“Between21 November 2015 , when the Claimant was 15 years old, and6 March 2018 , he was convicted on five occasions for 12 offences: i) On21 November 2015 at Manchester and Salford Juvenile Court, he was convicted of possession of an article with a blade/sharp point on school premises. For that offence, on26 November 2015 , he was made subject to a 9-month referral order. ii) On7 July 2016 at Greater Manchester Juvenile Court, he was convicted of criminal damage and battery. For those offences, on28 July 2016 , he was given a 12-month youth rehabilitation order, with a supervision requirement and an electronically-monitored curfew requirement. He was also ordered to pay compensation of£250 and made subject to a 12month restraining order. iii) On1 September 2016 at Greater Manchester Juvenile Court, he was convicted of attempted robbery. For that offence, on22 September 2016 , he was made subject to an 18-month Detention and Training Order ("DTO"), which was subsequently varied on appeal to a 12-month DTO. He was also ordered to pay compensation of£250 . iv) On12 June 2017 at Greater Manchester Juvenile Court he was convicted of failing to comply with the DTO resulting from his conviction on1 September 2016 . He was fined£30 . v) On6 March 2018 at Greater Manchester Juvenile Court he was convicted of six counts of robbery and remanded in youth detention accommodation, until he was sentenced on27 March 2018 to [a] 12-month DTO.”
“This notice informs you that the Home Office is considering whether to make a deportation decision against you in accordance with theImmigration (European Economic Area) Regulations 2016 (“theEEA Regulations 2016 ”). What this means for you This means that if the Home Office decides to make a deportation decision against you, you will be served a deportation order and removed from the UK to Portugal. The deportation order will prohibit you from re-entering the UK indefinitely or for the period specified in the order unless you successfully apply to have it revoked. As there are reasonable grounds to suspect that you are someone who may be deported from the UK under theEEA Regulations 2016 then you may be detained in immigration detention pending the deportation decision. … [There were then set out reasons for considering that the Claimant may be liable for deportation on grounds of public policy and/or public security referring to his criminal history. It then added “As set out in Schedule 1 to theEEA Regulations 2016 removing an EEA national or their family member with a criminal conviction, protecting the public and combating the effects of persistent offending are considered to be in the fundamental interests of society in the UK. Therefore, as a result of your behaviour a deportation decision may be made against you under regulation 23(6)(b) in accordance with regulation 27”] … Next steps The Home Office will not make a deportation decision against you based on your criminal conduct alone and will consider any information or evidence you provide to ensure that the decision is in accordance with the principles set out in regulation 27. You must inform the Home Office of any reasons why you should not be deported from the UK. Part 3 of this notice explains what information and evidence you may wish to submit. Any information you wish to provide must reach the Home Office before the deadline stated below, failure to meet this deadline may mean that the information will not be considered as part of the deportation decision. [The deadline was 20 working days from the date of service, which would have been by the end of Friday14 September 2020 , excluding August Bank Holiday Monday]. You will not have another opportunity to tell us why you should not be deported before a deportation decision is made so you must ensure that you provide any relevant information before this date. Consideration will be given to any evidence and information you provide as part of the decision whether to deport you. If you do not provide the Home Office with any information as to why you should not be deported we will make a decision using the information available to us. We will inform you in due course whether or not the Home Office has decided to deport you. What this means for you Next steps (2) There was also a deportation one-stop notice which stated: “The Home Office will give more weight to claims substantiated by original documentary evidence from official sources to support your reasons and therefore it is in your interest to provide any evidence you have or can obtain. If you cannot provide such evidence you must explain why. This is so that we can consider the credibility of any claims you submit and make a decision about whether you are entitled to remain in the United Kingdom. Less weight will normally be given to claims which are not supported by original documentary evidence. If you do not reply, the Home Office will make a deportation order against you and you will be deported from the United Kingdom.”
