X, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1997 (Admin)

[2016] EWHC 1997 (Admin)

Case No CO/2190/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/07/2016

Before

MR JUSTICE WALKER

Between

The Queen on the application of XClaimant

Secretary of State for the Home DepartmentDefendant

Ms Leonie Hirst (instructed by Deighton Pierce Glynn Solicitors) for Claimant

Mr David Blundell and Ms Julia Smyth (instructed by the Government Legal Department) for Defendant

Hearing Hearing dates: 18 November 2015

Written submissions were lodged during the period 20 November 2015 to 4 July 2016

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version may be treated as authentic.

By order dated 29 July 2016 no report of this case shall directly or indirectly identify the claimant, nor shall it directly or indirectly identify those who wrote the letters which accompanied the representations made by the claimant’s then solicitors on 20 April 2015. The present judgment has been prepared so that it may be published without contravention of that order.

Paul Walker, 29 July 2016.

A1. X and his two sets of proceedings

[1]The claimant (“X”) is a Romanian national who was born in that country on 15 June 1968. In 2004 he was detained there in order to serve a twelve year sentence of imprisonment for a murder committed on the night of 26 to 27 December 1989. However in 2008 he was released early on conditions. The Romanian court found, at the time of granting conditional release, that there was sound evidence of rehabilitation. In 2009 X left Romania and came to the UK. The defendant (“the Home Secretary”) granted him residence as a student here.

[2]The present claim is concerned with challenges to certain of the actions taken in relation to X by the Home Secretary in 2015, after X had been in this country for some years. It also challenges the powers under which the Home Secretary took the actions that are challenged in these proceedings, and the Home Secretary’s policies as to how those powers should be exercised.

[3]The action taken by the Home Secretary against X has resulted in two sets of proceedings. I describe them in sections A1.2 and A 1.3 below.

A1.2 First proceedings: appeal to the FTT against deportation

[4]The first set of proceedings took the form of an appeal to the First-tier Tribunal (“FTT”) against a decision by the Home Secretary to deport X. The appeal was lodged on 6 May 2015, at a time when X was held in detention at an Immigration Removal Centre (“IRC”). X was granted bail by the FTT on 21 July 2015. He was accordingly released from detention on 23 July 2015.

[5]X’s appeal was allowed by the FTT in a determination promulgated in January this year. An application to the FTT by the Home Secretary for permission to appeal was refused by the FTT and, on renewal, by the Upper Tribunal.

A1.3 Second proceedings: the present judicial review claim

[6]The second set of proceedings took the form of the present application for judicial review. By way of ancillary relief, an urgent interim order was sought by X so as to prevent his removal from the United Kingdom prior to the hearing of his appeal. In response to that application a stay on removal was granted by Ouseley J on 14 May 2015. A judicial review claim form issued that day, under the heading “Details of the decision to be judicially reviewed”, identified three matters of which complaint was made. A2. The judicial review claim in more detail A2.1 X’s matters of complaint and grounds for judicial review

A2. The judicial review claim in more detail

[7]I set out below X’s three matters of complaint, along with a brief summary of the general nature of the complaint as described in a document settled by Ms Leonie Hirst of counsel and entitled “Grounds in support of the claim” (“X’s grounds”):(1) X’s “ongoing detention since 23 March 2015 (verbal decision)”. It was said in X’s grounds that he was detained on 23 March 2015, apparently under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”). X’s grounds complained that his detention infringed the principles of both European Union law and domestic law.

(2) A decision by the Home Secretary under regulation 24AA of the EEA Regulations that X should be removed from the United Kingdom despite his entitlement to appeal against the decision to deport him, and to certify that removal under regulation 24AA(2). The decision was identified in X’s grounds as having been taken on 23 April 2015. What was certified was that X’s removal to Romania, despite the deportation appeal process not having begun, would not be unlawful under section 6 of the Human Rights Act 1998. It was said on behalf of X that removal would breach section 6 because there was a real risk of serious irreversible harm if he were removed to Romania. It was also said that certification was contrary both to European Union law and to principles of domestic law.

(3) The third “decision” identified comprised regulation 24AA itself and associated guidance. The assertion made in X’s grounds was that regulation 24AA, along with the Home Secretary’s “certification policy and practice”, were unlawful as contrary to European Union law.

[8]The provisions of EU law relied upon by X included Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. I shall refer to it as the “Citizens Directive”.

[9]The final section of X’s grounds dealt with the remedies that he sought. His application for interim relief included a claim for an order that he be released from detention. Ouseley J declined to make an order in that regard, observing that this would not be appropriate in the absence of notice to the Home Secretary. In addition to the claim to release, X’s grounds identified further remedies that were sought, including:(1) an order quashing the certification decision of 23 April 2015;

(2) a declaration that X had been unlawfully detained since 23 March 2015; and

(3) damages, including aggravated damages.

A2.2 Acknowledgement of service & permission to proceed

[10]An acknowledgement of service was filed on 4 June 2015. It was accompanied by summary grounds of defence. The matter came before Ms Philippa Whipple QC, sitting as a deputy judge of the High Court, for consideration on the papers. By an order dated 18 June 2015 she granted permission to proceed and directed expedition. As regards interim relief, her order, in effect, continued the order of Ouseley J preventing removal from the United Kingdom. Having considered the summary grounds of defence, she did not order X’s release from detention.

[11]Ms Whipple QC’s order included observations which I have numbered in square brackets as set out below: [1] There is an arguable issue as to whether the Claimant faces a real risk of serious irreversible harm if returned to Romania, noting that the Defendant’s conclusions that removal would be proportionate and Convention compliant, relied on in the AoS in answer to this ground of challenge, are themselves subject to an outstanding appeal to the FTT. [2] I grant permission on that and the other two grounds (unlawful detention since 23 March 2015, and illegality of Regulation 24AA). [3] I grant interim relief to prevent the Claimant’s removal pending the substantive hearing, but I do not order the Claimant’s release from detention – the existence of the FTT appeal is relevant to detention, and that is a matter separate from this JR.

A2.3 Subsequent steps in the judicial review claim

[12]Following Ms Whipple’s order, and X’s release on bail, detailed grounds for resisting the claim were filed. They were settled by Mr David Blundell and Ms Julia Smyth of counsel.

[13]On 6 November 2015 X filed a document entitled “Claimant’s reply and amended grounds”. Where appropriate below I shall refer to it as “X’s reply” or as “X’s proposed amendment”. Paragraph 1 of this document said that it responded to the Home Secretary’s detailed grounds in light of additional disclosure. It added a proposal to amend X’s grounds so as to challenge a restriction imposed by the Home Secretary on 23 July 2015 preventing X from taking up paid or unpaid employment. I need say no more about X’s proposed amendment, however, as the restriction has now been lifted and X no longer seeks to complain about it in these proceedings.

[14]The hearing of the judicial review took place before me on 18 November 2015. Ms Hirst appeared on behalf of X; Mr Blundell and Ms Smyth appeared on behalf of the Home Secretary. There was insufficient time on 18 November 2015 to permit oral submissions in reply. With the agreement of the parties I gave directions for written submissions in reply, preceded by further written observations by the Home Secretary. In addition the parties at my request supplied joint written submissions on further factual and legal developments since the hearing. I thank those involved on both sides for the assistance which has been provided to me.

[15]The written submissions drew attention to a number of recent decisions. It is convenient to mention here that in oral submissions both sides placed reliance on what was said by the Court of Appeal in R (Nouazli) v Secretary of State for the Home Department

[2013] EWCA Civ 1608

[2014] 1 WLR 3313

. The Court of Appeal’s decision has now been upheld in the Supreme Court:

[2016] UKSC 16

[2016] 1 WLR 1565

A2.4 Overview of this judgment, & outcome of the claim

[16]Unless specifically qualified, references in this judgment to an article or articles, and to a regulation or regulations, are references to those in the Citizens Directive and the EEA Regulations. In order to distinguish articles of the European Convention on Human Rights, I have qualified them with the abbreviation “ECHR”.

[17]As to the structure of this judgment, and the outcome of the claim:(1) Section B below deals with the Citizens Directive and the EEA Regulations.

(2) Section C gives an account of the history of events.

(3) I explain in section D below that X is right to say that the guidance on regulation 24AA issued by the Home Secretary involved an unlawful policy. The reason is that it substituted a threshold test of “real risk of serious irreversible harm” for the true threshold test of whether removal would be unlawful under section 6 of the Human Rights Act 1988. I add that it is not appropriate in the present claim to decide certain aspects of X’s other challenges to the EEA Regulations and to the Home Secretary’s policy. They are aspects which do not need to be decided in the present claim, and are best left to be decided in a claim where they will affect the practical outcome. I also explain in section D that the remaining aspects of those challenges are not established.

(4) I conclude in section E below that the circumstances of X’s case were such that the Home Secretary’s decision in relation to X under regulation 24AA was unlawful.

(5) I conclude in section F below that X was unlawfully detained from 23 March 2015 until he was released on 23 July 2015, and that the Home Office was responsible for that unlawful detention.

(6) My conclusions in sections E and F result from the application of common law principles relied on by X. It is not necessary, and in the circumstances of the present case undesirable, to examine assertions by X that the application of EU law would result in the same conclusions.

(7) In section G I summarise my conclusions. B. The Citizens Directive & the EEA Regulations

B1. The Citizens Directive

[18]Article 21 of the Treaty on the Functioning of the European Union (“TFEU”) provides for the right of Union citizens to move and reside within the territory of other member states. This right of freedom of movement was described in

case C-127/08

Metock v Minister of Justice, Equality and Law Reform [2009] All ER(EC) 40, at paragraph 69, as the: … right to leave any member state, in particular the member state whose nationality the citizen possesses, in order to become established … in any member state other than the member state whose nationality the Union citizen possesses …

[19]The preamble to the Citizens Directive records that the free movement of persons constitutes one of the fundamental freedoms of the internal market, that Union citizenship should be the fundamental status for the exercise of the right of free movement and residence, and that a single legislative act [namely the Citizens Directive] is needed for this purpose. In addition, recitals (23) and (25) in the preamble state: (23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residency host Member State, their age, state of health, family and economic situation and the links with their country of origin. … (25) Procedural safeguards should also be specified in detail in order to ensure a high level of protection of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State, as well as to uphold the principle that any action taken by the authorities must be properly justified.

[20]In broad terms, the scheme established by the Citizens Directive is as follows:(1) Chapter I deals with general provisions and comprises articles 1 to 3.

(2) Chapter II, comprising articles 4 and 5, deals with rights of exit and entry.

(3) Chapter III is headed, “Right of residence”. It begins with article 6, which provides for an initial right of residence for three months, in circumstances set out in that article.

(4) Union citizens will have a right of residence beyond that initial three month period if they fulfil conditions set out in article 7. One way in which they can fulfil those conditions is by being workers or self-employed persons in the host state.

(5) Articles 8 to 11 deal with administrative formalities and residence cards, while articles 12 to 15 deal with retention of the right of residence.

(6) Chapter IV is concerned with the right of permanent residence, a right which is not subject to the conditions provided for in chapter III. Section I of chapter IV, comprising articles 16 to 18, deals with eligibility. In that regard article 16 stipulates that Union citizens “who have resided legally for a continuous period of five years” in the host state shall have the right of permanent residence there.

(7) Section II of chapter IV, comprising articles 19 to 21, deals with administrative formalities.

(8) Chapter V, comprising articles 22 to 26, sets out provisions common to the right of residence and the right of permanent residence.

(9) Chapter VI deals with restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. I deal with the content of Chapter VI in more detail below. For present purposes I summarise the subject matter of the articles it contains. Article 27 sets out general principles in that regard. Article 28, headed “Protection against expulsion”, imposes limitations on the ability of member states to take an expulsion decision. Article 29 deals with public health. Article 30 makes requirements as to the manner and form of notification of decisions. Article 31 sets out procedural safeguards. Article 32 concerns the duration of exclusion orders. Article 33 concerns expulsion as a penalty or legal consequence.

(10) Chapter VII comprises what are described as “Final provisions”. Article 34 concerns publicity. Articles 35 and 36 concern abuse of rights, and sanctions. Article 37 stipulates that the provisions of the directive shall not affect laws, regulations or administrative provisions laid down by a member sate which would be more favourable to those covered by the directive. Articles 38 to 42 deal with repeals, implementation and similar matters.

[21]Romania became a Member State of the European Union on 1 January 2007. As a result, subject to transitional arrangements, the Citizens Directive has at all material times since 1 January 2007 limited the ability of the UK to impose restrictions on the freedom of movement and residence of Romanian nationals. I deal with the transitional arrangements in section C2 below. They were in force until 31 December 2013.

[22]I turn to deal in more detail with chapter VI of the Citizens Directive. As noted above, it comprises articles 27 to 33, and deals with restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. Such restrictions are required by the Citizens Directive to comply with limiting provisions. Those relevant for present purposes are in articles 27, 28 and 31.

[23]Subject to the provisions of Chapter VI, article 27 (entitled “General Principles”) permits Member States to restrict the freedom of movement and residence of Union citizens on grounds of public policy, public security or public health. It adds, as a first limiting provision, that these grounds shall not be invoked to serve economic ends.

