Mina Dich, R ( on the application of) v Secretary of State for the Home Department [2026] EWHC 502 (Admin)

[2026] EWHC 502 (Admin)Case No AC-2024-002252
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 10 March 2026
Before
THE HONOURABLE MR JUSTICE MURRAY
Between
MINA DICHClaimantTHE AIRE CENTREIntervener
Laura Dubinsky KC and Eva Doerr (instructed by Wilson Solicitors LLP) for ClaimantRichard O’Brien KC and Catherine Brown (instructed by the Government Legal Department) for DefendantSimon Cox, Bojana Asanovic and Rosa Polaschek (instructed by Kingsley Napley LLP) for IntervenerHearing Hearing date: 10 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 10 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The claimant, Mina Dich, challenges by way of judicial review: i) the decision of the defendant, the Secretary of State for the Home Department, made on 28 March 2024 to certify her interim removal from the United Kingdom under regulation 33 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) ahead of the hearing of her appeal against deportation (“the Interim Removal Certification Decision”); ii) the decision of the defendant made on 28 March 2024 to certify her interim removal from the UK under regulation 16 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“EU Exit Appeals Regulations”) ahead of the hearing of her appeal against the defendant’s refusal of her application under the EU Settlement Scheme (“the EUSS Certification Decision” and, together with the Interim Removal Certification Decision, “the Certification Decisions”); iii) the supplemental decision of the defendant made on 10 June 2024 confirming the Certification Decisions (“the Supplemental Decision”); and iv) the decision of the defendant to detain the claimant made on 8 February 2024 and her ongoing detention (“the Detention Decision”).[2]The Certification Decisions were each set out in a decision letter dated 28 March 2024 that also set out the defendant’s reasons for making a deportation order against the claimant (“the March Decision Letter”).[3]The claimant has also applied for permission to rely on the report dated 15 May 2025 of Ms Lucy Kralj, a psychotherapist specialising in complex trauma and abuse. The report sets out Ms Kralj’s assessment of the claimant, addressing her mental health diagnosis, prognosis and the risks posed by disruption of her support and care due to interim removal, including the risk of suicide.[4]Having considered the submissions of the parties, I do not admit this evidence, which was not before the decision-maker at the time of making the challenged decisions. I am satisfied that it does not satisfy the relevant test for admission of fresh expert evidence in judicial review proceedings set out in the Divisional Court decision in R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649 at [36]-[43] (Leggatt LJ and Carr J). I do not consider that this is expert evidence reasonably required to resolve this claim.[5]This is not one of those rare occasions when it is necessary or appropriate to consider evidence going beyond the material that was before the decision-maker. The claimant is not in a position to show that this evidence establishes that the defendant’s reasoning in reaching the challenged decisions was vitiated by a technical error of a kind not obvious to an untutored lay person (which, for this purpose, includes a judge) but can be demonstrated by a person with the relevant technical expertise, particularly bearing in mind that the defendant has not been given a fair opportunity, in the time before this hearing, to challenge this evidence by seeking evidence from its own expert witness. It is also important to bear in mind that there is already a substantial amount of evidence, which was before the decision-maker and which goes to the issues dealt with in Ms Kralj’s report.

The background

[6]The claimant, who is currently 51 years old, is a French national who pleaded guilty on 23 February 2018 at the Central Criminal Court to one offence of engaging in conduct in preparation for terrorist acts under section 5 of the Terrorism Act 2006. The claimant’s offence involved assisting her daughter, Rizlaine Boular, then 21 years old, in relation to preparations for a terrorist attack that Rizlaine was intending to carry out on 27 April 2017. On the same occasion, Rizlaine also pleaded guilty to an offence contrary to section 5 of the Terrorism Act 2006.[7]Rizlaine’s intended attack was thwarted by police intervention following a significant surveillance operation. At just after 19.00 on 27 April, the police entered the flat where the claimant lived with her three daughters and her son in Vauxhall and arrested Rizlaine.[8]At the sentencing hearing on 15 June 2018 at the Central Criminal Court, HHJ Dennis QC found the claimant to be a dangerous offender under the applicable sentencing legislation and sentenced her to an extended determinate sentence of eleven years and nine months, comprised of a custodial period of six years and nine months and an extended licence period of five years. By virtue of her conviction and sentence, the claimant became subject to the notification requirements of Part 4 of the Counter-Terrorism Act 2008 for a period of 30 years.[9]On the same occasion, HHJ Dennis QC sentenced Rizlaine to life imprisonment with a minimum term of 16 years, less the days she had spent on remand in custody.[10]A third defendant, Khawla Barghouthi, then 21 years old, a friend of Rizlaine with whom Rizlaine had discussed her intended terrorist attack, had also been due to be sentenced on that occasion for an offence under section 38B of the Terrorism Act 2000 (failure by a person to disclose to the police information that the person knows or believes might be of material assistance in preventing the commission by another person of an act of terrorism). Her sentencing had to be put back for further information, and she was sentenced on a subsequent occasion to 28 months’ imprisonment.[11]In April 2017, at about the same time as Rizlaine’s intended terrorist attack, another of the claimant’s daughters, Safaa Boular, then 17 years old, was plotting a separate terrorist attack on visitors to the British Museum, for which she intended to use firearms and/or grenades. She told undercover operatives about her plan and was arrested on 12 April 2017. She was tried at the Central Criminal Court before HHJ Dennis QC and a jury. On 4 June 2018 she was convicted of two offences under section 5 of the Terrorism Act 2006. HHJ Dennis QC sentenced her to custody for life, with a minimum term of 13 years, less the days she had spent on remand in custody.[12]Both Rizlaine and Safaa made applications for leave to appeal against sentence. Each application was refused by the single judge, and each was renewed at an oral hearing before the Court of Appeal. On 16 April 2019, the Court of Appeal refused Rizlaine’s application but granted Safaa’s application, allowing her appeal to the extent of reducing her minimum term from 13 years to 11 years, less the days she had spent on remand in custody (R v Boular [2019] EWCA Crim 798, [2019] 2 Cr App R (S) 41).