“[6] I was serving my sentence in Wetherby Young Offenders Institute (YOI) near Leeds, when in August 2018, I was told that when I turned 18, I could be deported back to Portugal. I had a meeting at Wetherby, a woman from the Home Office said that they would be looking into my case and that they might deport me. The woman gave me a letter that also said that I could be deported, I read some of it but I didn’t really understand it. The woman from the Home Office told me that I could appeal this but didn’t tell me how I could do it. I wasn’t told that I could be removed before any appeal. I wasn’t provided with a lawyer, or told how to contact one. My YOT worker, Ruth James came to the meeting with the Home Office. She didn’t say anything to me either before or after the meeting, she was there I understand because I was still only a child when they told me they were thinking of deporting me and so they needed to have someone there to act as an appropriate adult. She didn’t give me any advice and after that meeting I didn’t see her again. [7] No one really offered me any assistance in understanding the letter. I tried to find out myself using the internet, and google, but I still didn’t understand. [8] I didn’t want them to deport me but I didn’t know what to do. I was still at Wetherby YOI at that time and the first person I saw about my case, had a look at all of my documents, he told me that there was nothing that I could do, and that I would only be able to appeal when I was in Portugal. I know the man was a member of the prison staff at the YOI. I have forgotten his name though, and I don’t remember what his job was, just that he worked at the YOI. [9] I was not aware of any legal assistance that I could access while I was in Wetherby YOI. I had a social worker who I think was called Vicky at the time, but she wasn’t helpful at all. None of the staff in Wetherby really knew what to do. A woman who worked at Wetherby, as a member of support staff, informed me that I could write a letter to the Home Office if I didn’t agree with the decision they were thinking of making. I told them that I had been in the UK since 2013 and I didn’t want to leave because my family were here and I didn’t know anybody in Portugal and wouldn’t have anywhere to live. The woman gave me some advice but I wrote the letter myself, I do remember that there was very little time to respond to the letter once it was received. [10] I received the Deportation Order a few days after my 18th birthday. My 18th birthday was on17 September 2018 , it was just before I was moved from Wetherby.”
“14/09/2018 Made threats to staff 'Watch what happens when you open my door, you know what I'm capable of'.10/09/2018 Destroyed a radio,03/09/2018 Spat at an Officer,03/09/2018 During restraining he became non-compliant spitting and biting staff involved,03/09/2018 Jumped and sat on the railing and remained up there for 25 mins,01/09/2018 Assaulted another prisoner by punching and kicking them,24/07/2018 Involved in a fighting brawl with other prisoners,23/07/2018 Verbally abusive to an Officer,19/07/2018 Punched a prisoner,12/07/2018 Kicked and punched another prisoner in the gym,04/07/2018 Refused to work, grabbed an Officers arm and broke a computer mouse,22/06/2018 Assaulted a prisoner,20/06/2018 Sat on railings and remained there for 15 mins,17/06/2018 Refused a direct order,15/06/2018 Fighting.”
“Yuri had been missing from home from 8.2.18 to 6.3.18 – Ana [his mother] had not reported him as missing to the Police as it was not unusual for him to go missing and disappear for periods of time. Ana not concerned/worried about the whereabouts of Yuri. He had been as far as Southsea during this period of time as there is information on the PNC that he was stopped by Hampshire Police in the company of drug A users. Ana did not know why her son would be in Hampshire or who he was with.”
"51. It cannot be implied, in my judgement, that, if it is necessary for a decision to be made in the Member State as a matter of interim application (because no suspensive right is given), that it is not in some way a decision (a 'measure') with the potential to curtail rights of free movement. 52. In order to determine whether or not it is to be suspensory in any case, an application will be made to the court and must be determined before any further steps are taken with respect to the Deportation Order. The provision itself is not purporting to characterise the exclusion decision in any particular way. It is not drawing a distinction between a deportation decision on the one hand, and an exclusion decision pending an appeal on the other. They both in my judgement are measures that curtail rights of free movement, nothing in the wording of article 31 suggests otherwise."
