“5(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 ….”
“19(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if – … (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21 ….”
"24(1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3). … (3) Where the decision is under regulation 19(3)(b), the person is 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."
“4(3) A deportation order made under section 5 of the 1971 Act by virtue of regulation 26(3) of the 2000 Regulations [i.e. the equivalent provision to regulation 24(3) of the 2006 Regulations] shall, after29 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.”
“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 theImmigration 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 theImmigration 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, theImmigration Act 1971 …. Thirdly, she might have created a form of hybrid between the first 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. … 65. Where … a deportation decision is made [under reg. 19(3)(b)], the person the target of that decision is treated by virtue of reg.24(3) as if he were a person to whoms.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 ofs.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.
"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."
"38(4) In sections 32 and 33 – … (c) "deportation order" means an order under section 5, and by virtue of section 3(5), of theImmigration Act 1971 …." … (c) "deportation order" means an order under section 5, and by virtue of section 3(5), of theImmigration Act 1971 …."
“51. 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 judgment 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.”
“55. … 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 judgment 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. 56. 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.”
“59. 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 [33] 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 judgment 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. 60. 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.”
“61. 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 judgment 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. … 63. For all the above reasons in my judgment 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.”
“The powers of the Secretary of State to make deportation orders if appropriate are unaffected by the approach that we have adopted. Offenders to whom the 2007 Act applies will be deported in any event unless one of the exceptions under section 33 of that Act applies; and where the 2007 Act does not apply, the Secretary of State has the power to deport offenders under section 3(5)(a) of the 1971 Act if he deems this to be conducive to the public good.”
“We are aware that this outcome will not have any practical effect. For the reasons we have explained the Secretary of State must in any event make a deportation order in respect of Kluxen [a non-EEA national] unless he considers that one of the exceptions under section 33 of the 2007 Act applies in her case. We have been informed that Rostas [an EEA national] has already been deported, and that Adam [also an EEA national] has been informed by the United Kingdom Border Agency, for reasons of which we are unaware, that he will not be deported.”