Connell, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 100 (Admin)

“Article 27 General Principles 1. Subject to the provisions of this chapter Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds may not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted …. Article 28 Protection against Expulsion 1. Before taking an expulsion decision on grounds of public policy or public security the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin….”

“2. — General implementation of Treaties. (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “ enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies. (2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme , make provision— (a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid. …” (a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid. …”

“Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if–” … (b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21;…”

“Decisions taken on public policy, public security and public health grounds (1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health. (2) A relevant decision may not be taken to serve economic ends. (3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security. (4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who— (a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or (b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989. (5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles— (a) the decision must comply with the principle of proportionality; (b) the decision must be based exclusively on the personal conduct of the person concerned; (c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; (e) a person's previous criminal convictions do not in themselves justify the decision. (6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin…” (a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or (b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989. (a) the decision must comply with the principle of proportionality; (b) the decision must be based exclusively on the personal conduct of the person concerned; (c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; (e) a person's previous criminal convictions do not in themselves justify the decision.

“(3) Where a decision is taken to remove a person under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.”

“(6) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, a deportation order is not to be made against him under section 5 of the 1971 Act while the appeal is pending.”

“A person who is not a British citizen is liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good; or…”

“(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. … (5) The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.”

“32 Automatic deportation (1) In this section “foreign criminal” means a person– (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (3) Condition 2 is that– (a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and (b) the person is sentenced to a period of imprisonment. (4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). (6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless– (a) he thinks that an exception under section 33 applies, (b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or (c) section 34(4) applies. (7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.”

“Exceptions (1) Section 32(4) and (5)… (a) do not apply where an exception in this section applies (subject to subsection (7) below), …. (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach– (a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention. (3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction. (4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties. (5) Exception 4 is where the foreign criminal– (a) is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41), (b) is in custody pursuant to arrest under section 5 of that Act, (c) is the subject of a provisional warrant under section 73 of that Act, (d) is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or (e) is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act. (6) Exception 5 is where any of the following has effect in respect of the foreign criminal– (a) a hospital order or guardianship order under section 37 of the Mental Health Act 1983 (c. 20), (b) a hospital direction under section 45A of that Act, (c) a transfer direction under section 47 of that Act, (d) a compulsion order under section 57A of the Criminal Procedure (Scotland) Act 1995 (c. 46), (e) a guardianship order under section 58 of that Act, (f) a hospital direction under section 59A of that Act, (g) a transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or (h) an order or direction under a provision which corresponds to a provision specified in paragraphs (a) to (g) and which has effect in relation to Northern Ireland. (6A) Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16th May 2005). (7) The application of an exception– (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4.”

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

“…It is rare that Irish FNO cases will be considered exceptional enough to merit deportation. Irish nationality does not however provide automatic exemption from deportation regardless of individual circumstances. As a guide deportation is still considered if an offence involves national security matters or crimes that pose a serious risk to the safety of the public or a section of the public. For example, a person convicted and serving a custodial sentence of 10 years or more for: • A terrorism offence • Murder • A serious sexual or violent offence If a decision is taken to deport an Irish national under the (2006 Regulations), the case is dealt with in line with other EEA deportations and treated as if the decision was taken under section 3(5)(a) of the (1971 Act) on the grounds that their presence is not conducive to the public good. Deportation of Irish nationals is only in the public interest in exceptional circumstances. …”