Additional relevant background

[13]The factual background to the claimant’s offending was summarised in some detail by HHJ Dennis QC in his sentencing remarks when sentencing the claimant and Rizlaine Boular. The background, in particular in relation to Rizlaine’s and Safaa’s offences, was also set out in some detail by the Court of Appeal in Boular at [7]-[19]. For present purposes, only a brief summary of the further background is required.[14]On 23 February 2018, the claimant pleaded guilty to an offence contrary to section 5 of the Terrorism Act 2006 on an accepted basis of plea, the essential elements of which were as follows: i) The claimant accepted assisting Rizlaine to carry out an act of terrorism, that assistance consisting of: a) driving Rizlaine around on the evening of 25 April 2017, before the attack was due to take place (which the Court of Appeal in Boular at [18] described as a “reconnaissance mission”); b) accompanying Rizlaine to Sainsbury’s to purchase a set of three knives on 26 April 2017; and c) disposing of the two smaller knives in a rucksack in a rubbish bin on 26 April 2017, the largest knife having been retained by Rizlaine for the intended attack. ii) Although the claimant thought that Rizlaine might openly brandish the knife and threaten violence, she was not fully aware of what Rizlaine intended to do and did not believe that she would physically harm anyone. iii) The claimant was not sure if Rizlaine would carry out her plan to frighten members of the public but believed that it was a possibility.[15]HHJ Dennis QC in his sentencing remarks summarised the factual basis in this way as it related to the involvement of the claimant:
“That same evening [25 April 2017] Mina Dich drove Rizlaine across Westminster Bridge, indeed back and forth across Westminster Bridge and around the Westminster Mill Bank area on a reconnaissance trip in preparation for Rizlaine’s planned action. The following afternoon, 26 [April 2017], Mina Dich drove Rizlaine to a supermarket in the Wandsworth Road, where they purchased a pack of three knives and then a small rucksack. On leaving the store Mina threw away the two till receipts. Rizlaine, for her part, sent a photograph of the items to Khawla Barghouthi, with the caption ‘home shopping’. Later that night Mina Dich was again out in her car with Rizlaine. At one time she appeared to be doing repeated manoeuvres consistent with anti-surveillance measures. In due course she stopped her car and threw away an old rucksack in a rubbish bin and then drove on. The surveillance team recovered the rucksack and found that it contained the packaging for the three knives that had been purchased earlier, including two of the knives. However the largest knife had been removed and was still in the possession of Rizlaine.”
[16]When sentencing the claimant, HHJ Dennis QC observed that she had begun to move towards a “conservative and ultimately more extreme adherence to the Islamic faith” in 2012/2013 and that she had radicalised her daughters.[17]In its decision on 10 November 2023 not to direct the claimant’s release from custody, the Parole Board concluded that the position might be more nuanced. It noted the following points in its decision: i) It was very likely that it was the claimant who first developed an intense interest in her religion. However, in 2014, when Rizlaine was 18, she made a determined attempt to go to Syria to join the militant extremist group known as Islamic State (“IS”). The claimant notified the police, and Rizlaine was arrested in Turkey and returned to the UK. ii) In 2016, Safaa married an IS fighter named Naweed Hussain in an online ceremony. Rizlaine and Safaa were planning to go to Syria, taking with them Safaa’s then nine-month-old daughter, but Safaa was arrested and interviewed, and her passport was taken from her. iii) On 4 April 2017 Safaa learned of her husband’s death in Syria. The claimant and her daughters celebrated his death as that of a martyr. The claimant said on hearing that news that she was proud that Safaa’s status had been raised to that of the widow of a martyr. iv) In April 2017 Safaa told undercover operatives about her plan to attack visitors to the British Museum with firearms and/or grenades. She was arrested on 12 April 2017, tried at the Central Criminal Court before HHJ Dennis QC and a jury, and sentenced to custody for life with a minimum term of 11 years (after appeal), less time spent on remand in custody.[18]In his sentencing remarks, HHJ Dennis QC noted that after Safaa was remanded in custody, she remained in contact with Rizlaine. Safaa knew of her sister Rizlaine’s intention to carry out a terrorist act, using a knife to cause serious injury and/or death. Safaa did not want her mother to be present when Rizlaine did this, and HHJ Dennis QC accepted that Rizlaine may have withheld some of the details of the plan from the claimant. He further noted, however, that the claimant:
“… knowingly provided positive assistance in relation to the core elements of her daughter’s Rizlaine’s preparation for her terrorist action, including the purchase of a knife to be wielded in public by her daughter. A significant degree in herself of radicalisation with a full-on commitment to such a cause. A significant part to play in the radicalisation of her own daughters, Rizlaine and Safaa.”
[19]The judge noted the psychiatric assessment of Dr Richard Latham who concluded that “the defendant has a history of psychiatric problems stemming from her response to those traumatic events in her life” but concluded that there was unlikely to be a direct causal link between her mental health symptoms and the offence.[20]The custodial element of the claimant’s sentence ended on 8 February 2024. Since then, she has been detained under immigration powers.[21]On 28 March 2024, the defendant made her deportation order against the claimant, setting out her reasons for doing so in her letter to the claimant of the same date, which also sets out the defendant’s reasons for making the Certification Decisions. On the same day, the defendant also refused the claimant’s application of 7 June 2021 under the EU Settlement Scheme, setting out in detail her reasons for doing so.[22]The claimant lodged appeals against the deportation order and against the refusal of her application under the EU Settlement Scheme at the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT-IAC”). Those appeals were listed to be heard on 2, 3 and 4 July 2025, just over three weeks after the hearing before me (“the FTT Appeal Hearing”). The FTT Appeal Hearing has since taken place on those dates, with an additional sitting day on 8 July 2025.[23]On 12 September 2025, the FTT-IAC handed down its decision dismissing the claimant’s appeals against the deportation order and against the defendant’s refusal of her application under the EU Settlement Scheme.