[24]Article 27 includes other limiting provisions stating that 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. It adds: 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. …

[25]Article 28 is entitled “Protection against expulsion”. It provides, among other things, that 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. It adds that an expulsion decision may not be taken against a Union citizen who has the right of permanent residence on the host Member State’s territory, except on serious grounds of public policy or public security. In the case of those who have resided in the host Member State for the previous 10 years, such a decision may not be taken, except if it is based on imperative grounds of public security, as defined by Member States.

[26]Article 31 is entitled, “Procedural safeguards”. It sets out safeguards for persons against whom a decision is taken on grounds of public policy, public security or public health:(1) Article

31.1 states that such a person shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any such decision.

(2) Article

31.2 states: Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except: - where the expulsion decision is based on a previous judicial decision; or - where the persons concerned have had access to previous judicial review; or - where the expulsion decision is based on imperative grounds of public security under Article 28(3).

(3) Article

31.3 states: The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in article 28.

(4) Article

31.4 states: Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

[27]Both article 31.2 and article 31.4 are concerned with exclusion of an individual prior to the outcome of redress procedures. I shall refer to such exclusion as “pre-redress exclusion”. Article 31.2 contemplates that there may be an application for an interim order to suspend enforcement of an expulsion decision. It expressly refers to an application for appeal against or judicial review of an expulsion decision being “accompanied by an application for an interim order to suspend enforcement of that decision”. If that happens, then subject to the 3 specific exceptions mentioned, the making of the application for that interim order will bar actual removal until the decision on the interim order has been taken.

[28]Article 31.4 permits pre-redress exclusion, but subject to an express qualification concerning the right of the individual to appear in person. Apart from providing for that express qualification, article 31.4 in itself contains nothing expressly about the principles governing when pre-redress exclusion will or will not be compatible with EU law.

B2. The EEA Regulations up to 28 July 2014

[29]The Citizens Directive has effect not only throughout the EU but also throughout the European Economic Area (the “EEA”). The EEA Regulations came into force on 30 April 2006. They were made on the footing that, among other things, they would ensure that the UK complied with the Citizens Directive. During the period up to 28 July 2014 relevant provisions in the EEA Regulations remained, for the most part, substantially unchanged.

[30]As regards article 31.1 and 31.3 of the Citizens Directive, regulation 26 in Part 6 of the EEA Regulations conferred a right of appeal, subject to conditions, against “an EEA decision”. This term was defined in regulation 2 so as to include a decision concerning a person’s removal from the UK. In circumstances defined in regulation 28, that right of appeal lay to the Special Immigration Appeals Commission. In all other circumstances, under regulation 26(6) that right of appeal lay originally to the Asylum and Immigration Tribunal, and from 15 February 2010 onwards to the FTT or the Upper Tribunal.

[31]In the EEA Regulations as originally made:(1) Regulation 21 applied to a “relevant decision”, defined to mean an EEA decision taken on the grounds of public policy, public security or public health.

(2) Paragraphs (2) to (6) of regulation 21 transposed relevant limiting provisions in articles 27 and 28.

(3) Regulation 29(3) provided that if a person in the UK appealed against an EEA decision, any directions given under specified powers for that person’s removal from the United Kingdom would have no effect while the appeal was pending.

(4) The specified powers were those which in ordinary circumstances would be used for that person’s removal. In those circumstances there was thus no need for such a person to seek a suspension order, and no need to make provision as to the position pending a decision on an application for a suspension order. The requirements of article 31.2 in that regard did not arise, because under UK law regulation 29(3) ensured that there would be no removal while the appeal against the removal decision was pending.

(5) In most cases the requirements of article 31.4 would not arise. This was because appellants would, in the absence of departure voluntarily, or forced departure prior to lodging an appeal, still be in this country and thus able to present their case in person. (No specific provision, however, appears to have been made in the EEA Regulations for circumstances involving voluntary departure or forced departure prior to lodging an appeal.)

[32]Powers of removal were set out in regulation 19. Relevant for present purposes is regulation 19(3)(b). With immaterial modification it has consistently enabled removal of a person from the UK if the Secretary of State decided that: …removal is justified on grounds of public policy, public security or public health in accordance with regulation 21 …

[33]An amendment to regulation 24(1), taking effect on 1 June 2009, conferred an express power to detain pending a decision on whether to remove a person under regulation 19. It was originally conferred on immigration officers.

(b) …

[34]Regulation 24(3) is concerned with the position once a decision to remove under regulation 19(3)(b) has been taken. It has consistently stipulated that in such a case certain provisions relating to deportation are to apply, including those arising where a deportation order is in force. Among those provisions is paragraph 2 of schedule 3 to the Immigration Act 1971. By paragraph 2(3), where a deportation order is in force against any person, that person: … may be detained under the authority of the Secretary of State pending … removal or departure from the United Kingdom …

B3. The EEA Regulations from 28 July 2014 onwards

[35]Important changes to the EEA Regulations took effect on 28 July 2014. From that date onwards new regulations 24AA and 29AA were added, and regulations 2 and 29(3) were amended.

[36]The new regulation 24AA applies in certain circumstances where the Secretary of State intends to give directions for the removal of a person, described in the regulation as “P”, against whom a removal decision has been taken falling within regulation 19(3)(b). In this regard:(1) The circumstances in which regulation 24AA applies are: (a) P has not appealed against the [relevant] decision…, but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or (b) P has so appealed but the appeal has not been finally determined.

(2) By paragraph (2) where regulation 24AA applies the Secretary of State can only give directions for P’s removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P’s appeal, would not be unlawful under section 6 of the Human Rights Act 1988.

(3) Paragraph (3) provides that the grounds on which the Secretary of State can certify a removal under paragraph (2) include (in particular) that P would not, before the appeal was finally determined, face a real risk of serious irreversible harm if removed the country or territory to which P is proposed to be removed.

(4) Paragraph (4) provides: If P applies to the appropriate court or tribunal (whether by means of judicial review, or otherwise) for an interim order to suspend enforcement of the removal decision, P may not be removed from the United Kingdom until such time as the decision on the interim order has been take, except – (a) where the expulsion decision is based on a previous judicial decision (b) where P has had previous access to judicial review; or (c) where the removal decision is based on imperative grounds of public security. (a) where the expulsion decision is based on a previous judicial decision (b) where P has had previous access to judicial review; or (c) where the removal decision is based on imperative grounds of public security.

[37]A comparison of the new regulation 24AA(4) with the text of article 31.2 shows that the express restriction in that article on pre-redress expulsion has been transposed in a way which no longer states that that restriction has effect where “an application for appeal against or judicial review of an expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision”. Instead, it states that the restriction has effect “if P applies to the appropriate court or tribunal (whether by means of judicial review, or otherwise) for an interim order to suspend enforcement of the removal decision”.

[38]The new regulation 29AA enables an individual who has been removed pursuant to a decision to remove under regulation 19(3)(b), has appealed against that decision, and has been given a hearing date for the appeal, to apply for temporary admission in order to make submissions in person at the hearing. By regulation 29AA(3) the Home Secretary must grant permission, except when the individual’s appearance may cause serious troubles to public policy or public security. For present purposes, regulation 29AA can be assumed to transpose accurately the express qualification in article 31.4 on the host state’s ability to maintain pre-redress exclusion.

[39]The amendment to regulation 2 concerns the definition of “an EEA decision”. It excludes from that definition a decision under regulation 24AA or 29AA.

[40]The remaining amendment is to regulation 29(3). It has the effect that regulation 29(3) does not apply to removal decisions under regulation 19(3)(b).

[41]These provisions are discussed further in sections D onwards below. No changes were made to regulation 19(3)(b), nor to regulation 24. C. History of events

C1. Events in Romania prior to 2007

[42]I noted earlier that X was detained in 2004 in order to serve a 12 year sentence for a crime of murder committed in December 1989. He had in fact been convicted of this crime in 1991, and had been sentenced to 14 years imprisonment. In May 1992 he appealed against that conviction, and in 1993 it was overturned. The case was remitted for a re-trial. X remained in custody on remand. He was released from custody in 1994.

[43]In 1997 X committed two thefts. The first involved breaking into the boot of a car, when he took a spare tyre. In the second, he forced open the door of a car, from which he took a radio stand and a microphone, two halogen light bulbs, a pen knife and an audio cassette case. In 2002 he was sentenced to 9 months imprisonment for these thefts; that sentence was in due course directed to run concurrently with his sentence for the crime of murder. There is no suggestion that these thefts have any significance in the present case. In the remainder of this judgment I shall ignore them.

[44]In 2001 the outcome of X’s re-trial was that he was re-convicted of murder. A sentence of 12 years imprisonment was imposed. However X remained at liberty pending an appeal against his conviction. That appeal was unsuccessful and in 2004 X was detained to serve his sentence of 12 years imprisonment, subject to credit being given for time spent earlier in custody on remand.

C2. Events 1 Jan 2007 to 27 July 2014

[45]On 1 January 2007 Romania became part of the European Union and transitional arrangements were made for workers. These transitional arrangements, which applied to nationals of Romania and Bulgaria, were in force from 1 January 2007 to 31 December 2013. They took the form of a Workers Authorisation Scheme. It was sometimes referred to as “the WAS”. I shall refer to it as “the transitional scheme”.

[46]As noted in section A1 above:(1) in 2008 X was released early on conditions;

(2) when granting conditional release, the Romanian court found that there was sound evidence of rehabilitation;

(3) in 2009 X left Romania and came to the UK;

(4) after X had arrived in this country the Home Secretary granted him residence as a student.

[47]The grant of residence as a student was conferred on 28 May 2009, when X was given student registration, permitting him to work for up to 20 hours per week under the transitional scheme. He studied at an institution providing English language teaching from 22 April 2009 to 9 July 2009. This was followed by a further period of study from 17 September 2009 to 9 July 2010 at a further education college. He has remained in the UK since then.

[48]When X ceased to be a student on 9 July 2010 his entitlement to reside as a student came to an end. Moreover, his entitlement to work under the transitional scheme lapsed. During the period prior to 31 December 2013 X made applications on 9 June 2011, and again on 23 June 2012, for exemption from the transitional scheme. X states that his employer told him that the Home Office had said he could work full time following receipt of the 2012 application. In these proceedings, however, as in the deportation appeal, the Home Secretary, has asserted that X was unlawfully in the UK between 15 October 2010 and 31 December 2013.

[49]On 31 December 2013 the transitional scheme came to an end. It is accepted by the Home Secretary that on and after 1 January 2014 X did not need authorisation or exemption in order to be able to work, and that he worked lawfully here between 1 January and 17 April 2014.

[50]It is convenient to mention here two other events which occurred before 28 July 2014. First, there was an event which is a matter of historical record only. In January 2013 X was arrested by the police for possession of cannabis. No action was taken. This event is immaterial to the present case, and I ignore it. The second event is more important. On 20 May 2014 X was admitted to a residential care home for vulnerable male adults with complex needs. I shall refer to it as “CH”. He had recently been discharged from inpatient detoxification, and CH was incorporated into his support plan. He was described by CH as an individual whose pattern of excessive alcohol use had caused alcohol related brain impairment (“ARBI”). This was said to have a severe impact on his cognitive perceptions of other people, himself, the world and the future, attributable to his clinically depressive state of mind.

C3. Events 28 July 2014 to 19 March 2015

[51]As noted in section B above, important changes to the EEA regulations took effect on 28 July 2014.

[52]On 8 September 2014 X, with the benefit of his support plan at CH, had improved sufficiently to begin a counselling skills course at a careers college which I shall refer to as “CC”. It was a part time course involving attendance of 5 hours per week over a period of 18 weeks. CC stated that the course would give counselling skills useful in a variety of roles which might include key working, care assistance, support worker or teaching assistant. Areas of work could include mental health, the homeless, substance misuse, education and health and social care.

[53]On 20 November 2014 a notice addressed to X was signed on behalf of the Home Secretary. It was headed: NOTICE THAT YOU ARE LIABLE TO DEPORTATION PURSUANT TO THE IMIGRATION (EUROPEAN ECONOMIC AREA) REGULATIONS 2006

[54]For convenience, when quoting from this and other documents, I have added identifying references in square brackets. The notice stated, among other things:(1) under the heading, “Reasons for deportation” [1] As a result of your criminality your deportation is considered to be justified on grounds of public policy and/or public security. [2] This is because … at Constanta High Court, Romania you were convicted of Murder for which you were sentenced to 12 years imprisonment. The offence you committed is considered to be particularly serious …

(2) under the heading, “Current immigration status” [4] In reaching this position, and based on the available evidence, full account has been taken of your immigration status. [5] You are an EEA national and as such you qualify for consideration under the [EEA] Regulations. There is no evidence of your lawful entry into the United Kingdom. It is not known if you have been exercising treaty rights.

(3) under the heading, “Detention” [14] As you are liable to deportation under regulation 19(3)(b) … regulation 24 applies and you may be detained pursuant to paragraph 2 of schedule 3 to the Immigration Act 1971 pending the making of a deportation order.

[55]A document forming part of the notice stated that if X thought there were reasons why he should not be deported, he was required to send them to Immigration Enforcement within 20 working days of the date of service of the notice.