“Deterrence and public revulsion 11 It is convenient to consider first the extent to which wider factors, such as the public interest in deterrence and the need to demonstrate public revulsion at the offender's conduct, are factors that can properly be taken into account when deciding whether the removal of an EEA national who has acquired a permanent right of residence is justified on serious grounds of public policy or public security. RU (Bangladesh), on which Ms Chan placed some emphasis, was a case involving the deportation of a foreign criminal under section 32 of the 2007 Act. In such cases the statutory scheme envisages that the person facing deportation bears the burden of showing that his removal would not be in accordance with the law, usually because of the interference with his fundamental rights that it would entail. In such a case it is well established that the need to deter other potential wrongdoers and to reflect public revulsion at the offence in question are aspects of the public interest in deportation and as such are important factors for the decision-maker to take into account. Ms Chan submitted that they are equally important in a case falling within regulation 21 . In my view, however, that fails to recognise the very different context in which the question of deportation arises. 12 One important purpose of the Citizenship Directive was to protect and support the treaty right of free movement of nationals of member states and, by extension, nationals of other EEA states. The origin and purpose of the Regulations are, therefore, both fundamentally different from those of section 32 of the 2007 Act, which is directed to removing from this country aliens who have no right to be here other than in accordance with leave to remain granted by the Secretary of State. Leaving aside whatever protection against removal the European Convention may afford them, their position in law is inherently less secure than that of EEA nationals who are entitled to exercise treaty rights. In a case where the removal of an EEA national would prima facie interfere with the exercise of his treaty rights it is for the member state to justify its action. It is for this reason that I am unable to accept Ms Chan's submission that in a case of the present kind the burden of showing that the decision is not in accordance with the law lies on the person who is to be deported. … 14 Regulation 21(5)(b)(d) provides that a decision to remove an EEA national who enjoys a permanent right of residence must be based exclusively on the personal conduct of the person concerned and that matters that do not directly relate to the particular case or which relate to considerations of general prevention do not justify a decision to remove him. On the face of it, therefore, deterrence, in the sense of measures designed to deter others from committing similar offences, has of itself no part to play in a decision to remove the individual offender. Similarly, it is difficult to see how a desire to reflect public revulsion at the particular offence can properly have any part to play, save, perhaps, in exceptionally serious cases. As far as deterrence is concerned, the CJEU has held as much in the Bonsignore case. … 20 … The authorities to which I have referred support the general proposition that great importance is to be attached to the right of free movement which can be interfered with only in cases where the offender represents a serious threat to some aspect of public policy or public security. Save in exceptional cases, that is to be determined solely by reference to the conduct of the offender (no doubt viewed in the context of any previous offending) and the likelihood of re-offending. General considerations of deterrence and public revulsion normally have no part to play in the matter. In these respects the principles governing the deportation of foreign criminals in general differ significantly from those which govern the deportation of EEA nationals who have acquired a permanent right of residence. … 24 … It would therefore be unwise, in my view, to attempt to lay down guidelines. In the end, the Secretary of State must give effect to the Regulations, which themselves must be interpreted against the background of the right of free movement and the need to ensure that derogations from it are construed strictly.”

“59 It seems to me that this case pivots on the true construction of reg.24(3) of the EEA Regulations . Other provisions may serve to illuminate the correct interpretation of that provision, but reg.24(3) is both the starting point and the end point of the inquiry. 60 The defendant might have achieved her policy objectives in relation to EEA nationals by pursuing one of three possible routes. First, she might have carved out special rules for EEA nationals in the Immigration Act 1971. Such rules would have made clear, for example, that the criteria for removal were different, and narrower, in EEA cases. Secondly, she might have created a wholly self-contained regime for EEA nationals which did not rely on the Immigration Act 1971 at all. For such a regime to operate, the defendant would have had to build into the EEA Regulations a web of decision-making and coercive powers which broadly matched ss.3 and 5 of, and Sch.3 to, the Immigration Act 1971 . To the extent that primary legislation might have been necessary for this purpose, the defendant could have relied on s.2(4) of the 1972 Act. Thirdly, she might have created a form of hybrid between the first and two routes: in other words, the promulgation of a separate set of subordinate legislation which relied to some extent on pre-existing statutory powers. 61 The defendant chose the third of these routes. She clearly intended to establish a separate regime for EEA nationals, but at the same time she did not intend to re-invent the wheel. Statutory powers were available and could be deployed. 62 The present difficulty arises because of the manner in which reg.24(3) has chosen to refer to the pre-existing statutory provisions. 63 If the draftsperson had said words clearly to the effect that a decision under the EEA Regulations is always to be treated as if it were a decision under the relevant provisions of the Immigration Act 1971 , then Mr Toal’s argument would face no apparent difficulties. On the facts of these cases, the decision under the EEA Regulations would be deemed to be a decision under s.5(2) of the Immigration Act 1972 . That would bring s.82(2)(k) into play, because it uses the preposition “under” in the context of s.5(2) . 64 But the draftsperson has not used words quite to that effect. Instead, reg.24(3) provides that the removal decision is made under reg.19(3)(b), which is the operative provision governing the liability to deportation of EEA nationals. Regulation 21 identifies the conditions which fall to be satisfied, in the defendant’s assessment, before the deportation power may be exercised. Furthermore, the draftsperson has provided that the specified provisions of the Immigration Act 1971 apply “accordingly”. 65 Where such a deportation decision is made, the person the target of that decision is treated by virtue of reg.24(3) as if he were a person to whom s.3(5)(a) of the 1971 Act applied. The reason why reg.24(3) is phrased as it is seems clear. The defendant did not wish to follow the second of the three routes I have identified. That would have been overkill. But, the defendant needed to make clear that persons who were the subject of EEA deportation decisions should be regarded as being persons liable to deportation for the purposes of s.3(5)(a) of the Immigration Act 1971, even if the grounds on which the discretion to deport is exercised are very different in an EEA case. That in itself would achieve next to nothing, but the real reason for treating these persons in this way is disclosed by focusing on the clause succeeding the final comma in reg.24(3). To the extent that such provisions were not inserted into the EEA Regulations, the defendant needed to bring these persons within the procedural and supplementary provisions of s.5 of, and Sch.3 to, the 1971 Act. Section 5 contains a series of procedural provisions which the defendant would sensibly wish to apply to EEA nationals. These have nothing to do with the substance of the defendant’s decision-making, but everything to do with the consequences of it. Likewise, the defendant requires the machinery laid down in Sch.3 to detain EEA nationals and to effect their removal.