The claimant’s immigration history

[24]The claimant claims to have resided in the UK since 1992, when she was 18 years old. In the March Decision Letter, the defendant indicated that she did not accept that there was evidence to support that the claimant was resident in the UK prior to 2011, but she accepted that between 2011 and 2017 the claimant had been resident for a continuous period of at least five years and therefore acquired a right of permanent residence in the UK under regulation 15 of the 2016 Regulations.[25]In the Supplemental Decision, the defendant indicated that, having considered additional evidence submitted by the claimant after the March Decision Letter, she now accepted that it was likely that the claimant had been resident in the UK from 1992 to 2017, up until the point she began serving her custodial sentence.[26]Following her arrest on 27 April 2017, the claimant was remanded in custody at HMP Bronzefield.[27]As already noted, on 23 February 2018, the claimant, having pleaded guilty, was convicted of an offence under section 5 of the Terrorism Act 2006. On 15 June 2018, she was made subject to the extended determinate sentence that I have already summarised.[28]Thirteen days later, on 28 June 2018, the claimant was served with a notice of liability to deportation (stage 1 decision).[29]On 19 July 2018, the claimant submitted representations in opposition to the stage 1 decision.[30]On 7 June 2021, the claimant submitted an in-time application under the EU Settlement Scheme.[31]On 9 August 2021, the claimant was issued with a Certificate of Application, confirming that her application under the EU Settlement Scheme had been successfully submitted.[32]On 16 March 2022, the claimant was served with a further notice of liability to deportation dated 10 March 2022.[33]On 20 May 2022, the claimant submitted further representations against the defendant’s decision to deport her.[34]On 21 June 2023, the claimant was referred to the National Referral Mechanism as a result of claims made by her in her representations submitted on 19 July 2018.[35]On 30 August 2023, the competent authority made a negative reasonable grounds decision.[36]On 28 March 2024, the defendant(i) signed the deportation order against the claimant,(ii) issued her notice of refusal of the claimant’s application under the EU Settlement Scheme, and(iii) made the Certification Decisions, setting out her reasons for doing so in the March Decision Letter.[37]On 11 April 2024, the claimant’s solicitors sent a pre-action protocol letter (“the PAP Letter”) challenging the decisions set out in the defendant’s letter giving her reasons for the decisions made on 28 March 2024.[38]On 10 June 2024, the defendant(i) issued her response to the PAP Letter and(ii) issued a separate letter to the claimant confirming her decisions to make the deportation order and to refuse the claimant’s application under the EU Settlement Scheme, setting out her reasons for doing so in the Supplemental Decision.

Procedural history

[39]On 28 June 2024, the claimant filed her claim form applying for judicial review, together with her detailed statement of facts and grounds dated 27 June 2024.[40]On 25 July 2024, the defendant filed her acknowledgement of service and summary grounds of defence.[41]On 1 August 2024, the claimant filed her reply to the summary grounds of defence.[42]On 22 October 2024, Mould J refused permission to apply for judicial review on all grounds.[43]On 6 March 2025, following the renewal of the claimant’s application for permission to apply for judicial review, Mr Andrew Kinnier KC, sitting as a Deputy High Court Judge, granted permission on all grounds and ordered expedition of the claim.[44]On 2 April 2025, the claimant applied to amend her statement of facts and grounds, including to add an additional ground of challenge, providing an amended statement of facts and grounds dated 31 March 2025.[45]On 7 April 2025, the defendant confirmed that she did not object to the claimant’s application to amend her statement of facts and grounds.[46]On 10 April 2025, the defendant filed her detailed grounds of defence.[47]On 30 April 2025, the AIRE Centre applied to intervene.[48]On 27 May 2025, Bennathan J granted the AIRE Centre permission to intervene in these proceedings by way of written submissions only, those written submissions not to exceed 20 pages. Bennathan J also ordered that the intervener should bear its own costs and that, following determination of this claim, no order for costs should be made in favour of or against it.[49]On 30 May 2025, the AIRE Centre provided its written submissions.

Grounds of claim

[50]The claimant applies for judicial review on the following grounds: i) Ground 1: The defendant’s assessment that the claimant’s interim removal is necessary and proportionate was unlawful in that: a) the defendant failed to apply the elevated level of protection to which the claimant is entitled when making the Certification Decisions; and b) the defendant failed when assessing the necessity and proportionality of interim removal of the claimant to have any or sufficient regard to the impact of the licence conditions and risk management plan that would apply to the claimant. ii) Ground 2: The defendant failed to consider rehabilitative measures put in place in the UK to mitigate and reduce any future risk of reoffending by the claimant when assessing prospects of her rehabilitation in the UK vis-à-vis France. iii) Ground 3: The claimant’s detention at HMP Bronzefield since 8 February 2024 is and has been unlawful as it is neither necessary nor proportionate. iv) Ground 4: The defendant’s maintenance of the Certification Decisions, given the timing now known, is disproportionate.[51]Ground 4 is a new ground that was added to the claimant’s amended statement of facts and grounds dated 31 March 2025.

