the DLN, above, that there was no obligation in law to set out all of the details which Mr Bedford asserts were missing from it. The framework of a deportation decision affords a right of appeal to the potential deportee. It is a HRA and EU law compliant scheme in the course of which he may raise any points concerning his background, present situation or other materials to enable a proportionate and HRA compliant decision to be made. It is irrelevant that the DLN has indicated the likely scope of the Deportation Order. The decision to make a Deportation Order was served under cover of the letter dated 14 July 2021, and ran to 25 pages (164 paragraphs) in length. It included the legal framework, asserted factual basis, remedies and opportunities for challenge in respect of that decision. The Claimant was informed of the basis of that decision and in my judgement it is not arguable that the DLN is required to incorporate similar materials for the reasons given above.

Mr Bedford submitted that it was not lawful for the SSHD to refer merely to criminal offences and convictions. She was required to enquire from Lithuania; for example it was necessary to see the Judge’s sentencing remarks and make an assessment of propensity and so forth on the basis of materials available to the local Judge. The SSHD submitted that there is no blanket obligation to acquire new information from the territory in which the convictions were imposed. Mr Roe KC said the SSHD is entitled to look at the offence and the sentence and form a view as to the implications and the seriousness. The Directive does not require further information on a blanket basis. The relevant words are as follows:

Clearly, on this wording, there is no universal requirement in each case to acquire more information. Indeed, it is only if “essential”, the State may request further information. In my judgement the SSHD is entitled to look at the offences in question and at the sentences which were passed in respect of them. In the present case these were serious offences with an obvious relationship to public protection, and do not, without more, require further investigation. They are on their face serious. As the SSHD points out, there is no detailed submission on the evidence as to why the appearance of seriousness or risk to public protection is not the appropriate characterisation. The Claimant was 14/15 at the time of the offence against a girl of 10, the 5 year sentence for a first offence of robbery demonstrates the issue was serious. No particular facts in mitigation have shed doubt on that.

Mr Bedford referred to the case of K v Stattssecretaris van Veliligheid en Justitie (ECJ) [2019] 1 WLR 1877 to support a proposition that the commission, for example of war crimes, could not amount to an absolute ban such that a State was absolved from making any enquiry into the risks of reoffending, the sufficiency of serious threat to the fundamentals of society, etc.

The ratio of the Court in K at paragraph [51] was to the effect that the fact that a person had been excluded in the past from refugee status for a very serious reason, did not automatically permit the finding that their mere presence in the territory was a genuine present and sufficiently serious threat. A case by case assessment by the competent national authorities was required and it is the personal conduct of the individual concerned that must constitute a genuine and sufficiently serious threat.

The problem with Mr Bedford’s submissions is that a specific case assessment took place in Mr Selevicius’ case. The SSHD draws attention to the case progression report for the Claimant as evidence of the material before the SSHD when considering the making and the maintenance of a Deportation Order. It records how Mr Selevicius came to attention on his arrest on suspicion of common assault on 16 May 2019. There was an application for LLTR as set out above, and the history was considered. Following his arrest for assault on 12 April 2021 his criminal record was requested from Lithuania which showed a conviction on 22 March 2012 of two counts of sexual assault and one of robbery. The PNC showed he had been arrested on five occasions between 2019 and 2021 for offences relating to domestic abuse, as confirmed by Children’s Services. The timing suggested that he had not served the full 5 years’ imprisonment for robbery and came to the UK shortly after his release. The reoffending risk was regarded by the reviewing officer at that time as high. These are all case-specific, and there is nothing exceptional that suggests further information should have been obtained. The offences and the sentence, in particular of 5 years, speak for themselves as to seriousness. The decision was in my judgement plainly proportionate under EU law.

When the Secretary of State makes a decision concerning deportation assistance may be gained from Schedule 1 to the EEA Regulations. That provides as follows:

Elsewhere in the schedule further matters of relevance to the Secretary of State’s proportionality judgment are set out. The SSHD followed the approach set out in the Schedule. This was not in any way an “automatic” decision such as fell for consideration in K and that case does not assist.

Mr Roe KC submitted, if and to the extent that I was minded to consider that this was a challenge to an extent to the deportation decision, that could be defended on grounds of proportionality in any event. I agree.

An EU proportionality assessment was plainly carried out, the Secretary of State took into account factors which I have listed above, among others, there can be no challenge to the lawfulness of her approach in this case including, to the extent it is separately challenged, the decision to deport. Mr Bedford’s complaints about the substance of the decision and the manner in which it was reached ranged far and wide but his pleaded case and the burden of his submission was that a proportionality assessment had not been carried out, or had been inadequately carried out. I cannot accept that submission.

Mr Bedford made a number of submissions that sought to impugn the detention of the Claimant. Given the scope of the permission these resolve themselves into his primary contention, as reflected in his grounds, that because the detention was part and parcel of the “deportation proceedings”, it was infected by the failures of the DLN. I have rejected the proposition that there is any fault or failure in respect of the DLN as argued. Furthermore, however, in my judgement the DLN is not connected to the detention such that a failure of the one causes a failure of the other.

This case is different from the case of Lauzikas. The DLN is not a decision to detain, it is not in my judgement a decision to do anything of legal consequence in the sense that the regulations and the jurisprudence reflect, as I have said.