“[34] In the light of Hafeez, Mr Blundell frankly (and, in my respectful view, properly) accepted that (i) in respect of an application for interim relief in a judicial review of a regulation 33 certification (as well as in a challenge to the certification itself), regulation 27 must apply and an EU proportionality exercise must be performed; and (ii) it is clear from [42] of his judgment that Murray J neither considered that exercise necessary nor in fact performed such. The judge's approach was therefore wrong in law; and the resulting exercise of his discretion in relation to interim relief consequently unlawful. It cannot be said that that error is immaterial. In those circumstances, in my view, the appropriate course is to grant permission to appeal, allow the appeal and quash Murray J's order refusing the Appellant's application for interim relief. [35] In such circumstances, it would often be the case that this court would be in as good a position as the court below to redetermine the application; but, in this case, I do not consider that this court could fairly decide now whether interim relief should be granted for the following reasons. [36] First, the parties did not entirely agree about the correct approach to the merits of the underlying appeal when considering an application for interim relief. I have set out Mr Bedford's submissions above (see paragraph 29). Mr Blundell submitted that the merits of the underlying appeal could only be indirectly relevant in an application for interim relief pending a judicial review of certification, because the focus in such an application must be on the merits of temporary removal pending the ultimate outcome of the certification decision, rather than permanent removal as a result of deportation; and, in respect of the former, the merits of an appeal against the deportation order can only be obliquely relevant. However, even on the basis of Mr Bedford's submissions on this issue, in my view this is not a case in which it would be right for this court now to determine the interim relief application taking into account the merits of the underlying appeal, because that was not envisaged by the Order of12 May 2020 and, even if we were able properly to conduct such an exercise involving consideration of the merits, that would to an extent usurp not only the certifying function of the Secretary of State granted to her by the EEA Regulations (which she is in the process of (re)exercising in the Appellant's case), but also the function of the FtT (if the Upper Tribunal were to extend time) in determining whether there was (e.g.) procedural unfairness as alleged. [37] However, more importantly, leaving aside the systemic challenges (to which I shall return), as I have described, the ultimate substantive point in the judicial review claim is whether the treatment of the Appellant involved procedural unfairness when the notice of liability to deportation was first served upon him as a child. That involves factual assessments and decisions which, in my view, this court is not in a position now to make, even if we were to admit the fresh evidence that Mr Bedford asks us to admit. That this evidence is late, and was not before Murray J, only strengthens my view. [38] Second and in any event, even if Mr Bedford were to expand the basis upon which he sought interim relief, the Appellant is seeking a mandatory order for the Secretary of State to facilitate his return to the UK, having been removed to Portugal prior to the time of the hearing before Murray J in the circumstances I have described. As discussed in R (Nixon and Tracey) v Secretary of State for the Home Department[2018] EWCA Civ 3 ; [2018] HRLR 7 and R (QR (Pakistan) v Secretary of State for the Home Department[2018] EWCA Civ 1413 , such applications for mandatory orders involve consideration of factors and jurisprudence relevant to the exercise of the court's discretion over and above those relevant to orders simply restraining removal, e.g. the circumstances of the individual abroad. In this case, it would require evidence (e.g. as to the Appellant's circumstances in Portugal) and/or submissions not currently before the court. The evidence of the Appellant's current circumstances is exceedingly thin; and there are simply no submissions from either the Appellant or the Secretary of State in respect of these issues.”
“having set aside the order of Murray J refusing the application for interim relief in the judicial review, that application should be remitted to the Administrative Court for re-determination of the application, in accordance with this judgment including the concessions made by the parties as recorded herein. I would encourage the court to use its case management powers to ensure that, so far as possible, all the Appellant's applications now before it are determined together and as soon as reasonably possible. I would also encourage both the FtT to proceed to determine the appeal before it with all expedition and, in the meantime, the Secretary of State to decide very soon whether or not she wishes to (re)certify. If she does not, the litigation becomes redundant. If she does, it is highly desirable that any challenge to the certificate is dealt with alongside the issues raised by the current proceedings.”