The hearing on 10 June 2025 and post-hearing correspondence and submissions

[52]The hearing before me took place on 10 June 2025 with a time estimate of one day, which was fully occupied with oral submissions. It was necessary to reserve this judgment for various reasons, including the nature of the issues, the volume of written material provided amounting to nearly two thousand pages (excluding authorities), including the parties’ skeleton arguments and the written submissions of the intervener, and the need to give proper consideration to the detailed written and oral submissions.[53]Following the hearing, on 17 June 2025 the defendant wrote to the court to say that she intended to review the Certification Decisions within 7 days after the end of the FTT Appeal Hearing, absent special circumstances, taking into account any material aspects of the factual and expert evidence considered at the FTT Appeal Hearing. She maintained her view that the Kralj Report should not be admitted in relation to this claim, but she observed that it would be in evidence at the FTT Appeal Hearing, where there would be a fair opportunity for it to be tested. She also noted that she would be adducing evidence of Professor Greenberg, a consultant psychiatrist, at the FTT Appeal Hearing.[54]The claimant’s initial response to the defendant’s letter of 17 June 2025 was received on 18 June 2025, followed by written submissions from the claimant’s counsel on 23 June 2025, to which counsel for the defendant responded on 27 June 2025. There was further correspondence in July and September, including updates sent to the court regarding the FTT Appeal Hearing. It is not necessary to summarise it. Although there have been developments in the claimant’s situation since the hearing, I should rule on the claimant’s grounds, based on the submissions and evidence as they were before me at the hearing. Next steps can then be considered when this judgment is handed down in light of the circumstances then current.

Legal framework

[55]Before turning to the individual grounds, I will summarise briefly the relevant legal framework. Before the departure of the UK from the European Union on 31 January 2020, citizens of other member states of the European Union and qualifying family members benefitted from free movement rights as set out in Directive 2004/38/EC (“the Citizens’ Rights Directive”) and implemented into UK law by the 2016 Regulations.[56]Although not strictly relevant to the facts of this claim (given that the claimant is a national of an EU member state, namely, France), it might be helpful to note, in relation to the terminology used in the 2016 Regulations and related case law, that the 2016 Regulations extended the implementation to nationals of Liechtenstein, Iceland, and Norway, in compliance with the terms of the Agreement on the European Economic Area (“EEA”), and to nationals of Switzerland in accordance with the Agreement between the European Community and its Member States and the Swiss Confederation on the Free Movement of Persons. The 2016 Regulations, in other words, concern the rights of entry into, and residence in, the UK of “EEA nationals”, a term defined in regulation 2 to include not only nationals of the European Union (other than nationals of the UK) but also nationals of Liechtenstein, Iceland, Norway, and Switzerland.[57]Upon completion of the transition period that began on 31 January 2020 and ended on 31 December 2020 (“the Transition Period”), the 2016 Regulations were revoked. However, under regulation 2(1) of The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (“EU Exit Restrictions Regulations”), which were made under the European Union (Withdrawal Agreement) Act 2020, certain provisions of the 2016 Regulations continue to have effect with some modifications set out in the Schedule to the EU Exit Restrictions Regulations “for the purpose of removing a person who is protected by the citizens’ rights provisions”, including relevant parts of regulation 23 (Exclusion and removal from the UK), regulation 27 (Decisions taken on grounds of public policy, public security and public health), regulation 33 (Human rights considerations and interim orders to suspend removal), and regulation 36 (Appeal rights).[58]Under regulation 2 (General interpretation) of the 2016 Regulations, the term “EEA decision” is defined to include a decision under the 2016 Regulations to remove a person from the UK. While it specifically excludes any decision under regulation 33, this exclusion was found by Foster J in R (Hafeez) v Secretary of State for the Home Department [2020] EWHC 437 (Admin), [2020] 1 WLR 1877 not to reflect adequately the meaning of the Citizens’ Rights Directive and therefore the exclusion was to be disapplied or, alternatively, the person was entitled to rely upon the terms of the Citizens’ Rights Directive directly rather than the 2016 Regulations in order to vindicate their rights. See, in particular, Hafeez at [130]-[133].[59]Regulation 23(6)(b) provides a power of removal of an EEA national where the defendant has decided that the person’s removal is justified on public policy, public security or public health grounds in accordance with regulation 27, which sets out the principles that must govern that decision. Regulation 27(1) provides that, for the purposes of regulation 27, a “relevant decision” is an EEA decision taken on the grounds of public policy, public security or public health. Regulation 27(8) provides that, when considering whether the requirements of regulation 27 are met in relation to a relevant decision, a court must, in particular, have regard to the considerations contained in Schedule 1 (Considerations of public policy, public security and the fundamental interests of society etc.).