[56]It is accepted by the Home Secretary that this notice was not effectively served on X. A new notice in materially identical terms was signed on 5 December 2014. It is accepted by the Home Secretary that this, too, was not effectively served on X. C4. Events 19 March to 11 May 2015 C4.1 Form IS.91 & 20 March notice; X’s detention 23 March

C4. Events 19 March to 11 May 2015

[57]A further notice (“the 20 March notice”) was signed on 20 March 2015. It was in materially identical terms to those dated 20 November and 5 December 2014.

[58]Also on 20 March a form IS.91 was signed by a Home Office official. I shall refer to it, as signed on 20 March 2015, as “the signed IS.91”.

[59]Form IS.91 was a detention authority, designed to be passed on to each successive custodian as appointed by the Home Office. The signed IS.91 authorised the detention of X and gave certain information about him. He was stated to be a person in respect of whom the Home Secretary: … is considering whether there are reasonable grounds for suspecting that they may be removed from the UK under regulation 19(3)(b) of the EEA Regulations. Regulation 24(1) of [the EEA Regulations] applies.

[60]On 23 March 2015 X was detained by the police and taken to a police station. It is said by the Home Secretary that the police acted under powers conferred by the Police and Criminal Evidence Act 1984. There is an issue as to whether the Home Secretary is responsible for that detention.

C4.2 The 24 March detention authorisation

[61]A detention review on 24 April 2015, in relation to what it described as “Initial detention (imminent release) 24/3/15”, set out observations made by an authorising officer on 24 March 2015. These observations are also recorded, under the heading “Detention authorised under Regulation 24(1)”, as an entry in a case record sheet disclosed by the Home Office. The observations stated: X has a conviction in Romania for murder, which attracted 12 years imprisonment. Due to this conviction X was issued with a stage 1 liability notice. It has come to light that X vacated his last known address 6 months ago, the Police have located him at a new address. He poses a significant risk of harm. I am satisfied that detention is proportionate and that the risks associated with his release outweigh the presumption to liberty. I therefore authorise detention.

C4.3 Form IS.91RA and the 24 March letter

[62]The 20 March notice was served on X on 24 March 2015 at the police station. Documents signed by a Home Office official on 24 March 2015 included a completed form IS.91RA and a letter to X (“the 24 March letter”).

[63]Relevant parts of form IS.91RA were concerned with risk factors. As completed, it indicated that there had been a check of the police national computer, and that the result indicated risk. The form identified ten particular factors which might indicate a potential risk. As completed, the form stated that there was no history or threat in relation to six of these factors. It was also stated, however, that there was a history or threat in relation to two of these factors, namely “Violence” and “Medical problems/concerns”, and that in relation to each of them this indicated a potential risk. The remaining two factors were “Disruptive behaviour” and “Abuse of women/children”: the form indicated that it was not known whether there was a history or threat in relation to these factors. Comments added when completing the form included: X has been convicted of murder in his country of origin Romania on 22 March 2001. There are no other convictions. He is presently detained at … police station. X has informed the Immigration Officer that he has been alcohol free since 7 April 2014. However, that he suffers from depression.

[64]Turning to the 24 March letter, in this paragraph and subsequent paragraphs I set out certain passages from that letter. After a formal first sentence, the letter continued: [1.2] As the Secretary of State is considering whether there are reasonable grounds for suspecting that you may be removed from the UK under Regulation 19(3)(b) of the EEA Regulations. [1.3] Therefore Regulation 24(1) of the [EEA Regulations] applied and you are liable to detention. [2.1] While there is a presumption in favour of release, because of your criminality/the likelihood of re-offending/the seriousness of the harm to the public should you re-offend and/or high risk of absconding, there is reason to believe that you would not comply with any restrictions attached to your release. [3.1] The Secretary of State, having carefully considered the particulars of your case, is satisfied that your detention is justified under 19(3)(b) of the EEA Regulations. [3.2] Therefore Regulation 24(1) of [the EEA Regulations] applies and you are liable to detention.

[65]The letter then stated: [5.0] It has been decided that you should be detained: [5.1] To effect removal from the United Kingdom. [5.2] You are likely to abscond if given temporary admission or release. [5.3] There is insufficient reliable information to decide whether to grant you temporary admission or release. [5.4] Your release carries a high risk of public harm. [5.5] There is a risk of further re-offending.

[5.0] It has been decided that you should be detained:

[66]The following paragraph also began with a statement in bold: [6.0] The decision to detain you has been reached on the basis of the following factors: [6.1] You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place. You have not provided information as to whether you have friends or family in the United Kingdom. [6.2] You have shown a lack of respect for Romanian law as evidenced by your conviction for murder … for which you received a 12 year sentence. [6.3] You have been assessed as posing a risk of serious harm to the public because you have committed the offence of murder for which you received a 12 year sentence. [6.4] You have been convicted of murder … and there is a significant risk that you will re-offend. [6.5] Your unacceptable character, conduct or associations. You have committed the act of murder and this is considered as unacceptable conduct.

[67]The next paragraph in the letter stated that the Home Secretary had taken into account articles 5 and 8 of the European Convention on Human Rights. After noting that article 5 permitted arrest or detention where action was being taken against a person with the view to deportation, it continued: [7.3]You are the subject of deportation action. [7.4]The Secretary of State therefore considers that there is a legitimate aim in maintaining your detention. [7.5]She also considers when taking into account all the known facts of your case that detention is proportionate to a social need being fulfilled and that it is necessary for the prevention of disorder and crime and is in the wider interest of the maintenance of an effective immigration policy.

[68]There were then two paragraphs in the letter which stated that the Home Secretary had considered X’s right to respect for private and family life, and was not satisfied that his relationships in the United Kingdom were of sufficient proximity to give rise to family like for the purposes of

article 8 ECHR

. In the following paragraph the letter stated: [10.1]In considering whether private life exists the Secretary of State notes that you have lived with your relatives and that they maintained you. [10.2]No evidence has been provided to show that you have established a private life independent of your relatives. [10.3]Whilst the Secretary of State accepts that during your time in the United Kingdom you may have established a private life she is of the view that interference can be justified in the circumstances of this case. [10.4]The State has the right to control the entry of non-nationals into its territory, and article 8 does not mean that an individual can, in all circumstances, choose where they wish to enjoy their private life when there is no real obstacle to them establishing a private life elsewhere. [10.5] Moreover any private life you have has been established whilst you have been in this country unlawfully, in the knowledge that you had no right to remain here and may be removed at any time.

[69]The final paragraph of this section of the 24 March letter stated: [11.1]In reaching this decision the Secretary of State has balanced your rights against the wider rights and freedom of others and the general public interest. [11.2]The Secretary of State has weighed up the extent of your possible private/family life against your criminal convictions. [11.3]She considers that her actions are proportional to a social need being fulfilled and does not accept that the decision to maintain your detention would breach article 8. [11.4]It is considered that your detention is justified for the reasons stated in this letter. …

C4.4 The 20 April representations

[70]On 20 April 2015 representations (“the 20 April representations”) were made by X’s then solicitors, UK Migration Lawyers (“UKML”). Accompanying the representations were numerous enclosures. They included:(1) A letter dated 27 January 2015 from Mr A, the substance misuse counsellor at CH, confirming among other things that X was “currently engaged in our extensive five day, weekly residential rehabilitation programme”. Mr A added: … it is of paramount importance that his rehabilitation continues unhindered so as not to restrict his chances of successful and sustainable long term sobriety …

(2) A letter dated 17 April 2015 from Mr B, the service manager at CH, referring to X’s state of health and “previous life on the streets” and commenting that he had shown “extraordinary progress in managing his addiction and sorting out a new direction for his life”. The letter continued that X had been an exemplary model for others recovering from alcohol addiction, and had been made the responsible adult in the house when no staff were available during weekends. Mr B stated that “it would be a real setback” for X if he were not able to remain here to complete his studies to be an addiction counsellor.

(3) A character reference from his personal tutor at a college of further and higher education, where X had started a diploma for IT users in September 2014, and had been described as “an exceptional learner”.

(4) A letter from Lt C, the Corps Officer (Minister) at a Salvation Army Church, where X had been a regular attendee since December 2013; the letter described his gardening work at the church and his achievements in continuing to stay free of alcohol, adding: The church members are very distressed that someone who has become part of the family is not with us and facing the fear of being deported back to a country where he has no family, no friends, no support, no college place, no home. His life has been transformed over the past 18 months and he is really making something of his life here … . It would be a terrible shame if all this progress was rewarded with deportation. We also miss the contribution that he brings to our church family.

(5) X’s bank statements for the account that he held with Barclays bank.

[71]The representations urged that removal of X by deportation would breach his Convention rights, and added that X submitted an application for leave to remain in the UK on the basis of his private and family life. The representations made reference to X’s “intense extensive treatment” at CH, adding that he had made good progress and wished to reside in the UK in order to continue with the rebuilding of his life. As to his private and family life, they described how he had integrated into British society. In that regard, they said that he had become heavily involved with the Salvation Army, that he had volunteered with a local Volunteer Centre, and that, as a result of his education, employment and involvement with organisations in the UK, he had made numerous friends who are present and settled in the UK. After making reference to relevant legislative provisions and case law, the representations asserted that social, cultural or family ties with Romania were non-existent: his mother died when he was 9 and his father when he was 15. X’s bank statement showed that he had not remitted any money to Romania. The representations asserted that X had neither a home nor income in Romania, and that prior to coming to the UK he had been homeless. It was said that any upheaval in his life would be to his detriment, leaving him open to emotional distress which could jeopardise his personal wellbeing. Returning to his position here, it was said that he had become accustomed to the way of life in the UK, had studied and worked here, had aspirations to further his education, was fluent in English, had overcome his problems, and wished to seek employment and return to a normal life.

[72]The remainder of the representations contained a number of assertions, including:(1) X had always pleaded his innocence; he was remorseful for any wrongs he had committed in his life; he was “determined not to repeat the past mistake”, and was “a reformed character and has rebuilt his life in the UK.”

(2) Refusal to allow X to stay in the UK “would not demonstrate effective immigration control and it would be a direct, unjustified and disproportionate interference with his Human Rights.”

(3) The legitimate aim of proper immigration control did not outweigh X’s rights to respect for his family and private life in the UK, he had established a family life, and any potential removal would be a major interference with his private life rights under

article 8 ECHR

(4) Turning to the certification under regulation 24AA, the representations said that X suffered from “depressions, anxiety and a dis-impairment of his cognitive ability”. Referring to X’s alcohol detoxification program the representations said that he had been sober ever since beginning it and that any upheaval and turmoil could lead to a relapse in psychological trauma to him. It was said that the certification of X’s human rights claim contravened his Convention rights.

C4.5 The 23 April decision notice

[73]A letter from the Home Office was sent to X at Dover IRC on 23 April 2015. It enclosed a notice of the same date (“the 23 April decision notice”) which recorded decisions by the Home Secretary to make a deportation order, to refuse X’s representations under the EEA regulations, and to refuse X’s “protection and/or human rights claim”.

[74]The 23 April decision notice included two paragraphs recording that the Home Secretary had decided to certify X’s case under regulation 24AA, and that the Home Secretary did not consider that there would be a real risk of serious irreversible harm if X were to be removed pending the outcome of any appeal he might bring. The text of these two paragraphs is set out in section E1 below.

[75]The remainder of the 23 April decision notice included sections dealing with the right to appeal, readmission to the UK for the purposes of making submissions in person at any appeal hearing, the need to tell the Home Office about any new reasons or grounds as soon as reasonably practical, removal from the UK and the consequences of illegally staying in the UK.

C4.6 The 23 April deportation order & detention authorisation

[76]Also accompanying the letter of 23 April 2015 was a signed deportation order (“the 23 April deportation order”). It recorded that the Home Secretary had decided, pursuant to regulation 19(3)(b) of the EEA regulations, that it was justified on grounds of public policy/ public security to deport X from the United Kingdom. The order required X to leave and prohibited him from entering the United Kingdom so long as the order was in force. In addition, the order stated that in pursuance of paragraph 2(3) of schedule 3 to the Immigration Act 1971, the Home Secretary authorised X to be detained until he was removed from the United Kingdom.

C4.7 The 24 April detention review

[77]An assessment was made by an executive officer for the purposes of the detention review on 24 April 2015 (see section C4.2 above). It included the following: 8. Assessment of risk of absconding. High. He is aware of Home Office’s intention to deport him and had provided no evidence of close ties in the UK. It is unclear how anyone can exert sufficient influence over to remain in contact with Home Office officials and it is considered that he will have little incentive to comply with any release conditions that might be imposed. 9. Assessment of re-offending. Low. He has had a single conviction and for that reason assessed as posing a low risk of re-offending. 10. Assessment of risk of harm to the public. Medium. His index offence is murder and he is assessed as presenting a medium risk of harm to the public.

[78]The recommendation made by the executive officer for the purposes of the review on 24 April 2015 was as follows: 18. Recommendation (whether to maintain detention or release, supported by reasons). [18.1] This case has been considered in line with chapter 55 of the Enforcement Instruction and Guidance and the presumption in favour of release, but do not consider it appropriate at this time for the following reasons. [18.2] He is aware of Home Office’s intention to deport him and has provided no evidence of close ties in the UK. It is unclear how anyone can exert sufficient influence over [him] to remain in contact with Home Office officials and it is considered that he will have little incentive to comply with any release conditions that might be imposed. He is assessed as posing a high risk of absconding. [18.3] … at the Constanta High Court Romania, X was convicted of a serious offence of murder and sentence to 12 years’ imprisonment. The length of sentence would indicate the seriousness of the offence and the potential to cause serious harm to the public; and he is considered to pose a medium risk of harm to the public. However, that being his singular offence to date he is considered to pose a low risk of re-offending. [18.4] It is considered therefore that the risk of absconding and harm he presents outweighs the presumption in favour of release. [18.5] Maintain detention?