“70 Is this a special, distinct category for the purposes of the EEA Regulations? My provisional view, when reading the papers and persisting during the course of the oral argument, was that this was the case. Ultimately, however, I cannot embrace Mr Dunlop’s alternative submission on this point. Although the criteria governing the making of deportation orders in an EEA case are very different from the “standard” case catered for in very general terms by s.5 of the Immigration Act 1971 , it scarcely follows that EEA deportation orders constitute some form of distinct category. The correct analysis is that EEA deportation orders form a sub-set, or species, of the general category, or genus, of deportation order covered by s.5(1) . 71 It follows that I am not prepared to construe s.82(2)(k) in such a way that revocation decisions described as having being made under s.5(2) of the Immigration Act 1971 by virtue of reg.24(3) are somehow outside its statutory scope.”

“In our judgment, since the 2007 Act came into force it is no longer appropriate for a court to recommend the deportation of a “foreign criminal” as defined in section 32 of the 2007 Act. This is so for two reasons. (i) No useful purpose would be served by doing so. The Secretary of State is obliged by section 32(5) of the 2007 Act to make a deportation order unless one or more of the exceptions specified in section 33 of the 2007 Act applies, and it is for the Secretary of State to decide whether any of those exceptions does apply. (ii) Although section 32 of the 2007 Act does not expressly prevent the court from recommending the deportation of a “foreign criminal” it does expressly remove any need for the court to do so. To explain this, it is necessary to turn to the Immigration Act 1971. The power of the Secretary of State to order the deportation of a person who is not a British citizen derives from section 5(1) of that Act. This provides that “where a person is under section 3(5) or (6) above liable to deportation … the Secretary of State may make a deportation order against him …”

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

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

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

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

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

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

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

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

“1. There is no appeal from the board's determination of the amount of compensation. 2. In making that determination the board is carrying out a judicial function. 3. The board is susceptible to judicial review. 4. The procedure provided for by the code, that is to say the provision of a recommendation without reasons, is insufficient to achieve justice. 5. There is no statute which requires the courts to tolerate that unfairness. 6. The giving of short reasons would not frustrate the apparent purpose of the code. 7. It is not a case where the giving of reasons would be harmful to the public interest. These considerations drive me to the view that this is a case where the board should have given reasons and I would, therefore, dismiss the appeal.”

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

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

“44 In my view, the two fundamental problems with this approach and the entire application are that firstly it assumes the applicant has a legally enforceable right to removal/deportation and secondly that the legal basis of the restriction of his right to return to the Republic of Ireland is a decision of the Home Office. 45 In relation to the first point deportation/removal is in fact a restriction on a person's right of movement. It is something imposed by the state in the public interest. It is for this reason of course that the process and procedure provides for safeguards by way of appeals. Decisions to deport/remove are also subject to challenge by way of judicial review. It may well be the case that a person can consent to an order if imposed but I do not believe that an applicant can simply insist upon removal/deportation on a voluntary basis. Of course this is why there is no mechanism for an appeal when the Home Office as in this case has decided that it is not in the public interest to deport or remove the applicant. In my view this should also extend to any judicial review of such a “decision”. 46 In relation to the second, and perhaps more important point, the applicant fails to focus or identify the true legal basis for any restriction on his movement. The reason why the applicant is not free to return to the Republic of Ireland and why there may be an interference with his Article 8/Article 7 rights is that he is subject to a lawful sentence imposed by the courts in this jurisdiction. Of course that decision could not reasonably be challenged by way of judicial review as any interference arising from this sentence would clearly meet the test of being in accordance with law and necessary in a democratic society in pursuance of a legitimate aim. Any restriction arising from the sentence would clearly be proportionate. Indeed, I note that within the supervision being exercised by the Probation Service, the applicant has been able to visit his partner on a number of occasions and it may well be the case that this will increase as he comes near the end of his licence. Thus it appears that his Article 8 rights are clearly being taken into account by the Probation Service. Analysed properly it seems to me that this is the basis for the restriction on the applicant's movement and not the failure to deport/remove him under the immigration regime.”