[60]Regulation 36 provides a right of appeal against a decision to remove made pursuant to regulation 23. Regulation 33 provides that, where an appeal has not yet been lodged but remains within time to do so or where an appeal has been lodged but not yet determined, the defendant may only give directions for the appellant’s removal prior to the end of the time for bringing an appeal or the conclusion of appeal proceedings not yet determined if the defendant certifies that removal pending the outcome of an appeal would not be unlawful under section 6 (Acts of public authorities) of the Human Rights Act 1998, by virtue of being incompatible with a right of a relevant person under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”) as it applies to the UK.[61]The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community from the EU (2019/C 384 I/01) (“the Withdrawal Agreement”) is the principal international agreement between the EU and the UK setting out the arrangements for the withdrawal of the UK from the EU. By virtue of section 7A of the European Union (Withdrawal) Act 2018, it has direct effect in the UK.[62]Part Two of the Withdrawal Agreement, comprised of Articles 9 to 39, deals with citizens’ rights. Part Two is divided into four Titles. Title I (General provisions), Articles 9 to 12, and Title II (Rights and obligations), Articles 13 to 29, provide for a reciprocal scheme of continuing rights for individuals who began residing in their respective territories on the basis of their EU free movement rights before the end of the Transition Period. Article 10 sets out the personal scope of Part Two. It is common ground that the claimant is within it.[63]Article 15 of the Withdrawal Agreement provides a right of permanent residence for EU nationals and their respective family members in the UK and a reciprocal right of permanent residence for UK citizens and their respective family members in other EU member states where certain qualifying conditions are satisfied.[64]Article 21 of the Withdrawal Agreement states that:
“… the safeguards set out in Article 15 and Chapter VI of [the Citizens’ Rights Directive] shall apply in respect of any decision by the host State that restricts residence rights of the persons referred to in Article 10 of this Agreement.”
[65]Chapter VI of the Citizens’ Rights Directive, comprised of Articles 27 to 33, deals with restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. Articles 27 (General principles), 28 (Protection against expulsion), and 31 (Procedural safeguards) are relevant to this claim. I will deal with the relevant substance of these Articles below when considering the submissions of the parties, as well as relevant case law.[66]Although the legislative scheme governing rights of EU nationals such as the claimant to enter into and reside in the UK came to an end on 31 December 2020, as noted by the Upper Tribunal in Secretary of State for the Home Department v Abdullah [2024] UKUT 00066 (IAC) at [19]:
“… one of the purposes of the [Withdrawal Agreement] was to provide reciprocal protection for United Kingdom and EU nationals who have exercised free movement rights, and to ensure that their rights under the [Withdrawal Agreement] were enforceable as part of the United Kingdom’s withdrawal from the EU. Article 18 of the [Withdrawal Agreement] permits states to require applications for a new residence status to be made. The United Kingdom chose to require such applications to be made, setting up a residence scheme, the EUSS which enables EU, other EEA and Swiss citizens resident in the United Kingdom prior to 31 December 2020, and their family members, to obtain the necessary immigration status – a grant of leave pursuant to the Immigration Rules.”
[67]Under Article 18 of the Withdrawal Agreement, the UK has implemented a constitutive residence scheme by created the EU Settlement Scheme, governed by Appendix EU of the Immigration Rules, including as to when an application under the EU Settlement Scheme may be refused, including where, as in this case, a deportation order has been made against the relevant applicant, and how such a refusal might be appealed.[68]As I have already noted, the claimant has appealed the defendant’s decision to refuse her application under the EU Settlement Scheme under Regulation 16 of the EU Exit Appeals Regulations. Regulation 16(3) provides the defendant’s power to certify that removal of the application would not breach section 6 of the Human Rights Act 1998. Regulation 16(4) sets out the grounds on which such a certification may be made, including, in particular, that removal before the appeals process is exhausted would not cause the claimant “a real risk of serious irreversible harm”.[69]Article 20 of the Withdrawal Agreement sets out the circumstances in which the UK may restrict a person’s residence rights in the UK. Article 20(1) confirms that where an EU national has, as in this case, committed criminal conduct before the end of the transitional period, that conduct shall be assessed in accordance with Chapter VI of the Citizens’ Rights Directive, including pursuant to Article 21 the application of the relevant safeguards.[70]As to detention, the detention of an EU national has to comply with the requirements of Article 27 of the Citizens’ Rights Directive to be lawful. It needs to be both(i) necessary to restrict the freedom of movement of the detainee due to the detainee presenting a sufficiently serious, genuine and present threat to public policy or public security and(ii) proportionate to detain the EU national having regard to their personal circumstances. The Hardial Singh principles, as approved by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, with the principal formulation set out and discussed by Lord Dyson JSC at [22]-[30], are, of course, also relevant.