“…I wish to associate myself particularly with what Hickinbottom LJ says at the end of his final paragraph. The Appellant has now been excluded from the UK for over a year: that is a long time if his appeal against deportation eventually succeeds. The sooner there is some resolution of whether he can return on an interim basis (as a result either of a decision of the Secretary of State or of a decision of the court) the better. Of course a final resolution will be achieved once the Appellant's appeal against his deportation order is determined one way or the other. We now know that the First-tier Tribunal will be reconsidering his appeal, and I would hope that in view of the history that can be done as soon as possible.”
“30. The report stated: “These robberies were committed at night-time which in itself means that the victims were more vulnerable. There was a degree of force/violence used. Yuri has committed the offence as part of a group, this increases the seriousness and level of fear and intimidation towards the victim, the activity appears planned although Yuri will deny this. Yuri also has a history of committing these type (sic) of offences. There is a pattern of Yuri committing these type (sic) of violent behaviours in a public place targeting people not known to him.”
“[50] Taking into account your personal conduct, and for the reasons also set out in the decision to deport you, it is considered that you pose a genuine, present and sufficiently serious threat affecting one of the fundamental interests of UK society. [51] Consideration has been given to whether granting you bail pending resolution of your appeal could be a suitable alternative to interim removal from the UK. However, given the nature of your offending and the assessment of your risk of harm and re-offending, it is considered that you pose a real threat to the public. It is considered that this risk would remain if you were to be returned to the UK and released on bail.”
“[62] The Secretary of State accepts that there is a discretion as to whether or not to certify your deportation decision under regulation 33 of theEEA Regulations 2016 . However, it is considered that it is appropriate to certify in this case. The Secretary of State is satisfied that your removal pending the final outcome of your appeal will not cause a real risk of serious irreversible harm or otherwise be unlawful undersection 6 of the Human Rights Act 1988 and that it is proportionate as a matter of EU law. In those circumstances, and given the serious threat which you are considered to pose, it is considered that there ought to be a good reason why a discretion should be exercised in your case. It is not considered that any such good reason exists. [63] The decision to deport you from the UK has hereby been certified under regulation 33 of theEEA Regulations 2016 .”
“Article 27 General principles 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 shall 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. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) Have resided in the host Member State for the previous ten years; or (b) Are a minor, except if the expulsion is necessary for the best interests of the child …”
“This guidance document sets out how decisions should be made under theImmigration (European Economic Area) Regulations 2016 (EEA Regulations 2016 ) on the grounds of public policy and public security. This guidance applies to all public policy and public security decisions made on or after1 February 2017 .”
“ Liability to deportation If an EEA national or a family member of an EEA national is liable to deportation they must be notified in writing and given the opportunity to make representations, if they want to, about why they should not be deported. When a person is informed of their liability to deportation, they must be advised of the public policy or public security reasons for their intended removal from the UK. The liability notice must also contain a warning undersection 120 of the Nationality, Immigration and Asylum Act 2002 , in accordance with paragraph 2 of schedule 2 to theEEA Regulations 2016 . This places a continuing obligation to raise with the Home Office any reasons why they should not be deported from the UK including any time there is a material change of circumstances, as soon as they occur.Section 96(2) of the Nationality, Immigration and Asylum Act 2002 provides for the denial of a right of appeal in certain circumstances where a matter later relied on should have been, but was not, raised in response to a section 120 notice. For guidance see rights of appeal.”
“The Claimant has a right of appeal to the First-tier Tribunal (“FTT”) – and thus an alternative remedy - against that decision, which he has exercised, albeit very late. This is the proper forum for determination of the legality of the substantive decision to deport the Claimant. If he wishes to argue that there was a breach of EU law by reason of failures at the notification stage, he can advance those arguments in the FTT. The Claimant is a serious offender, and it is obviously right that the legality of the substantive deportation decision is resolved through the appropriate statutory appeal mechanism…”
“If the claimant succeeds in his primary case and the deportation order is set aside, he will be free to return to the UK and to continue his residence as before without having to pursue the tribunal appeal.”