[18.5] Maintain detention?

[79]The 24 April review then set out the reasons given by a senior executive officer who acted as authorising officer. Those reasons began with a paragraph which I shall refer to as [19.1] and which effectively repeated what had been stated in the passage at [18.1], cited above. The authorising officer’s reasons continued: [19.2] Although X has committed one offence, he was convicted of murder whilst in Romania. This is a serious offence which attracted a 12 years imprisonment sentence. As X has not committed any further offences his risk to re-offend is assessed as low, his risk of harm is assessed as medium. It is noted that X is a recovering alcoholic and this is a factor that may heighten his risk to offend. [19.3] X has no strong ties in the UK and no one that could [exert] influence on him. Whilst in the UK he was admitted into a residential home for vulnerable males with complex needs, due to his vulnerability this should be considered as a factor in his risk to abscond. [19.4] Once Bio data and an EUL has been obtained X can be removed from the UK. In light of the information above, and the risks of re-offending, harm and absconding, I consider it outweighs the presumptions to release; continued detention is therefore authorised. [19.5] Please note this detention review has been submitted late, due to exceptional circumstances, but this has made no material difference to the lawfulness of continued detention.

C4.8 Events 5 to 10 May inclusive

[80]On 5 May 2015 friends of X wrote to Immigration Enforcement, explaining that they had authority to act on his behalf. They enclosed a letter of reference from Dr D, X’s Alcoholics Anonymous sponsor since July 2014. Among other things, they also enclosed X’s own personal account of his circumstances in Romania relating to his conviction.

[81]X’s appeal against the deportation order was lodged on 6 May 2015. Payment of the appropriate fee in respect of X’s appeal was made.

[82]On 8 May an immigration officer signed a notice of deportation arrangements. The notice said that the Home Secretary had directed X’s removal from the United Kingdom to Romania on 15 May 2015, and that X must report at Heathrow for that purpose. C5. Events 11 May 2015 to the end of August 2015 C5.1 The 12 May pre-action protocol letter

C5. Events 11 May 2015 to the end of August 2015

[83]On 12 May 2015 X’s current solicitors, Deighton Pierce Glynn, sent to the Home Office a judicial review pre-action protocol letter (“the 12 May pre-action protocol letter”). A summary at the start of the letter included assertions that if the Home Secretary had applied her mind to the questions she needed to ask herself, and to the correct legal tests, she would not have detained X or decided to remove him from the UK. The summary added that the EEA regulations were unlawful in that they did not give proper effect to EU law. Section 7 of the letter set out details of the steps that the Home Secretary was expected to take. These included cancellation of the removal directions, and the release of X back to CH.

C5.2 The 14 May supplementary letter

[84]On 14 May 2015 the Home Office issued a supplementary letter (“the 14 May supplementary letter”) responding to the pre-action protocol letter. The 14 May supplementary letter noted that under the pre-action protocol the Home Secretary would be allowed up to 14 days to consider the matter, and objected that the pre-action protocol was not appropriate when X was due to be removed on 15 May 2015. As to the substance of the pre-action protocol letter, the supplementary letter included the following:(1) In response to X’s claimed right to reside in the UK under EU law: … The Secretary of State is entitled to deport those whose presence in the UK is not deemed to be in the public interest and where it is not reasonable to leave the public exposed to an unacceptable level of risk. Due to the nature of your client’s offence, he is deemed to pose such a risk. …

(2) In response to an assertion that the decision to deport X was disproportionate, and that he did not pose an ongoing risk of harm: …Although your client has presented some evidence of having worked and studied in the UK, he has not resided here for a significant period of time. He is not estranged from his first language or culture and any acquaintances or connections made in the UK can be maintained via modern forms of communication. When balanced against the very serious offence committed by your client and his potential risk of harm, the public interest in his deportation outweighs his desire to remain in the UK. It is, therefore, not accepted that the decision to deport your client is disproportionate and it is further not accepted that your client does not pose an ongoing risk of harm; particularly in light of the fact that he has adduced no evidence that he has addressed the underlying causes which prompted him to offend in such a serious way.

(3) In response to complaints about certification under regulation 24AA: … The grounds upon which the Secretary of State may certify a claim under regulation 24AA(2) include (in particular) where the person would not face a real risk of serious irreversible harm if removed to the country of territory to which he is proposed to be removed, notwithstanding that the appeal process has not yet begun and/or been exhausted. The Secretary of State is entitled to apply certification under Regulation 24AA to cases where there is no evidence that deportation would lead to serious, irreversible harm. …

(4) In relation to the fact that X was being detained: In reference to your points regarding your client’s detention, the decision to detain was fully considered on the facts presented by your client. The decision to detain fully meets the criteria set out under the power to detain under the Immigration Act 1971. Your client poses a significant risk of harm to the public in relation to his conviction of murder in Romania. We are satisfied that detention is proportionate, as the risks associated with his release outweigh the presumption to liberty and to achieve our aim in Public Policy/Public Security. … His detention has been considered in line with Chapter 55 of the Enforcement Instruction and Guidance and the presumption in favour of release, but this is not considered to be appropriate at this time.

(5) On the question whether deportation would interfere with X’s rights under

article 8 ECHR

: …The immigration rules, which do not apply directly to EEA nationals, are considered to be a complete code for considering article 8 claims and they reflect Parliament’s view of what the public interest requires for the purposes of article 8(2). Article 8 applies equally to everyone, regardless of nationality, and it would not be fair to consider article 8 claims from EEA nationals either more or less generously than claims from non-EEA nationals. In your client’s case, his article 8 claim was decided consistently with Parliament’s view of the public interest as set out in the above instruments and consideration was given to whether your client met the exceptions to deportation or whether there were very compelling circumstances such that he should not be deported. As your client received a sentence of over 4 years’ imprisonment for his murder conviction, his deportation is deemed to be conducive to the public interest. Paragraph 398 of the immigration rules and section 117C(6) of the 2002 Act reflect Parliament’s view that the public interest requires the deportation of those sentenced to at least four years’ imprisonment unless there are very compelling circumstances over and above those described in the exceptions to deportation. The exceptions are set out at paragraphs 399 and 399A of the Immigration Rules and sections 117C(4) and 117C(5) of the 2002 Act. As your client was sentenced to 12 years’ imprisonment, his case did not meet the exceptions to deportation but consideration was given to whether there were very compelling circumstances in his case; such that deportation would breach his rights under

article 8 of the ECHR

. The evidence that your client submitted, in support of his human rights claim, was given careful consideration but there was no evidence that there were very compelling circumstances in your client’s case. It is not accepted that your client’s deportation would amount to a breach of his article 8 rights because any interference with his rights would be justified, when balanced against the risk of serious harm which he is considered to pose to the public.

C5.3 The grant of the stay, and letters of 18 & 19 May 2015

[85]On 14 May a stay on removal was granted by Ouseley J and the present proceedings were issued: see section A1 above. On 18 May 2015 X’s solicitors wrote to the Home Office, repeating an earlier request for X’s release from detention, and adding: There is no prospect of imminently removing our client and therefore he should be released applying your policy under chapter 55 EIG

[86]In response on 19 May 2015 a letter was written stating: [2] In deciding whether to grant temporary release, I must be satisfied that your client will comply with the terms of any conditions imposed on him, including a requirement to reside at one address only… and a requirement to report for removal.

[87]After repeating certain of the assertions made in the supplementary letter of 14 May 2015, the letter of 19 May 2015 added: [7] The Secretary of State is satisfied that your client’s conviction for a murder is regarded as serious, and which compels the Secretary of State to give significant weight to the question of protecting society against crime, disorder and moral decadence. The Secretary of State is of the view that the harm which would be caused as a result of any similar instances of offending is such that it is not considered reasonable to leave the public vulnerable to the potential for your client to re-offend. [8] Your client poses a significant risk of harm to the public in relation to his conviction and we are satisfied that detention is proportionate as the risks associated with his release outweigh the presumption to liberty and to achieve [our] aim in Public Policy/Public Security. [9] … His detention has been considered in line with chapter 55 of the Enforcement Instruction Guidance and the presumption in favour of release. Due to the risk of absconding, and the risk of harm that your client poses to society, release is not considered to be appropriate at this time. [10] … your client is fully aware the Home Office is serious in its intentions to deport him… It is considered that your client would have little incentive to remain in contact with the Home Office if released at this stage. This decision not to release your client is consistent with the statutory duty to protect the interest of children set out in section 55 of the Borders Citizenship Immigration Act 2009.

C5.4 The 22 May detention review

[88]A further detention review was considered by an authorising officer on 22 May 2015. As to the assessment of risk of absconding, of re-offending and of risk of harm to the public, paragraphs 8 to 10 of the document prepared by the executive officer repeated, word for word, paragraphs 8 to 10 of the 24 April detention review. Similarly the recommendation in paragraph 18 repeated, word for word, what had been said in the 24 April review. The authorising officer made comments which included the following: X is a convicted murderer and an alcoholic; he therefore presents a high risk of harm to the public and could not be relied upon to adhere to reporting if released at the present time. Once the JR is concluded removal directions can be reset and he can be deported within a reasonable time scale, therefore it is proportionate to maintain detention for a further 28 days.

C5.5 The 17 June monthly progress report

[89]A monthly progress report on 17 June 2015 noted that X’s deportation appeal was scheduled to be heard on 13 July 2015. It added that X’s case had been reviewed, and that it had been decided that he would remain in detention in order to effect his removal from the UK. Three reasons were then set out. The first two reasons repeated what had been said in the paragraphs which I have numbered [5.1] and [5.2] of the letter of 24 March 2015. The third reason given was: Your release carries a risk of public harm.

[90]The 17 June monthly progress report said that this decision had been reached on the basis of five factors. The first four of these were in materially identical terms to those identified by me as [6.1] to [6.4] of the letter of 24 March 2015. The fifth was in these terms: Your unacceptable character and conduct as a result of the aforementioned conviction.

[91]The report added: Consideration has been given to the factors in favour of release, but due to the seriousness of the offence these must be particularly compelling to outweigh the above, therefore it is considered that detention for the purposes of deportation is reasonable.

C5.6 Permission to proceed, and the 18 June detention review

[92]As noted in section A1 above, on 18 June 2015 Ms Philippa Whipple QC granted permission to proceed with the present claim for judicial review. On the same date an authorising officer completed a further detention review. What was said in paragraphs 8 to 10 and 18 of that review was identical, word for word, with what had been said in the previous reviews. The authorising officer made comments comprising five paragraphs. The first three were materially identical to paragraphs [19.1] to [19.3] in the 24 April detention review. The fourth said that once his appeal rights were exhausted X could be removed within a reasonable timescale. The fifth stated: It is considered that the factors above outweigh the presumption in favour of release and that his detention remains both appropriate and proportionate in the interests of Public Policy (Security or Health) and the maintenance of effective immigration control. Detention authorised for a further 28 days.

C5.7 The 16 July detention review and monthly progress report

[93]On 16 July 2015 there was a further detention review, along with a monthly progress report. As to the detention review, what was submitted to the authorising officer contained paragraphs 8-10 and 18 in identical terms, word for word, to what had been said in earlier detention reviews. The authorising officer noted that a “case management review” was held on 13 July 2015. The parties were to email the judge in relation to directions, and the case had not yet been listed for a full hearing. The authorising officer added: Although his appeal/JR are outstanding, he can be removed within a reasonable timescale once he becomes appeal rights exhausted. Therefore, based on his high risk of absconding and medium risk of harm it is proportionate to maintain detention for a further 28 days.

[94]The monthly progress report on 16 July was in materially identical terms to the report of 17 June. The author of the report appears to have been unaware of the fact that what happened on 13 July 2015 was a case management review: the report simply repeated earlier wording referring to the appeal against deportation “scheduled to be heard on 13 July 2015”.

C5.8 Grant of bail on 21 July

[95]On 21 July, upon the giving by X of a recognizance in the amount of £50, and by Lt C of a recognizance in the amount of £1,000, the FTT granted bail to X. The primary condition of the grant of bail required X to attend the next and every subsequent hearing of the appeal, and following final determination of the appeal, to appear before any immigration officer as directed. Secondary conditions required him to live and sleep at CH, and to report to the UK Border Agency fortnightly.

C5.9 The 23 July notice of restriction

[96]On 23 July 2015 X was released. In this regard a notice of restriction was signed that day on behalf of the Home Secretary. It recorded a decision that X should not continue to be detained, and to impose four restrictions upon him. The first three restrictions were in similar terms to the conditions of bail. The fourth (“the work restriction”) stated that X may not enter employment, paid or unpaid, or engage in any business or profession. The work restriction was the subject of a pre-action protocol letter sent by X’s solicitors on 18 August 2015, and of the proposal to amend described in section A2.3 above. As noted in section A2.3, X no longer seeks to complain about the work restriction in the present proceedings. C6. Events from September 2015 onwards C6.1 Hearing, and outcome, in the FTT

C6. Events from September 2015 onwards

[97]On 23 October 2015 the hearing of X’s appeal against deportation took place before the FTT. As noted in section A1.2, that appeal was allowed in a decision of the FTT promulgated in January 2016.