Discussion

[71]I turn now to consideration of the individual grounds. In the claimant’s skeleton argument and at the hearing before me, the claimant’s submissions were reformulated and presented as a series of “points” (“the Points”), which do not follow the order of the four grounds in the Amended Statement of Facts and Grounds but do present the claimant’s case in a logical and helpful way, bearing in mind how the case has evolved. A footnote to each of the Points in the skeleton argument indicates to which ground it corresponds. I adopt the claimant’s order of Points in the discussion below.

Point 1: The Essa principle (Ground 2)

[72]In relation to Point 1 for the Claimant, Ms Laura Dubinsky KC submitted that the Court of Appeal in R (Essa) v Upper Tribunal (Immigration and Asylum Chamber) [2012] EWCA Civ 1718 at [12] and [14] confirmed that when the defendant is considering the proportionality of an expulsion measure in relation to an EU national who has been convicted of a serious criminal offence in the UK, it is necessary, having regard to the decision of the Court of Justice of the European Union in Land Baden-Württemberg v Tsakouridis (C-145/09) [2011] 2 CMLR 11 at [50], for the defendant to consider explicitly that person’s prospects of rehabilitation as between the UK and their EU country of nationality. She referred to this in her submissions as the “Essa question” or the “Essa principle”. She submitted that the defendant was wrong to deny that the Essa principle applies to certification under regulation 33 of the 2016 Regulations.[73]Ms Dubinsky submitted that Essa makes clear that the host state decision-maker must consider “the interests of the Union in general” (Essa at [8]-[9], citing the Advocate General’s opinion in Tsakouridis) when deciding whether expulsion from the host state would increase risk, having regard to any risk that might materialise in the receiving state. There was no authority, she submitted, to support the defendant’s submission that the Essa principle applies only to deportation and not to interim removal.[74]Ms Dubinsky submitted that in Secretary of State for the Home Department v Dumliauskas [2015] EWCA Civ 145, a case concerning the deportation of three offenders who were nationals of the Netherlands, the Court of Appeal reaffirmed the Essa principle, noting that matters such as whether an EU national had a right of permanent residence in the UK or whether there was probation support in the receiving country were not in themselves determinative (either way) but were among the factors to be assessed and given appropriate weight according to the facts of each individual case.[75]Ms Dubinsky submitted that, as a matter of logic and principle, there is no reason why the Essa principle should not apply to interim exclusion. She submitted that, in accordance with Article 4(1) of the Withdrawal Agreement, the UK, when carrying out the necessary EU proportionality assessment, must do so as if it is still an EU member state. In this case, it is clearly relevant to that assessment that the claimant receives intensive professional support while in detention and would also receive this if released into the community in the UK, whereas if she were temporarily removed to France, there is no evidence that there would be any such support or other public involvement with her in France to promote her rehabilitation or to address the risks that she is considered to present.[76]Ms Dubinsky submitted that the defendant’s decision letter of 28 March 2024 is silent on comparative rehabilitative prospects and her supplementary decision letter of 20 June 2024 refers only to familial support, concluding that the claimant would be unsupported by family in either country. That is insufficient, she submitted, and therefore a failure properly to address the Essa question. Moreover, the Essa question concerns not only comparative rehabilitative prospects but also comparative risk. Ms Dubinsky noted that stringent controls were deemed necessary and to be imposed on the claimant in the event of her release into the community in the UK. The claimant would be required to reside at approved premises, and many aspects of her life would be restricted, including her telephone and internet use, her places of worship, her access to printed or electronically recorded materials, and her associations including family, friendship, and intimate relationships, as set out in her OASys Assessment dated 29 January 2024.[77]Ms Dubinsky submitted that the defendant has relied on the OASys Assessment and other assessments to demonstrate that the claimant poses a high risk to the public and is susceptible to radicalisation but has then failed to consider whether the loss of the stringent controls on the claimant, even temporarily, would impair the claimant’s rehabilitation or increase her risk of reoffending. In short, Ms Dubinsky submitted that the defendant’s failure to pose and to answer the Essa question before making the Certification Decisions or the Supplemental Decision was a material public law error.[78]In response for the defendant, Mr Richard O’Brien KC noted that Essa and Dumliauskas each concerned deportation and not interim removal. He submitted that the Essa principle does not apply to interim removal. In any event, even if it does, it does not assist the claimant. Assessment of the impact of interim removal is fact-specific. In this case, there was a short period of time between this hearing and the then-pending appeal before the FTT-IAC. Thus, any time that the claimant would have spent in France pending return for her appeal would have been short. In that context, he submitted, the claimant’s comparative prospects of rehabilitation during that time were not a factor of weight. This also illustrates, he submitted, why the Essa principle does not apply to interim removal.[79]Mr O’Brien submitted that Dumliauskas at [55] makes it clear that a deported offender would not normally have access to a probation officer or the equivalent in the receiving state, yet this fact does not preclude deportation. A fortiori, the lack of such in the case of interim removal cannot be a significant consideration. This, he submitted, provides a complete answer to this ground (Ground 2).[80]Mr O’Brien submitted that the defendant’s Certification Decisions and the Supplemental Decision were justified by the following factors:(i) clear evidence of the claimant’s posing a continuing high risk of serious harm to members of the public;(ii) limited, if any, evidence of that risk being addressed at present; and(iii) no evidence that rehabilitation of the claimant is being promoted by her family circumstances in the UK given that (A) the only family member that she appeared to be in touch with was her son, Mohammed Boular, and (B) if she were released on licence in the UK, she would have to live in approved premises and would be precluded from entering the area of London where he lives. He submitted that the defendant was entitled to conclude that there was no evidence that the claimant’s familial relationships would be significant to her prospective prospects of rehabilitation during a period of interim removal.[81]Finally, Mr O’Brien submitted that, in any event, the defendant did consider the claimant’s prospects of rehabilitation in the Certification Decisions and concluded that the factors required to support the claimant’s rehabilitation, as highlighted in the report prepared by Professor Doctor Zainab Al-Attar of the claimant’s most recent Extremism Risk Guidance review conducted on 31 August 2023, would not be available to her either in the UK or France, noting, in particular, a lack of familial support in the UK, given that two of her daughters were in prison and she was prohibited from contacting a third.[82]While it is true that the cases of Essa and Dumliauskas concerned deportation rather than interim removal, there is, in my judgment, no good reason in principle to conclude that interim removal is not an expulsion measure engaging the Essa principle. The reasoning in Essa and Dumliauskas, which has regard in each case to the CJEU’s decision in Tsakouridis, applies to any expulsion measure or expulsion decision.[83]Interim removal of an EU national pending an appeal will not always or necessarily be of short duration. Where it is likely to be of short duration, that factor simply becomes part of the fact-specific assessment. An interim removal of short duration may well, on particular facts, not prejudice an EU national’s prospects of rehabilitation given that rehabilitation is necessarily a slow, uncertain, and long-term process.[84]For the defendant, Mr O’Brien submitted that, although not accepting that the Essa principle applied to the decision to order the interim removal of the defendant, the defendant had in substance applied it. She had considered it expressly in relation to deportation in the March Decision Letter at paragraphs 113 to 122 and made clear at paragraph 208 of the March Decision Letter in relation to interim removal that she had regard to the EU principle of proportionality. It was clear from her reasoning that the defendant had considered the comparative prospects of rehabilitation in the UK and France and took these into account in relation to interim removal.[85]In my judgment, that is sufficient to comply with the Essa principle, as is clear from Essa at [10]-[12]. Taking into account “the interests of the Union in general” means having regard to the European dimension when assessing proportionality, necessarily a wider consideration than simply “the interests of the expelling Member State and those of the foreign criminal”. It does not, however, mean that an expulsion is disproportionate simply by virtue of the fact that the risk posed by the expelled foreign criminal will be greater in the receiving state than it would be in the expelling state, having regard to matters such as probation supervision and licence conditions. Dumliauskas at [55] makes clear that the absence of probation supervision in the receiving state cannot, alone, mean that deportation would be disproportionate. By parity of reasoning, the absence of licence conditions cannot, either alone or together with the absence of probation supervision, necessarily mean that deportation or, in this case, interim removal is disproportionate.[86]The defendant was clearly aware of the rehabilitative measures put in place in the UK to mitigate any future risk of reoffending by the claimant and, on a common sense reading of the March Decision Letter and the Supplemental Decision taken as a whole, the defendant can be presumed to have had those rehabilitative measures in the UK in mind when assessing the comparative prospects of her rehabilitation in the UK as opposed to France during her period of interim removal, just as she did explicitly in relation to deportation (to which the bulk of the analysis in the March Decision Letter is devoted).[87]The defendant nonetheless concluded that interim removal would not be disproportionate. That decision was open to her on the facts that she was considering. It is clear from the March Decision Letter that the defendant considered the matter in depth by reference to a variety of sources of information. The claimant has not identified any important source of information to which the defendant failed to have proper regard in relation to these questions.[88]For these reasons, I conclude that the claimant has failed to make out Point 1. This ground (namely, Ground 2) fails.