“It will be a highly material consideration if the deportation was lawful or apparently lawful, in the sense that, even if a human rights claim that a deportation order should not be made or maintained has been unlawfully certified, the individual was deported on the basis of a deportation order that was not bad on its face and was not, at the relevant time, the subject of any appeal; and/or an application for a stay on removal had been refused or the court had directed that any further proceedings should not act as a bar to removal. On the other hand, it will also be material if the individual has been removed in the face of a stay on removal, or even if there is an active relevant appeal or judicial review in which the issue of a stay on removal has not been tested.”
“The extent to which the individual's appeal will be adversely affected if he is not returned to the UK will also be highly relevant. It will be adversely affected if it is assessed that, if he is restricted to bringing or maintaining an out-of-country appeal, that will be inadequate to protect the article 8 rights of the individual and his relevant family members. The continuing absence of the individual from the UK may adversely affect his ability to present his appeal properly in a variety of ways, for example he may be unable properly to instruct legal representatives; he may be unable to obtain effective professional expert evidence; he may be unable to give evidence, either effectively or at all. If the court assesses that, even if the exercise would be more difficult than pursuing his appeal in the UK, the deportee could effectively pursue his appeal from abroad, that is likely to be finding of great weight and will often be determinative in favour of exercising the court's discretion not to make a mandatory order for return. On the other hand, if the court assesses that he could not effectively pursue an appeal from abroad, then that may well be determinative in favour of exercising that discretion in favour of making a mandatory order for return.”
“In addition to these procedural matters, the deportee's continuing absence from the UK may be a breach of article 8 in the sense that he is deprived from being with his family, and they from being with him, pending the outcome of the appeal. Generally, such a breach will not be irremediable. However, in addition to that being a potential substantive breach of article 8, it may result in his article 8 claim in the deportation case being undermined on a continuing basis, which may be a factor of some importance. These matters too may be relevant to the assessment of whether to make a mandatory order for the deportee's return.”
“There is a public interest in deporting foreign criminals –in not returning foreign criminals who have been deported – although that may be a point of little weight where the relevant individual would have had the right to remain in the UK during the course of his appeal but for an (unlawful) certificate. There is also a public interest in public money not being expended on arranging for returning a deportee to this country to conduct an appeal which could adequately and fairly be conducted from abroad.”
“3. … by virtue of amendments to Appendix EU which are to come into force on31 December 2020 , the Claimant may be eligible to apply as the child of his mother while he is under the age of 21, or thereafter if he is dependent on her, regardless of the fact that he does not have the necessary residence at31 December 2020 : see statement of changes to the Immigration Rules dated22 October 2020 (HC 813), and in particular para. 14A of Appendix EU as amended (joining family members) and the relevant definitions in Annex 1. 4. As things stand, the Claimant does not meet the suitability criteria in para. 15 of Appendix EU, because an application will be refused on grounds of suitability where the applicant is subject to a deportation order or a decision to make a deportation order at the date of decision. However, this does not include a deportation order or deportation decision which has been set aside or no longer has effect at the date of the decision on the application (para. 17). Therefore, if the Claimant presses on with his appeal (as the SSHD submits he ought to) and is successful on appeal, the suitability criteria will not prevent him from obtaining leave. 5. The Claimant has a right of appeal against any refusal of leave under the EUSS.”
“(2A) The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. … (3C) When considering whether to grant leave to make an application for judicial review, the High Court— (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. (3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.”
“Adequate Alternative Remedy 5.3.3.1. Judicial review is often said to be a remedy of last resort (see R (Archer) v Commissioners for Her Majesty’s Revenue and Customs[2019] EWCA Civ 1021 at [87] – [95]). If there is another route by which the decision in issue can be challenged, which provides an adequate remedy for the claimant, that alternative remedy should generally be exhausted before applying for judicial review. 5.3.3.2. The alternative remedy may come in various forms. Examples include an internal complaints procedure or a statutory appeal. 5.3.3.3. If the Court finds that the claimant has an adequate alternative remedy, it will generally refuse permission to apply for judicial review.”