C6.2 The Home Secretary’s application for permission to appeal

[98]An application by the Home Secretary to the FTT for permission to appeal was unsuccessful. An application was then made to the Upper Tribunal for permission to appeal. That application was refused by the Upper Tribunal in March 2016. The decision to deport X has thus been definitively overturned. D. Challenges to the EEA Regulations & the policy

D1. EEA Regulations & written policy: introduction

[99]X’s grounds at paragraphs 61 to 67 made clear that his challenge to the EEA Regulations was confined to regulation 24AA. They also made clear that X’s complaints about regulation 24AA relied solely on EU law. Those complaints can be grouped under three heads. I shall call them “the reasons complaint”, “the proportionality/unlawful test complaints”, and “the effective remedy complaint”. They are discussed in sections D2 to D4 below.

[100]Turning to the Home Secretary’s policy, complaints were made in X’s grounds at paragraphs 68 to 70. These complaints focused upon written guidance issued by the Home Secretary. X made three complaints about the written guidance. I shall call them the “the blanket policy complaint”, the “travel costs policy complaint”, and the “unlawful policy considerations”. They are discussed in sections D5 to D7 below.

D2. Reg 24 AA: The reasons complaint

[101]Paragraph 62 and 63 of X’s grounds were as follows:62. The purpose of article 31 of the Directive is to ensure procedural safeguards, particularly the right of judicial redress against an expulsion decision. Article 31 permits member states to remove individuals temporarily pending redress, but does not mandate it. Interim removal measures do not constitute part of the Directive’s “result to be achieved”, and are therefore not binding on any member state.

63. The explanatory note to the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2014, which introduced Regulation 24AA, stated that the new provision “reflects the requirements of article 31(2) of Directive 2004/38/EC”. This was not the case.

[102]No issue arises as to what is said in paragraph 62 and the first sentence of paragraph 63. The last sentence of paragraph 63 is not easy to understand. At first I thought it made an allegation that regulation 24AA was inserted under a misconception that article 31.2 required its insertion, even if the UK did not want to insert it. That, however, was not what the explanatory note said. The passage cited from the explanatory note merely said that regulation 24AA “reflects the requirements” of article 31.2. There is no good reason to infer any mistaken belief that regulation 24AA was needed in order to fulfil an obligation, arising under article 31.2, to ensure that regulation 24AA was inserted. Nor did X’s oral submissions advance any such allegation.

[103]Next, I thought that perhaps it made an allegation that the requirements of article 31.2 were not accurately reflected in regulation 24AA. As to that, the requirements of article 31.2 are addressed in paragraph (4) of regulation 24AA. As noted in section B3 above, there is a difference in wording. The limitation found in article 31.2 arises where an: … application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision…

[104]Regulation 24AA(4) does not use this wording. In relation to the limitation which is imposed, it uses wording which in effect identifies the same limitation as is found in article 31.2: a bar, save for cases falling within three specified exceptions, on removal pending determination of an application for an interim order to suspend enforcement of a removal decision. But as to when that limitation arises, it does not expressly describe that limitation as arising where “the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision”. Instead it says that the limitation arises if the person to be removed: … applies to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision...

[105]It became clear in the course of the present challenges that X makes no complaint about this difference in wording. The result was, as I understand it, that paragraphs 62 and 63 were part of wider challenges in paragraphs 64 and 65 of X’s grounds.

[106]For present purposes I need say no more about this difference in wording. I observe only that it may arguably have relevance to questions concerning the second criticism noted in section D3 below.

[107]Returning to the present challenges, I proceed to set out the assertions made in paragraphs 64 and 65 of X’s grounds, so far as relevant for present purposes:64. Article 296 TFEU requires reasons to be given for all ‘legal acts’, which include both legislative measures and decisions affecting an individual. Sufficiently clear and precise reasons must be given to enable the legality of the measure in question to be examined: Bank Mellat v Council of the European Union [2013] EUECJ T-496/10.

65. Prior to the enactment of Regulation 24AA, appeals against deportation in EEA cases were suspensory. The enactment of Regulation 24AA … therefore marked a wholesale change of approach, for which reasons were required as a matter of EU law. No reasons were given for enacting Regulation 24AA …

[108]What is required by article 296 TFEU, in cases falling within its scope of application, is not in dispute. The answer to all of X’s complaints as to a lack of reasons, set out in paragraph 58(i) of the Home Secretary’s skeleton argument, was that article 296 TFEU applies to EU institutions and not to member states. No response to this answer was made in the oral or written submissions for X. In my view it is a complete answer to any complaint that the insertion of regulation 24AA contravened article 296 TFEU.

D3. Reg 24AA: proportionality/unlawful test complaints

[109]In section D2 above I set out the first two sentences, and part of the third sentence, of paragraph 65 of X’s grounds. The remainder of the third sentence of paragraph 65 of X’s grounds contained assertions which lead on to the proportionality/unlawful test complaints. These assertions are to the effect that the insertion of regulation 24AA: …appears to have been done for political/deterrent reasons and without reference to the risk actually posed by EEA nationals pending appeal.

[110]These assertions are not a promising basis for judicial review. An assertion that something appears to have been the case is not enough: it is necessary to assert, to give particulars, and to prove that it was in fact the case. No such express assertion is made, and no particulars are given, in paragraph 65. Thus this part of paragraph 65 affords no basis for complaining about regulation 24AA. I add that detailed complaints about considerations of this kind are made in relation to the Home Secretary’s policy. They are discussed, and rejected, in section D7 below.

[111]X’s grounds contain a complaint about the proportionality, with effect from 28 July 2014, of introducing regulation 24AA. It is found in the fourth, and last, sentence of paragraph 65 of X’s grounds: The [Home Secretary] has provided no evidence to demonstrate that Regulation 24AA was itself proportionate.

[112]On this aspect, too, it seems to me that the Home Secretary has given an answer to which X has provided no satisfactory reply. The essence of the Home Secretary’s answer is that article 31.4 expressly contemplates that, at the very least, there may be circumstances when it is lawful to take the course of excluding an individual pending the hearing of an application for appeal against or judicial review of an expulsion decision. If there may be such circumstances, it can hardly be disproportionate to legislate so as to ensure that in such circumstances, there will be power under the law of the host state to take that lawful course.

[113]It was also said on behalf of X that in order to be lawful regulation 24AA must be justified on public policy, public security or public health grounds. The answer, however, is the same: article 31.4 expressly contemplates that exclusion of an individual may be permissible under EU law pending the hearing of an application for appeal against or judicial review of the expulsion decision. It follows that there can be no objection under EU law to legislative action on the part of the member state to ensure that it will have power to do what EU law permits.

[114]I add that there is a premise behind both these contentions, namely that the changes which took effect on 28 July 2014 could only be made if they were proportionate and justified on public policy, public security or public health grounds. I do not decide whether the premise is correct: it is unnecessary to do so, and the present case is not a satisfactory occasion for doing so.

[115]The unlawful test complaint is set out in paragraph 66 of X’s grounds: Further, Regulation 24AA wrongly imports a threshold test (‘real risk of serious irreversible harm’) developed in and intended for human rights law. As set out above, a measure which interferes with free movement rights of EU citizens must be justified by reference to EU law, and must above all comply with the principle of proportionality. Regulation 24AA as enacted purports to reflect requirements in the Directive which are in fact not requirements, and does so without reference to relevant principles of EU law or the requirements in the Directive.

[116]As developed in submissions, there are two linked criticisms here. The first, which was formulated prior to recent decisions discussed below, is that the Home Secretary’s entitlement to bring about pre-hearing removal under regulation 24AA turns on a test which has been “wrongly imported” from human rights law. This criticism is easily resolved. The words complained of (‘real risk of serious irreversible harm’) appear in regulation 24AA(2). Regulation 24AA(2) requires that a test (“the certification test”) is met. Paragraph 66 of X’s grounds describes the test of ‘real risk of serious irreversible harm’ as a threshold test. That is not so. For reasons given in section D5 below, a conclusion that there is no real risk of serious irreversible harm is simply something which may be included in grounds for saying that the certification test is met. Satisfaction of the certification test is necessary before the Home Secretary can bring about pre-hearing removal. Thus the words complained of constitute no more than a possible element in satisfying a threshold test. Such a threshold test involves no harm to the interests of the individual in question. Accordingly the words complained of cannot warrant a conclusion that the introduction of regulation 24AA was unlawful.

[117]The second criticism arises because the changes which took effect on 28 July 2014 deliberately provided that a decision under regulation 24AA would not be an “EEA decision” for the purposes of the EEA Regulations: see section B3 above. It can thus be said that the way in which regulation 24AA was introduced ensured that the Home Secretary’s ability to bring about pre-redress exclusion under regulation 24AA would not be expressly limited by the obligation, imposed in relation to EEA decisions, to comply with the principles set out in regulation 21. The second criticism is that EU law was broken when regulation 24AA was introduced without an express provision to ensure that action taken under it was required to comply with the principles set out in regulation 21.

[118]This second criticism is not one that I find easy to resolve. It concerns general principles of EU law and the specific principles set out in chapter VI of the Citizens Directive. Each side adopts an extreme position. The Home Secretary says that chapter VI contains no limitations on the ability to bring about pre-redress removal other than the express qualification in article 31.4. X responds that pre-redress exclusion is a measure “taken on grounds of public policy or public security” and thus under article 27 must comply with the principle of proportionality and other principles: see article 27.2. X adds that even without the express provision in article 27.2 the principle of proportionality would be applicable under EU law.

[119]My conclusion in section E below is that the action taken by the Home Secretary under regulation 24AA against X was unlawful for reasons entirely independent of this second criticism. In these circumstances I do not need to resolve whether the correct analysis of this second criticism is that put forward by the Home Secretary or that put forward by X – or some other analysis.

[120]I add that if I were to attempt to decide the point it seems to me questions might arise as to the true meaning of article 31.2 and regulation 24AA(4). Do they establish (or, if the EEA Regulations do not establish, ought they to have established) for those protected by the Citizens Directive a straightforward procedure under which suspension of enforcement of a deportation order can be sought in the interests of justice, from the judicial body which will deal with the appeal, at the same time as lodging the appeal? Such a procedure was envisaged by the Upper Tribunal (Blake J and Upper Tribunal Judge Goldstein) in Gheorghiu (reg 24AA EEA Regs – relevant factors)

[2016] UKUT 00024 (IAC)

. (As I interpret it, the judgment refers to suspension of enforcement of the removal decision by using the shorthand of “suspending certification”.) If so, this specific means of interim redress might suggest that the Citizens Directive did not additionally subject pre-redress exclusion to constraints in articles 27 and 28. Moreover, if I were to attempt to decide the point arising in this second criticism, matters of importance discussed in recent cases on proportionality may also arise. In those circumstances I would not be willing to decide the point without hearing further oral submissions, a course which in the circumstances of the present case would involve unwarranted time and expense.

D4. Reg 24AA: the effective remedy complaint

[121]The effective remedy complaint is set out in paragraph 67 of X’s grounds: 67. Article 47 of the EU Charter of Fundamental Rights & Freedoms provides for a right to an effective remedy before an independent and impartial tribunal in the vindication of fundamental EU rights (such as the right to free movement). Regulation 24AA places the removed individual at a significant disadvantage compared to the respondent Secretary of State in preparing for his appeal, in breach of Article 47,

Article 6 ECHR

, and common law principles of fairness.

[122]In December 2015 Ms Julia Smyth, junior counsel for the Home Secretary in the present case, helpfully drew to my attention a recent judgment of the Upper Tribunal in a case in which she had appeared on behalf of the Home Secretary. This was the judgment dated 26 November 2015 in R (Masalskas) v SSHD

[2015] UKUT 677 (IAC)

, [2016] Imm AR 354. In that case Mr Masalskas, represented by Mr Malik of counsel, had been the subject of both a deportation decision falling within regulation 19(3)(b) and a decision authorising pre-redress exclusion under regulation 24AA. The panel in Mr Masalskas’s case, comprising Upper Tribunal Judges Storey and Peter Lane, referred to an earlier case, R (Ahmed) v SSHD

[2015] UKUT 436 (IAT)

concerning restrictions on appeal rights under s 94B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).

[123]In the Ahmed case Ms Smyth, again appearing for the Home Secretary, had submitted that Article 47 was context-specific. The panel in the Ahmed case said at paragraphs 50 and 51: 50. We agree with that last submission. As was noted by the Court of

Justice of the European Union in Case C-249/13 Khaled Boudjlida at [43]:

"... it is... in accordance with the Court's settled case law that ... fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (the judgments in Alassini and Others, C-317/08 to C-320/08, http://www.bailii.org/eu/cases/EUECJ/2010/C31708.htmlEU:C2010:146, paragraph 63; G and R, EU:C:2013:533, paragraph 33; and Texdata Software, C-418/11, http://www.bailii.org/eu/cases/EUECJ/2013/C41811.htmlEU:C:2013:588, paragraph 84)". 51. In order to see where the balance is to be struck in cases of this kind, one looks to the provisions of the Directive. There, as we have noted, the relevant appeal rights are non-suspensive. However, in cases covered by Article 31 (which, we emphasise, does not include the applicant's type of EEA appeal), the persons concerned have a qualified right of re-entering in order to submit a "defence in person"

. The scheme of the Directive is, we find, entirely compatible with Article 47 of the Charter. Article 47 does not necessitate the wholesale conferring of suspensive rights of appeal against any EEA decision. "... it is... in accordance with the Court's settled case law that ... fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (the judgments in Alassini and Others, C-317/08 to C-320/08, http://www.bailii.org/eu/cases/EUECJ/2010/C31708.htmlEU:C2010:146, paragraph 63; G and R, EU:C:2013:533, paragraph 33; and Texdata Software, C-418/11, http://www.bailii.org/eu/cases/EUECJ/2013/C41811.htmlEU:C:2013:588, paragraph 84)".