Point 2(i): alleged failure to apply elevated level of protection (Ground 1(i))

(i) )

[89]In relation to Point 2(i), Ms Dubinksy submitted that it was common ground, following the decision of Foster J in Hafeez at [41], [79], [130], that a decision under Article 31(4) of the Citizens’ Rights Directive to exclude an individual temporarily from the UK pending an appeal against their removal (subject to a qualified protection for the individual to be re-admitted to submit their defence against removal in person), effected via certification under regulation 33 of the 2016 Regulations, is a distinct exclusionary measure that attracts the protection of Article 27 of the Citizens’ Rights Directive, including the requirements that(i) the measure complies with the EU principle of proportionality and(ii) is based exclusively on the personal conduct of the individual concerned.[90]In relation to Point 2(i), Ms Dubinsky submitted that a decision to certify is a decision to expel for public policy reasons and therefore a decision to which Article 28(1) of the Citizens’ Rights Directive applies. She submitted that the underlying rationale of Article 28, namely, that expulsion causes greater harm to an EU national who has been long resident, and therefore more integrated, in the expelling state, applies equally to interim expulsion and enduring expulsion. She submitted that this conclusion is reinforced by the 2016 Regulations, which characterise both deportation and certification as “removal” and as “relevant decisions”. Under the 2016 Regulations, the Certification Decisions could only be made in relation to the claimant on “serious grounds of public policy or public security”.[91]Ms Dubinsky noted that the defendant denies that Article 28 applies to an interim removal decision but maintains that she nonetheless applied the enhanced threshold of “serious grounds of public policy or public security” when making the interim removal decision in relation to the claimant, relying in particular on paragraphs 100-102 of the Supplementary Decision. Ms Dubinsky submitted that a careful reading of the March Decision Letter and the Supplementary Decision makes clear that the defendant applied the enhanced threshold only to her decision to deport. She further submitted that it is clear from Hafeez that the correct test must be applied separately to the deportation decision and the interim removal decision, but the defendant failed to do that in this case.[92]In response, Mr O’Brien accepted that Article 28 applies to the decision to deport the claimant, but he did not accept that it extends to the decision to certify under regulation 33. He submitted that the focus of Hafeez, upon which the claimant relies to support this ground, was on the applicability of Article 27 to interim removal following certification under regulation 33. Although Article 28 was referred to in argument before Foster J, she restricted her ruling to the applicability of Article 27 alone.[93]Mr O’Brien submitted that Article 28 is concerned only with expulsion decisions and that it is clear that interim removal is not an expulsion decision but instead is simply a decision to exclude of a type referred to in Article 31(4). An expulsion decision and an interim removal decision are “of a fundamentally different nature and serve entirely different purposes”. The purpose of an interim removal is simply to “[maintain] the integrity of the decisions of Member States on public policy grounds”. He submitted that the claimant’s linguistic argument based on the terminology used in the 2016 Regulations referring to each of deportation and interim removal as “removal” does not assist the claimant, the difference between the two types of measure being clear upon a proper reading of the 2016 Regulations.[94]Notwithstanding that interim removal is not an “expulsion decision” for the purposes of Article 28, Mr O’Brien submitted, the defendant did, in fact, have regard to the enhanced test. By the time of the Supplemental Decision, the defendant had received the claimant’s submission in her pre-action protocol letter that the defendant had applied the “wrong test”. The defendant therefore reviewed this aspect of the decision and ensured that she had taken all of the relevant factors into account in making the Certification Decisions.[95]This ground (Ground 1(i)) is the one and only ground on which the intervener sought to intervene. The intervener in its written submissions submitted that any decision to expel a person from the UK, whether before or after an appeal, is an “expulsion decision” to which Article 28(2) applies. While it is the case that in her conclusions in Hafeez Foster J referred only to Article 27, in her reasoning she considered Article 28 alongside Article 27 without any suggestion that Article 28 did not apply. The Court of Appeal in R (Mendes) v Secretary of State for the Home Department [2020] EWCA Civ 924 at [5]-[18], in its discussion of the law applicable to a decision to refuse interim relief in relation to interim removal following a certification by the defendant under regulation 33 of the 2016 Regulations, did the same (Mendes at [7]). To interpret Article 28 as not applying to interim removal would seriously undermine the purpose of the Citizens’ Rights Directive, denying a key protection to an EU national for the duration of the appeal process, which may well be prolonged.[96]The intervener also emphasised that the EU proportionality requirement is a more stringent test than the assessment of proportionality under Article 8 of the ECHR. This is because free movement is a “fundamental aspect of the [European] Union” and therefore, in relation to the rights of an EU national under the Citizens’ Rights Directive, any exception to those rights based on public policy must be construed restrictively: see Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245, [2016] 1 WLR 1173 (Moore-Bick LJ) at [12]-[13]. The intervener agrees with the claimant’s submission that, on a proper analysis of the defendant’s reasoning in the March Decision Letter at paragraphs 237-249, it is clear that the defendant failed to apply the proportionality analysis required by EU law but instead only had regard to the claimant’s rights under Article 8 of the ECHR.[97]The defendant, in my view, has failed to identify any proper and principled basis for excluding the application of Article 28 to a decision to certify under regulation 33 of the 2016 Regulations. It is a matter of common sense that interim removal is a form of expulsion even if it may be time-limited, particularly bearing in mind that interim removal may result, depending on the facts and the progress of related deportation proceedings, in a prolonged exclusion from the UK. Mr O’Brien failed clearly to articulate why deportation and interim removal are “fundamentally different” and “serve entirely different purposes”, as opposed to simply being “different” and serving “different purposes”. They are also similar (resulting in the enforced absence of the relevant person from the UK) and serve similar purposes (removing a person from the UK who poses a high risk of harm).[98]However, I accept Mr O’Brien’s submission that, on a fair reading of the March Decision Letter and the Supplemental Decision, as a whole, it is clear that the defendant applied the enhanced test required by Article 28 to the decision to certify under regulation 33 and that she assessed proportionality as required by EU law as well having regard to Article 8 of the ECHR. It is a truism that one should not read a decision of a public authority as though it were a statute. It does not follow that, because the defendant focused on Article 8 in paragraph 102 of the Supplemental Decision, she only had regard to Article 8 in relation to the Certification Decisions. I am satisfied that on a common-sense reading of the March Decision Letter and the Supplemental Decision as a whole, it is clear that the defendant separately applied the correct proportionality tests to the deportation decision and to the Certification Decisions.[99]Accordingly, this ground (namely, Ground 1(i)) fails.