Accordingly, whether the challenge is framed in terms of a judicial review of the decision to make a Deportation Order, or whether it is framed in terms of an indirect challenge to the detention it must, fail on its own terms. The nature of the disturbing childhood offences, the seriousness of a 5 year sentence for robbery provide ample justification for the later decisions – that is to say not the DLN but the detention and the Deportation Order.

In this case, as I indicated at the start of the judgement, the challenge to the certification issue has fallen away. It is further the case that Regulation 33 applies only where two conditions are fulfilled:

The Regulation provides an inhibition upon the Secretary of State giving directions for removal in certain circumstances. Absent those circumstances, Regulation 33 has no application. The logic of this is that there was, in truth, nothing stopping the Secretary of State removing the Claimant. The true position is and always has been that there is no valid appeal before the Tribunal so neither 33(3)(a) nor (b) is true.

I am clear that it is not possible to argue other than the meaning of the phrase “P has so appealed” means that a person in the position of the Claimant has appealed, or may yet appeal within time. The Claimant is therefore not a person to whom Regulation 33(3) applies: the Regulation has no application. There is no proper way in which that provision can be read so as to include an ex post facto application for permission to appeal out of time. In terms, 33(1)(a) directs the reader to ignore any possibility of permission to appeal out of time. This was never, accordingly, a circumstance where the Secretary of State was entitled only to give directions for removal if she certified under the Regulation that removal would not be unlawful etc.

I am clear that the plain meaning of the words of Regulation 33 is that the appeal does not “reactivate” Regulation 33 as has been argued by Mr Bedford. For that Regulation to apply and oblige the Secretary of State to issue a certificate, the Claimant must have appealed within time, or remain entitled to appeal within time, and that appeal has not been determined. Even though, as Mr Bedford suggests, this may have the effect where the Claimant is only a few days out of time to appeal, the SSHD may set removal directions and is not required to issue a certificate.

I am strengthened in my view that this is the correct interpretation of the regulation by the reference made by Mr Roe KC to the case of R (Akinola) v Upper Tribunal [2021] EWCA Civ 1308 [2022] 1 WLR 1585. In Akinola, albeit under a different regime, where leave to remain expired without an application to vary it having been made in time, that leave could be revived. However, it could be revived only with future rather that retroactive effect. The date from which the leave would begin to run again, was the date from which the appeal was instituted: the late grant of leave did not have retroactive effect. The conclusion of Sir Stephen Richards in Akinola was to the effect that where an extension of time is granted for an appeal out of time the date when the appeal was instituted and became a pending appeal (within Section 3C(2)(c) of the Immigration Act 1971) was the date when the notice of appeal was filed, not the date when the extension of time was granted. This allowed a very small element of retroactivity in those cases where the extension grant post-dated the filing of the notice of appeal.

Mr Bedford submitted that if the Tribunal were to admit the appeal, even though the application were made long out of time, it would be a “pending appeal” under the regulations. Mr Bedford said it is not relevant for the operation of Regulation 33(1)(a) to know whether or not the notice of appeal is lodged – the operation is by reference to the final determination of an appeal. He said that the interpretation provision in Regulation 35 supports his analysis. By that Regulation an appeal is treated as pending during the period when a notice of appeal is given ending when it is finally determined, withdrawn or abandoned. An appeal is not to be treated as finally determined under 35(3):

I reject his analysis. The operation of the Regulation is premised on an in-time appeal. His submission is that the word “so” does not refer to making an appeal in time, but just making an appeal. In his analysis the phrase “ignoring the possibility of any out of time appeal” means that there has to be a certificate whether the person does appeal or not. That, in my judgement, does not reflect the natural meaning of the words nor is it likely that an open ended process of the nature he propounds could have been the draughtsman’s intention.

Mr Bedford had a number of subsidiary procedural submissions directed towards the main submission that the DLN was surrounded by procedural unfairness. This impacted the further decisions taken later he argued. I have concluded that the DLN is not as he characterises it.

The Claimant had a full right of appeal against the Deportation Order and, in certain circumstances, he could remain in this country to exercise it. Even if he could not, under Regulation 41 he might come back to the UK in order to promote such an appeal.

I reject the contention that the DLN was a “measure” under the Directive, or indeed a “decision”, attracting the protections of Article 30.

The certification decision falls away.

I reject the challenge to either the DLN as a “measure” (or the substantive deportation if such is made) on the basis that there was some silent or secret decision involving undisclosed materials that is somehow revealed by an examination of the contemporaneous file notes. The Secretary of State placed her decision on the basis of the previous convictions. As I have stated they are not susceptible of a proportionality challenge. Given that information came to her knowledge concerning the activities of the Claimant whilst in the United Kingdom, and given that those activities raise rather than diminish the concerns of a threat to the public policy grounds, it is entirely acceptable, indeed necessary that the Secretary of State adverted to the new material in the course of her considerations through her officers as reflected in the notes.

There is nothing in the challenge that the SSHD was required to revert to the Lithuanian authorities for sentencing or other materials. Neither the Regulations nor the facts of this case compelled it.

There is no separate challenge (whether pleaded or in fact not pleaded) that could succeed on the basis of the decision-making in this case.

This application for judicial review must be dismissed.