[124]The panel in Masalskas noted a difference between regulation 24AA and section 94B. Whereas under section 94B the appeal itself would be heard whilst the appellant was outside the UK, in a case falling within regulation 24AA the appellant would (in most circumstances) benefit from the right conferred by article 31.4 and embodied in regulation 29AA to return in order to make submissions in person at the hearing. At paragraphs 36 to 38 of their judgment the panel in the Masalskas case said: 36. That difference might be said to suggest that it would be proper to restrict the proper ambit of regulation 24AA to cases where there was a particularly strong reason to certify notwithstanding that an affected person would in any event have a right to return to be present at their hearing. It seems to us that there are two responses fatal to that suggestion. The first is one we have highlighted already. The EU legislature has expressly permitted states, subject to judicial supervision, to have the power to remove persons pending their appeal. Article 31(1) makes that clear, as does the Commission's Explanatory Memorandum, Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2001/0257 Final - COD 2001/0111 *. In commenting on Article 29 of this document states:

"Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse. The judgment of national courts can be relied on to ensure that the interests of both the individual concerned and the Member States are adequately protected." 37. We accept Ms Smyth's submission that in this respect the EU institutions were concerned to give legislative effect to the judgment of the Court of Justice in Case C 98/79 Pecastaing v Belgium, in which the applicant challenged an order that she leave Belgian territory whilst she had a pending action against the Belgian authorities for refusing her a residence permit. At [9] the Court set out the text of Article 8 of Directive 64/221 which states: "9. According to Article 8: The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration." 38. At [12]-[13] it concluded: "12. On the other hand Article 8 contains no specific obligation concerning any suspensory effect of applications available to persons covered by the directive. If that provision requires that the person concerned should be able to appeal against the measure affecting him it must be inferred, as the Court stated in its judgment in the Royer case (paragraph 60 of the decision), that the decision ordering expulsion may not be executed - save in cases of urgency - before the party concerned is able to complete the formalities necessary to avail himself of the remedy. However, it cannot be inferred from that provision that the person concerned is entitled to remain on the territory of the State concerned throughout the proceedings initiated by him. Such an interpretation, which would enable the person concerned unilaterally, by lodging an application, to suspend the measure affecting him, is incompatible with the objective of the directive which is to reconcile the requirements of public policy, public security and public health with the guarantees which must be provided for the persons affected by such measures. 13. Accordingly, the reply to be given to the questions submitted must be that Article 8 covers all the remedies available in a Member State in respect of acts of the administration within the framework of the judicial system and the division of jurisdiction between judicial bodies in the State in question. Article 8 imposes on the Member States the obligation to provide for the persons covered by the directive protection by the courts which is not less than that which they make available to their own nationals as regards appeals against acts of the administration including, if appropriate, the suspension of the acts appealed against. On the other hand there may not be inferred from Article 8 an obligation for the Member States to permit an alien to remain in their territory for the duration of the proceedings, so long as he is able nevertheless to obtain a fair hearing and to present his defence in full." "

Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse. The judgment of national courts can be relied on to ensure that the interests of both the individual concerned and the Member States are adequately protected." "9. According to Article 8: The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration." "12. On the other hand Article 8 contains no specific obligation concerning any suspensory effect of applications available to persons covered by the directive. If that provision requires that the person concerned should be able to appeal against the measure affecting him it must be inferred, as the Court stated in its judgment in the Royer case (paragraph 60 of the decision), that the decision ordering expulsion may not be executed - save in cases of urgency - before the party concerned is able to complete the formalities necessary to avail himself of the remedy. However, it cannot be inferred from that provision that the person concerned is entitled to remain on the territory of the State concerned throughout the proceedings initiated by him. Such an interpretation, which would enable the person concerned unilaterally, by lodging an application, to suspend the measure affecting him, is incompatible with the objective of the directive which is to reconcile the requirements of public policy, public security and public health with the guarantees which must be provided for the persons affected by such measures. 13. Accordingly, the reply to be given to the questions submitted must be that Article 8 covers all the remedies available in a Member State in respect of acts of the administration within the framework of the judicial system and the division of jurisdiction between judicial bodies in the State in question. Article 8 imposes on the Member States the obligation to provide for the persons covered by the directive protection by the courts which is not less than that which they make available to their own nationals as regards appeals against acts of the administration including, if appropriate, the suspension of the acts appealed against. On the other hand there may not be inferred from Article 8 an obligation for the Member States to permit an alien to remain in their territory for the duration of the proceedings, so long as he is able nevertheless to obtain a fair hearing and to present his defence in full."

[125]Paragraph 39 dealt with the panel’s second reason, which I need not set out here.

[126]Submissions in relation to Masalskas were set out in a joint note from counsel dated 4 March 2016. The Home Secretary relied on the decision as answering points made by X concerning the legality of regulation 24AA. The submissions for X did not directly address what was said by the panel in the passages cited above. The only relevant point made was a suggestion that in Masalskas the legality of regulation 24AA and its compatibility with the Citizens Directive were not in issue. In my view the points made by X in support of his effective remedy complaint were plainly in issue in Masalskas, and were rightly rejected by the panel.

D5. The blanket policy complaint

[127]Paragraph 68.1 of X’s grounds criticised paragraphs3.1 and

3.2 of the Home Office guidance on regulation 24AA certification dated 20 October 2014. It was said that in those paragraphs the Home Secretary was operating a ‘blanket’ policy of certifying wherever possible, without regard to proportionality, the individual circumstances of each case, or the length of time until an appeal.

[128]For present purposes I need set out only paragraph 3.2 of the guidance. It stated: 3.2 The Government’s policy is that the deportation process should be as efficient and effective as possible. Case owners should therefore seek to apply regulation 24AA certification in all applicable cases where doing so would not result in serious irreversible harm.

[129]The Court of Appeal decision in R. (Kiarie) v Secretary of State for the Home Department

[2015] EWCA Civ 1020

;

[2016] 1 WLR 1961

was concerned with similar guidance under s 94B of the 2002 Act (see section D4 above). Section 94B affected a person (“P”) liable to deportation for the public good. Certification under that section would deprive P of an entitlement to appeal within the UK. Subsections (2) and (3) of s 94B provided: (2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.

[130]Commenting on these subsections, Richards LJ (with whom Elias and McCombe LJJ agreed) said at paragraphs 34 and 35 of his judgment: 34 The central provision in section 94B of the 2002 Act is subsection (2): the power to certify arises only:

“if the Secretary of State considers that … removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 …” (Emphasis added.)

In other words, the Secretary of State cannot lawfully certify unless she considers that removal pending the outcome of an appeal would not be in breach of any of the person’s Convention rights as set out in Schedule 1 to the Human Rights Act 1998. 35 By subsection (3), a ground for certification is that the person would not, before the appeals process is exhausted, face “a real risk of serious irreversible harm” if removed to the country or territory to which he or she is proposed to be removed. That ground does not, however, displace the statutory condition in subsection (2), nor does it constitute a surrogate for that condition. Even if the Secretary of State is satisfied that removal pending determination of an appeal would not give rise to a real risk of serious irreversible harm, that is not a sufficient basis for certification. She cannot certify in any case unless she considers, in accordance with subsection (2), that removal pending determination of any appeal would not be unlawful under section 6 of the Human Rights Act 1998. That the risk of serious irreversible harm is not the overarching test was rightly accepted by Lord Keen on behalf of the Secretary of State at the hearing of the appeal. 36 It follows that the Secretary of State’s guidance on section 94B is inaccurate and misleading in focusing as it does on the criterion of serious irreversible harm in subsection (3) and failing to focus on the central provision in subsection (2). “if the Secretary of State considers that … removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 …” (Emphasis added.)

[131]There is an obvious parallel with the structure of regulation 24AA. The inaccurate and misleading passages in the s 94B guidance included a provision in materially identical terms to the wording paragraph 3.2 of the regulation 24AA guidance quoted above. The true position is that, applying the reasoning in Kiarie, a conclusion that there is no real risk of serious irreversible harm is no more than something which may be included in grounds for saying that the certification test is met.

[132]The conclusion that this aspect of the regulation 24AA guidance was unlawful is inevitable. The Home Secretary did not seek to contend otherwise.

[133]The Home Secretary advanced a contention, however, that it did not necessarily follow that decisions taken under regulation 24AA must be quashed. I deal with that contention in section E below.

[134]The joint note from counsel dated 4 July 2016 was accompanied by the current version of the regulation 24AA guidance. It differs substantially from the version applicable when the decision under regulation 24AA was taken in relation to X. X invited me to conclude that it nevertheless remained flawed. I decline that invitation: assessment of later versions of the guidance is best left to cases where it is directly in issue.

D6. Travel costs policy complaint

[135]Paragraph 68.2 of X’s grounds said that the regulation 24AA guidance was unlawful because it required the removed individual to bear the cost of travel back to the UK. Two answers were given by the Home Secretary. The first was that the point does not arise: the interim injunction in the present case prevented X’s removal, and was accordingly able to make submissions to the FTT without the need to incur the costs of travelling back to the UK from Romania. The second was that X had not at any stage complained of the requirement in the 23 April deportation decision to pay his own costs of returning.

[136]To my mind this complaint does not call for consideration now. The policy in relation to travel costs at the time (which has in any event now changed) had no bearing on the decision to bring about pre-redress exclusion. There was no time at which it gave rise to an actual issue between the parties. For these reasons I decline to examine this complaint.

D7. Unlawful policy considerations

[137]Paragraph 70 of X’s grounds stated: … the Defendant’s policy is motivated by general political/economic considerations (“the deportation process should be as efficient and effective as possible”). The Claimant submits that it is difficult to see how a blanket policy of interim removal (with an automatic right of re-entry in most cases) can contribute to the efficiency or effectiveness of the deportation system, unless the Defendant’s intention is to deprive EU citizens of a practical and effective right of redress.

[138]This complaint is said to be justified by the wording in paragraph 3.2 of the regulation 24AA guidance. I have already held paragraph 3.2 was unlawful because the wording it used was incompatible with a correct understanding of regulation 24AA. Accordingly this additional complaint about that wording serves no useful purpose. Nor, in its own terms, does this complaint demonstrate anything unlawful over and above the incompatibility that I have described. A desire to ensure that the deportation process is efficient and effective is not in itself objectionable, so long as it does not involve a mistaken interpretation of the regulation. There is no warrant for the suggested inference as to the Home Secretary’s intention, especially when it has long been recognised that a host state can have legitimate reasons for pre-redress exclusion: see paragraph 36 of the judgment in Masalskas. E. Pre-redress exclusion of X under Reg 24AA

E1. Pre-redress exclusion of X: introduction

[139]What the Home Secretary did under regulation 24AA is found in the 23 April decision notice (see section C4.5 above). It contained two paragraphs concerning regulation 24AA. They were as follows (with sentence numbering added for convenience): [55.1] Under regulation 24AA of the 2006 Regulation the Secretary of State may certify that, despite the appeals process not having been begun or not having been finally determined, the person’s removal would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). [55.2] The grounds upon which the Secretary of State may certify a claim under regulation 24AA(2) include (in particular) where the person would not face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed, not withstanding that the appeal process has not yet begun and/or been exhausted. [55.3] If your case is certified under regulation 24AA then pursuant to regulation 29 you will be removed to the country or territory to which it is proposed that you [be] removed notwithstanding that the appeal process has not yet begun and/or been exhausted. [56.1] Consideration has been given to whether your case should be certified under regulation 24AA of the 2006 Regulations. [56.2] The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. [56.3] The Secretary of State does not consider that such a risk exists because you have spent the majority of your life in Romania and have only lived in the United Kingdom for six years. [56.4] Therefore it has been decided to certify your case under regulation 24AA.

[140]The position now is that what the Home Secretary decided in these two paragraphs has been overtaken by events. The interim injunction in the present case was still in place when the FTT dealt with X’s appeal. There was thus no opportunity for the Home Secretary to remove X under regulation 24AA prior to that appeal. Thus what was decided in those two paragraphs has had no adverse effect upon X. But that is only because an emergency application was made by X to this court, which gave it immediate priority. This ensured that a potentially unlawful removal did not take place. For reasons given below I conclude that what was said in those two paragraphs was indeed unlawful.