Point 2(ii): alleged failure to consider “risk now” when certifying (Ground 1(ii))

[100]In relation to Point 2(ii), Ms Dubinsky submitted that the defendant’s failure to consider in its certification decisions the risk to the UK community now (and in the period pending final determination of the claimant’s appeal against deportation) was a stand-alone public law error. In other words, she submitted that even if the enhanced protections of Article 28 of the Citizens’ Rights Directive and Regulation 27(3) of the 2016 Regulations did not apply, or even if the defendant’s argument is accepted that the defendant did in fact apply the enhanced protections, the defendant still fell into error. In Essa at [8]-[9], citing the Advocate General’s Opinion in Tsakouridis, the Court of Appeal made clear that where the Citizens’ Rights Directive applies to an expulsion decision, the decision-maker must have regard not only to the interests of the expelling state but “the interests of the Union in general”. Thus, she submitted, the decision-maker must consider whether expulsion would increase risk albeit that the risk might materialise in the receiving state rather than the expelling state. In this case, the defendant failed to do that, and that was a material public law error.[101]In response, Mr O’Brien submitted that it is clear from a reading of the March Decision Letter and the Supplemental Decision that the defendant took into account the serious risk of harm that the claimant poses to the UK public, including the fact that the serious risk of harm would be high even taking into account the stringent licence conditions and risk management plan to which she would be subject upon release into the community from immigration detention. The conditions and plan were among the competing factors that the defendant had to consider in coming to the Certification Decisions. Mr O’Brien noted that the claimant relies on Essa for this ground but, once again, emphasised that Essa was concerned with deportation, not interim removal. Moreover, he submitted, the focus in Essa was on the prospects of rehabilitation, not risk management. The defendant did not err in her consideration of the issues, he submitted, and no public law error arises.[102]I accept Mr O’Brien’s submissions on this ground. Dumliauskas, as I have already discussed, makes it clear that an increase in risk in the receiving state, where there will not necessarily be the probation support and restrictions that apply in the expelling state, is not by itself determinative. The “risk now” question, as Ms Dubinsky termed it, is simply an aspect of the overall factual assessment made by the decision-maker. In this case, I am satisfied, for the reasons I have already given, that the defendant had the proper factors in mind and applied the appropriate tests when making the Certification Decisions. It is clear that the defendant was aware of the “risk now” and that was part of her overall consideration of whether it was proportionate to make the Certification Decisions. There was no stand-alone public law error in this regard. Accordingly, this ground (Ground 1(ii)) also fails.

Point 3: proportionality of the Certification Decisions (Ground 4)

[103]In relation to Point 3 (Ground 4), Ms Dubinsky submitted that the defendant’s maintenance of her decision to certify the claimant’s interim removal from the UK, given the timing now known, was disproportionate. Even on the scenario most favourable to the defendant, it would occur only days before the FTT Appeal Hearing. Interim removal in these circumstances, she submitted, would be disproportionate, because either the claimant would be brought back before the hearing, in which case interim expulsion would last only a few days and would be “purely performative”, or she would not be brought back, in which case the FFT-IAC would be deprived of the benefit of her live evidence. For the sake of that short period of removal, Ms Dubinsky submitted, the claimant’s professional support structures and the controls needed for her rehabilitation and risk management would be disrupted. The claimant’s own fragile mental health, an integral part of rehabilitation, would be jeopardized. The defendant’s decision to order her interim removal was therefore disproportionate.[104]In response, Mr O’Brien submitted that, as noted in the claimant’s most recent OASys Report dated 20 March 2025, the claimant continued to be assessed as posing a “high risk of serious harm” to the public, children, and known adults in the community. The risk that the claimant posed was such that even if her removal could only be achieved shortly before the FTT Appeal Hearing, it remained proportionate.[105]In the event, this ground has become academic. The defendant decided not to remove the claimant pending the FTT Appeal Hearing. Accordingly, this ground also fails.

Point 4: alleged unlawful detention (Ground 3)

[106]In relation to Point 4 (Ground 3), Ms Dubinsky submitted that a public law error bearing on and relevant to the authority to detain the claimant vitiated the authority to detain her, provided that it was material to that decision: Lumba at [68], [207] and R (DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7, [2020] AC 698. If the court found that one or more such public law errors had occurred in relation to the Certification Decisions, as maintained by the claimant, then the claimant’s detention was unlawful.[107]In response, Mr O’Brien submitted that the Hardial-Singh principles were satisfied: i) The defendant’s intention was to remove the claimant, and her detention was for the purpose of that removal. ii) In the circumstances of this case, there remained a realistic prospect of her removal within a period of time that was reasonable in all the circumstances of the case, given that the only barriers at present related to the application to France for an Emergency Travel Document for the claimant and the judicial review proceedings. iii) The defendant assessed on a monthly basis the claimant’s mental and physical wellbeing, timescales for removal and re-documentation, and changes in the country situation. Her most recent Detention Review prior to this hearing was on 29 May 2025. iv) The defendant had acted and continued to act with reasonable expedition in relation to the removal of the claimant.[108]For these reasons, Mr O’Brien submitted, the detention of the claimant remained lawful.[109]Given that I have not found that the defendant made any public law error in making the Certification Decisions, this ground also fails.

Conclusion

[110]For the reasons I have given, the claim is dismissed.