[141]X’s grounds for challenging what was done by the Home Secretary under regulation 24AA can be grouped into categories. The first was initially set out in paragraph 52 and 53 of X’s grounds, but was subsequently expanded. I deal with it in section E2 below. It concerns the approach taken on behalf of the Home Secretary to what was called the “real risk of serious irreversible harm” test. The next category concerns compliance with domestic law principles, and was initially set out in paragraph 59 of X’s grounds. It, too, was subsequently expanded. I deal with it in section E3 below. A third category, at paragraphs 56 to 58 of X’s grounds, alleged that what was done under regulation 24AA was contrary to the Home Secretary’s own policy. I deal with this in section E4 below.

[142]It will be apparent that in this analysis of X’s grounds I have omitted paragraphs 54 and 55. In those paragraphs X, drawing upon his second criticism of the test in regulation 24AA (see section D3 above), advanced contentions that article 27/regulation 21 constraints applied to decisions under regulation 24AA. For the reasons given in section D3 above, however, I do not examine those contentions in this judgment.

[143]I add that the Home Secretary advanced a submission that complaints about action under regulation 24AA and complaints about detention were impermissible because they were a collateral attack on the deportation decision. I reject that submission in relation to the particular complaints which I have found to be successful. Those complaints are based on common law principles, and are not concerned with the merits of the deportation decision.

E2. The “real risk of serious irreversible harm” test

[144]X’s initial complaint proceeded upon the implicit basis that if a test of “real risk of serious irreversible harm” were met, then certification under regulation 24AA would not be possible. On this basis it was said that the Home Secretary ought to have concluded that the test had a low threshold and was met.

[145]This complaint was expanded, without objection, in X’s skeleton argument. In reliance upon the Court of Appeal decision in Kiarie (see section D5 above) a new criticism was advanced that the only criterion applied in the two paragraphs cited above was the “real risk of serious irreversible harm” test, whereas the central criterion should have been whether X’s removal pending appeal would be unlawful under s 6 of the Human Rights Act 1998.

[146]For reasons given in section D5 above, the decision in Kiarie undoubtedly has the consequence that X’s new criticism is well-founded. As noted in section E1 above, I reject the Home Secretary’s “collateral attack” submission. It was not clear to me whether the Home Secretary sought to rely upon a submission that, in so far as a proportionality test applied to the central criterion, the consideration given to proportionality for the purpose of deportation would suffice to meet that test. I reject any such submission in this context: it fails to allow for considerations which may affect a pre-redress exclusion and may have a different operation in that context from their operation in relation to permanent exclusion.

[147]In Kiarie, however,the Court of Appeal held that, as regards Mr Kiarie, the decision would have been the same if the correct approach to section 94B had been adopted and account had been taken of the relevant material. For that reason the Court of Appeal refused to quash the decision in Mr Kiarie’s case. The Upper Tribunal, at paragraph 47 of the judgment in Masalskas, reached a similar conclusion on the facts of Mr Masalskas’s case.

[148]The Home Secretary urges that this court should reach the same conclusion in the present case by making its own assessment of what would have happened if the correct approach had been adopted. It is argued that the 20 April representations did not advance a claim that pre-redress exclusion would breach

article 3 ECHR

, and that while there would be an interference with rights under

article 8 ECHR

“to some extent” the balance was “firmly in favour of … interim removal”.

[149]In oral submissions the Home Secretary suggested that as part of this assessment the court should take account of additional material in the papers before the court. This additional material was said to be relevant to points that the Home Secretary sought to make against X concerning the manner in which X’s victim met his death, concerning non-disclosure by X of the murder conviction, and concerning non-disclosure by X of his alcoholism. I decline to allow the Home Secretary to rely on these points: X had no notice of them and has had no opportunity to deal with them.

[150]An assessment of this kind is inherently fact-sensitive. In X’s case it was said in the 20 April representations and accompanying documents that he was a recovering alcoholic, that he suffered from depression, anxiety and ARBI giving rise to impairment of his cognitive ability, that in Romania he had been homeless and had no income, that his strong ties with his local community here had enabled him to make the transition from a “previous life on the streets” to being able to show “extraordinary progress in managing his addiction and sorting out a new direction for his life”, and that it was “of paramount importance that his rehabilitation continues unhindered so as not to restrict his chances of successful and sustainable long term sobriety”.

[151]The lawyers then acting for X did not draw out as clearly as they might have done the stark contrast between excellent prospects in this country of long term recovery from alcoholism with the benefit of a strong support network here, and the risk that a return to destitution in Romania for the period prior to the hearing of an appeal would speedily undo all that had been achieved. Nevertheless that stark contrast was clearly discernable on the material submitted to the Home Secretary, as were its potential consequences for the purposes of

article 8 ECHR

. As to the balancing exercise, anxious scrutiny was required. I do not suggest that regulation 24AA can only be invoked where there is a particularly strong reason to certify. However, the factor to be balanced on the other side was not the normally very strong public interest in permanent exclusion relied upon as warranting deportation. It was a less strong, although still substantial and important, public interest in temporarily removing X. I cannot say that those acting for the Home Secretary, if they had properly understood their task, would inevitably have concluded that pre-redress exclusion of X would not be a breach of s 6 of the Human rights Act 1998.

[152]In those circumstances I hold that the failure to apply the correct test rendered unlawful the decision under regulation 24AA set out in the 23 April decision notice.

E3. Compliance with domestic law principles

[153]Paragraph 59 of X’s grounds stated: 59. … the claimant submits that the certification decision was Wednesbury irrational in domestic law. The certification decision was not justified by the risk posed by the Claimant. The Defendant failed to consider evidence as to the Claimant’s voluntary work with the Salvation Army, or to give any weight to the Claimant’s lack of offending in the UK. It is difficult to see how it could be rational to deport the Claimant for the short period until his Tribunal appeal, in circumstances where he has a strong appeal and poses no risk in the UK.

[154]This domestic law claim was not addressed in the Home Secretary’s skeleton argument. In the event I do not consider that it was necessary to do so: once the significance of Kiarie was appreciated, the real question in the present case became whether those acting for the Home Secretary, applying the right test, would inevitably have reached the same conclusion. Once that question has been answered in the negative there is no practical value in seeking to determine what could or could not reasonably have been done had the right test been applied.

[155]The oral submissions for X referred to the domestic law duty to inquire. In response it was submitted for the Home Secretary that the decision maker can assume that those making representations will refer to all relevant material. I was not, however, taken to relevant case law on this aspect and for that reason I decline to examine it further.

E4. Compliance with the Home Secretary’s policy

[156]X said at paragraph 56 of his grounds: 56. … certification of the Claimant’s case was contrary to the Defendant’s own published policy. The policy guidance indicates that certification should not be applied where an individual has acquired a right of permanent residence and has not been sentenced to a period of imprisonment of at least four years.

[157]It is apparent that this complaint could only arise if X had acquired a right of permanent residence. So far as relevant for present purposes, regulation 15 provides that those who acquire the right to reside in the UK permanently include: (a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years.

[158]The corresponding provision in the Citizens Directive is in article 16, which provides: Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there.

[159]X asserts that during the period from April 2014 onwards he was a person who had resided in the UK for a continuous period of at least 5 years. On this basis he claims to be a person with a permanent right of residence under regulation 15, and to be accordingly entitled to the benefit of regulation 21(3).

[160]In response to X, the Home Secretary made a submission as to forum. This was that it was for the FTT, and not for this court, to decide whether X had the status of a person with a right of permanent residence. As to that, it is now known that the FTT has concluded that X did not have that status. As I have reached the same substantive conclusion it is unnecessary for me to deal with the submission as to forum.

[161]In reaching my substantive conclusion, I note that the wording in regulation 15 differs from that in article 16. Both refer to the person in question having “resided” for a continuous period of five years. Both qualify the word “resided”. The regulation speaks of the person having resided “in accordance with these Regulations”. The directive simply speaks of the person having resided “legally”. In the present circumstances nothing turns on this distinction. Under the directive, during the period up to and including 31 December 2013 X resided here “legally” only if he complied with the transitional scheme. Under the regulation, the Home Secretary would accept that X resided here “in accordance with these Regulations” if he complied with the transitional scheme.

[162]X’s difficulty is that he did not comply with the transitional scheme. He needed permission to work and, as a matter of record, he did not have that permission. It is not suggested by him that what his employer told him can suffice as proof that he had received permission to work.

[163]X seeks to escape from this difficulty by relying on the decision of the Court of Justice in Lassal

[2011] 1 CMLR 31

. There the Court of Justice held that it would be wrong to interpret the 5 year period of residence as applying only to periods after the coming into force of the directive. In Ziolkowski

[2011] ECR I-14035

the Court of Justice applied this principle to periods prior to accession of the state of nationality. The points decided in those cases do not arise in the present case. Moreover, nothing in the either of those cases has any bearing on the UK’s undoubted entitlement to put in place the transitional scheme, and to insist that X comply with it.

[164]For these reasons I conclude that X has not established that he is entitled to the status of a person with a right of permanent residence. It necessarily follows that X cannot succeed in his complaint set out at paragraph 56 of his grounds. F. Complaints about detention

F1. Detention: introduction

[165]X seeks, among other things:(1) A declaration that he has been unlawfully detained since 23 March 2015;

(2) Damages, including aggravated damages;

[166]There were three successive stages of detention. The first stage began when the police took X to the police station. It ended, and the second stage began, on 24 March when a Home Office official gave X the 20 March notice and the 24 March letter (section C 4.3 above). The second stage ended, and the third stage began when, on 23 April 2015, the Home Secretary authorised X’s detention under regulation 24(3) and paragraph 2(3) of schedule 3 to the Immigration Act 1971 (section C4.6 above). It ended when X was released on 23 July 2015.

[167]In sections F2 and F3 below I examine, as regards the second and third stages of detention, a central feature of the Home Secretary’s claim of entitlement to detain. This central feature is that the Home Secretary had reasonable grounds for detention. For reasons given in those sections, I conclude that X has demonstrated that no such reasonable grounds existed, and that X is accordingly entitled to damages and to the declaration which he seeks. In those circumstances it is unnecessary, and undesirable, in this judgment to examine other questions which were canvassed in submissions. The parties’ written submissions lead me to think that answers to some of those questions may depend upon the extent to which relevant reasoning in the Court of Appeal decision in Nouazli (see section A2.3 above) has been overtaken by what is said in the judgments in the Supreme Court in that case. Moreover, the answers to those questions may have important wider consequences, for example as to whether there may be a right of appeal against detention(1) if detention is, in itself, an EEA decision, or

(2) because it is ancillary to an EEA decision. I would wish to hear oral argument if it were necessary to decide those questions.

[168]In section F4 below I consider the first stage of detention. For reasons given in that section I accept X’s submission that detention in police custody overnight on 23 March 2016 was unlawful, and that the Home Secretary is liable for that unlawful detention.

F2. Stage 2: 24 March to 23 April 2015

[169]X’s detention during this period was purportedly justified under regulation 24(1). It follows that two questions arise. The first is a threshold question: on its own terms, regulation 24(1) could lawfully have been invoked only if there were “reasonable grounds for suspecting” that X was a person “who may be removed … under regulation 19(3)(b)”. It was urged on behalf of X that the threshold was not satisfied. As to this, there were unsatisfactory features in the documentation:(1) The notices prepared in November and December 2014, and the 20 March notice, all said at [4] that “full account” had been taken of X’s immigration status, yet at [5] they said it was not known if he had been exercising treaty rights – apparently in ignorance of his student registration under the transitional scheme. (See sections C3 and C4.1 above.)

(2) The same notices said at [14] that the power to detain arose because X was “liable to deportation under regulation 19(3)(b)”, ignoring the need under regulation 24(1) for there to be “reasonable grounds for suspecting” as set out above. (See sections C3 and C4.1 above.)

(3) The signed IS.91 did not describe X as a person in respect of whom there were “reasonable grounds for suspecting” as set out above. It said only that he was a person in respect of whom the Home Secretary “is considering whether there may be reasonable grounds for suspecting …” (See section C4.1 above.)

(4) The same occurred at [1.2] of the 24 March letter. (See section C4.3 above.)

(5) The 24 March letter at [3.1] said inaccurately that detention was justified under regulation 19(3)(b), and at [3.2] said – also inaccurately – that it followed from this that regulation 24(1) applied. (See section C4.3 above.)

[170]Despite this catalogue of errors, I am satisfied that the material transmitted on behalf of the Home Secretary to X at the time disclosed reasonable grounds for suspecting that X was a person “who may be removed … under regulation 19(3)(b)”. The Home Secretary’s policy at the time was that removal under regulation 19(3)(b) would normally be appropriate where commission of a crime had led to a sentence of at least 4 years imprisonment. As was pointed out in the 24 March letter (section C4.3 above) at [6.2] and [6.3], X’s conviction for murder led to a 12 year sentence. The question whether it would nevertheless be right to remove X had not been finally determined. Pending that determination, the length of X’s sentence gave reasonable grounds to suspect that X was a person “who may be removed … under regulation 19(3)(b)”.

[171]Accordingly there was power to detain X on 24 March 2015, in the sense that the threshold under regulation 24(1) was met. It does not follow, however, that it was lawful to invoke regulation 24(1). In particular, X’s skeleton argument forcefully maintained a complaint that at common law X’s detention was throughout unlawful because it was “unnecessary and wholly unjustified”. The second question which arises is whether, as regards stage 2 of detention, this common law complaint is justified.

[172]In relation to detention, the Home Secretary asserts that the risks of absconding and re-offending are of critical and paramount importance. I agree. I would reject X’s common law complaint in relation to stage 2 if the reasons for detention, as communicated during that stage to him on behalf of the Home Secretary, gave a rational basis for concluding that detention was justified by one or other or both of the risk of re-offending or the risk of absconding. However, it appears to me that X is right to contend that those reasons do not withstand scrutiny.

[173]As regards re-offending, the 24 March letter asserted at [5.4] that “Your release carries a high risk of public harm”. At [5.5] it asserted that “There is a risk of further re-offending”. It is apparent that these assertions are linked: the public harm contemplated in [5.4] was harm arising from the “further re-offending” referred to in [5.5].

[174]The reasons said to justify these assertions are set out in the paragraph which I have numbered [6.0], especially at [6.2] to [6.5]. They boil down to one reason only: X had been convicted of murder and had been sentenced to 12 years’ imprisonment. At [6.2] this single reason was relied on to justify an assertion that X had shown a lack of respect for Romanian law. At [6.3] it was relied on to justify an assessment that X posed a risk of serious harm to the public. At [6.4] it was relied on to justify an assertion that there was a significant risk that X would re-offend. At [6.5] it was relied on as demonstrating unacceptable conduct.

[175]I have no difficulty in accepting that if X were in future to commit the crime of murder as he had done in the past then the resultant harm would be grave. To that extent there is one aspect of the reason given at [6.3] that cannot be criticised. As to that aspect, it is an undoubted fact that the harm, if X were to re-offend in that way, would be very serious. That fact, however, of itself offers no justification for a conclusion that there was a real risk that X would re-offend either in that way, or indeed in any other way. Nor did any of the other matters set out in paragraph [6.0] offer any such justification.

[176]Turning to the risk of absconding, the 24 March letter asserted at [5.1] that he was being detained in order to “effect removal from the United Kingdom”. At [5.2] it asserted that “You are likely to abscond if given temporary admission or release.” At [5.3] it asserted that “There is insufficient reliable information to decide whether to grant you temporary admission or release.”

[177]In this part of paragraph [5.0] the 24 March letter refers to “temporary admission or release”. These are matters which go hand in hand because the Home Secretary took the view that if X were not detained then his status would need to be put in order by the grant of temporary admission. There is no doubt that temporary admission could in principle be on conditions designed to guard against any risk of absconding.

[178]If there were good reason to doubt that X would comply with such conditions then that might well lead to the conclusion that he was, as stated in [5.2], likely to abscond. In any event a conclusion that X was likely to abscond would, if justified, plainly warrant refusal of temporary admission or release. In that regard, it is difficult to understand, simply in terms of what is said in paragraph [5.0], how it was that such a conclusion had been reached. On the face of it, such a conclusion would be incompatible with the assertion in [5.3] that there was “insufficient reliable information to decide whether to grant temporary admission or release”.

[179]As with risk of re-offending, in relation to the risk of absconding the reader has to turn to paragraph [6.0] to find the basis on which this was considered to be a matter justifying detention. In that paragraph, in addition to [6.2] to [6.5] as set out above, the 24 March letter said at [6.1]: You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place. You have not provided information as to whether you have friends or family in the United Kingdom.

[180]Here, too, what is said boils down to one reason only: an assessment that X did not have enough close ties to make it likely that he would stay in one place. The assumption seems to be that without close ties he would not comply with a condition requiring him to stay in one place. But nothing is identified, in relation to X’s past conduct or present circumstances, that would justify such an assumption. In these circumstances I cannot accept that what is said in the 24 March letter identified a lawful basis for concluding that there was a real risk of absconding.

[181]I add that there is a separate reason for holding that the Home Secretary’s conclusion as to a risk of absconding had no lawful basis. As noted earlier, it is founded on an assessment that X did not have enough close ties to make it likely that he would stay in one place. The only explanation for that assessment is in the second sentence of [6.1]. This curiously worded sentence relies on a failure on the part of X to provide information. It gives no explanation about when and where X was ever asked to provide that information. This is too slender a basis upon which to justify a conclusion that there was a risk of absconding.

[182]There are two general points to mention. First, the Home Secretary filed no witness evidence. Oral submissions for the Home Secretary responded to complaints in that regard by assuring the court that the Home Secretary relied on the reasons that were given at the time. Subsequent written submissions for the Home Secretary, however, appear to have departed from this, for they sought to rely upon the additional matters that I have described in section E2 above. As to that, I decline to allow such reliance for the reasons given in that section.

[183]Second, if it were permissible to go beyond the reasons in the 24 March letter, I note that:(1) the completed form IS.91RA referred to medical “problems/concerns”, stating that X had said that he had been alcohol free since 7 April 2014 and that he suffered from depression; and

(2) there were observations in the 24 March detention authorisation (see section C4.2 above) which stated that X had vacated his last known address 6 months previously.

[184]I do not consider that either of those matters, as referred to at the time, would justify any conclusion that there was a real risk of re-offending or absconding.

[185]It is not suggested by the Home Secretary that the position changed in any relevant respect during stage 2 of detention. Accordingly I conclude that the Home Secretary’s reasons for detention at the start of, and throughout, stage 2 provided no tenable basis for concluding that detention was justifiable, with the consequence that X’s detention during that period was unlawful.

F3. Stage 3: 23 April to 23 July 2015

[186]On 23 April 2015 there was a change to the power under which X was detained. It came about because on that day the deportation order was made, and thus the power to detain X arose under regulation 24(3) rather than regulation 24(1). No threshold question arises in relation to that power. However the second question in section F2 above continues to arise at common law: is X right to say that no sufficient basis was identified which could be capable of justifying detention during stage 3?

[187]In that regard the 23 April detention authorisation (see section C4.6 above) stated that the Home Secretary authorised X to be detained until he was removed from the United Kingdom. However it gave no reasons for taking that course. Reasons were, however, set out in the 24 April detention review. I shall proceed on the basis that they can be treated as setting out what would have been said if reasons had been given for the 23 April detention authorisation.

[188]It is apparent from the 24 April detention review (see section C4.7 above) that it rightly proceeded on the basis that the detention of X could only be justified if detention were required to guard against the danger that X might re-offend or abscond during the period prior to his removal. As to the risk of re-offending, using the reference numbers given in section C4.7 above:(1) Paragraph [19.2] noted that X’s risk of re-offending was assessed as low. The last sentence of paragraph [19.2], however, added a qualification: It is noted that X is a recovering alcoholic and this is a factor that may heighten his risk to offend.

(2) This qualification appears to me to be illogical. It noted that X had been an alcoholic. During his period as an alcoholic there had been no re-offending. He was now a recovering alcoholic. I cannot discern any rational basis for thinking that the fact that he was now recovering from alcoholism was a factor that may heighten the risk of re-offending.

(3) I recognise that X’s conviction was for an offence of murder. The seriousness of that offence might be such that even a low risk of re-offending could justify a decision to detain. But it is elementary that a conclusion to that effect cannot be reached merely from the fact of the past conviction. It is necessary to have regard to the period which has passed since the offence was committed, to the conduct of X during that period, and to factors which tend to reduce the risk of re-offending.

(4) In X’s case a period of more than 24 years had passed since the offence was committed. The Home Office knew of nothing in his conduct during that period to suggest that there was any risk of re-offending. Moreover, the 20 April representations and the accompanying letters from Mr B and Lt C described conduct on X’s part which suggested that the risk of re-offending was very low indeed.

[189]As to the risk of absconding:(1) Paragraph [19.3] of the authorising officer’s reasons began with an assertion that X has no strong ties in the UK. The assertion is inconsistent with what is said in the 20 April representations and in Lt C’s letter. No justification has been given by the Home Secretary in this case for ignoring the details that were given of all that X had done to establish strong links with his community, in particular as part of the process of recovering from alcoholism, and close ties with that community, in particular his “family” in the Salvation Army.

(2) The authorising officer added that X had no one who could exert “influence on him”. The assumption seems to be that X would only comply with temporary release/ bail conditions if someone could be relied upon to exert influence to stop him from absconding. Nothing in the material known to the Home Office warranted such an assumption. Even if such an assumption were warranted, however, there was ample evidence that X had responded positively to the influence of others when taking steps in order to engage in his rehabilitation programme, in order to further his education, skills and qualifications, and in order to become an active and committed member of his church.

(3) The second sentence of paragraph [19.3] said: Whilst in the UK he was admitted into a residential home for vulnerable males with complex needs, due to his vulnerability this should be considered as a factor in his risk to abscond.

(4) The implication appears to be that because X was vulnerable with complex needs there would be an increased risk of absconding. The material supplied to the Home Office, however, suggests the reverse. Far from increasing any risk of absconding the “intensive extensive treatment” at CH had played a vital part in enabling X to integrate into British society.

[190]The 14 May supplementary letter (see sub-paragraph (4) in section C5.2) added nothing of substance to what was said in the 24 April detention review. Nor did the letter of 19 May (section C5.3 above), the 22 May detention review (section C5.4 above), the 17 June monthly progress report (section C5.5 above), the 18 June detention review (section C5.6 above) and the 16 July detention review and monthly progress report (section C5.7 above).

[191]Accordingly I conclude that throughout stage 3 there was no reasonable basis for a conclusion that risks of re-offending and of absconding could justify detention of X. It follows that throughout stage 3 his detention was unlawful.

F4. Stage 1 of detention on 23 March 2016

[192]It was submitted on behalf of X that his detention by the police on 23 March was at the behest of the Home Office and could only have been carried out under immigration powers. Submissions for the Home Secretary sought to answer this by saying that the detention had taken place under the Police and Criminal Evidence Act 1984 (“PACE”), and that any complaint in that regard must be taken up with the police.

[193]The reference to X being detained under PACE is found in the Home Office case record sheet. An entry for 23 March 2015 stated: [X] has been arrested on behalf of the Home Office. … Police are happy to keep subject under PACE until [tomorrow morning]

[194]In my view it is clear from this entry that when arresting X the police were acting on behalf of the Home Office. They had no other reason for arresting him. The same applies to his detention overnight. In this regard it is immaterial whether the police had power under PACE to take this course. What is clear is that it was a course that was undertaken on behalf of the Home Office. I need not enquire as to what, if any, formal power entitled the Home Office to take this course. To the extent that the Home Office may have had formal power to do so, for the reasons given in section F2 above, there was no reasonable basis for instigating X’s detention. G. Conclusion

[195]For the reasons given above I conclude that the policy in force in April 2015 concerning the exercise of power under regulation 24AA was unlawful, that the certification by the Home Secretary under that regulation was unlawful, and that X’s detention during the period 23 March to 23 July 2015 inclusive constituted an unlawful detention for which the Home Office is responsible. In relation to certification and detention, I do not accept the Home Secretary’s contentions that if those responsible had acted on a proper understanding of the law they would have reached the same decision. I ask counsel to seek to agree appropriate consequential orders.

X, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1997 (Admin)

A1. X and his two sets of proceedings

A1.2 First proceedings: appeal to the FTT against deportation

A1.3 Second proceedings: the present judicial review claim

A2. The judicial review claim in more detail

A2.2 Acknowledgement of service & permission to proceed

A2.3 Subsequent steps in the judicial review claim

A2.4 Overview of this judgment, & outcome of the claim

B1. The Citizens Directive

B2. The EEA Regulations up to 28 July 2014

(b) …

B3. The EEA Regulations from 28 July 2014 onwards

C1. Events in Romania prior to 2007

C2. Events 1 Jan 2007 to 27 July 2014

C3. Events 28 July 2014 to 19 March 2015

C4. Events 19 March to 11 May 2015

C4.2 The 24 March detention authorisation

C4.3 Form IS.91RA and the 24 March letter

[5.0] It has been decided that you should be detained:

C4.4 The 20 April representations

C4.5 The 23 April decision notice

C4.6 The 23 April deportation order & detention authorisation

C4.7 The 24 April detention review

[18.5] Maintain detention?

C4.8 Events 5 to 10 May inclusive

C5. Events 11 May 2015 to the end of August 2015

C5.2 The 14 May supplementary letter

C5.3 The grant of the stay, and letters of 18 & 19 May 2015

C5.4 The 22 May detention review

C5.5 The 17 June monthly progress report

C5.6 Permission to proceed, and the 18 June detention review

C5.7 The 16 July detention review and monthly progress report

C5.8 Grant of bail on 21 July

C5.9 The 23 July notice of restriction

C6. Events from September 2015 onwards

C6.2 The Home Secretary’s application for permission to appeal

D1. EEA Regulations & written policy: introduction

D2. Reg 24 AA: The reasons complaint

D3. Reg 24AA: proportionality/unlawful test complaints

D4. Reg 24AA: the effective remedy complaint

Justice of the European Union in Case C-249/13 Khaled Boudjlida at [43]:

D5. The blanket policy complaint

D6. Travel costs policy complaint

D7. Unlawful policy considerations

E1. Pre-redress exclusion of X: introduction

E2. The “real risk of serious irreversible harm” test

E3. Compliance with domestic law principles

E4. Compliance with the Home Secretary’s policy

F1. Detention: introduction

F2. Stage 2: 24 March to 23 April 2015

F3. Stage 3: 23 April to 23 July 2015

F4. Stage 1 of detention on 23 March 2016

Cited in 3 later judgments