R (Mendes) v Secretary of State for the Home Department  EWCA Civ 924 (17 July 2020): The only target of this appeal was Murray J's order refusing interim relief in the form of a mandatory order requiring the Home Office to facilitate the return of Mr Mendes to the UK pending determination of the judicial review challenge of the certification of his case under regulation 33 of the Immigration (European Economic Area) Regulations 2016 that his removal pending any appeal would not be in breach of his human rights. The Court of Appeal granted permission to appeal, allowed the appeal, quashed the order of Murray J refusing the earlier application for interim relief in R (Mendes) v SSHD  EWHC 2233 (Admin), and remitted the application to the Administrative Court for re-consideration and re-determination. A Portuguese national and an EU citizen, Mr Mendes, was born in 2000 and settled in the UK with his family in 2013 or 2014. But from 2015 to 2018, he was convicted of numerous criminal offences, including, on 6 March 2018, six robberies and he was sentenced to a 12-month detention and training order. While serving his custodial part of that sentence (and while aged only 17 years) the Home Office served notice of liability to deportation. Representations made by him were rejected. Instead, a deportation order was made on his eighteenth birthday on 17 September 2018. In the decision letter, the decision-maker certified under regulation 33, that Mr Mendes's removal pending any appeal would not be in breach of his human rights.
On 21 June 2019, removal directions were set for 2 July 2019. Mr Mendes's had evidence of a fax to demonstrate that he lodged an appeal against the decision to deport him on 24 June 2019 but no appeal was then actioned or even acknowledged by the FTT. In June 2019, Mr Mendes issued proceedings for judicial review of the regulation 33 certification, arguing that regulation 33 was unlawful because, in relation to interim relief pending determination of an appeal against deportation, it did not require an EU proportionality balance to be performed, and replaced the usual American Cyanamid criteria (American Cyanamid Co v Ethicon Limited  AC 396) with a test restricted to a consideration of whether removal would interfere with the individual's human rights that was contrary to the requirements of Directive 2004/38/EC. He argued that in any event regulation 33's application to him had been unlawful, because the notice of liability to deportation was served when he was detained and was an unrepresented child who could not reasonably have been expected to have obtained evidence as to the length of time he had been in the UK which went to the basis upon which the underlying deportation order had been made. Mr Mendes was removed to Portugal in July 2019 and he sought the interim relief of a mandatory order requiring the SSHD to facilitate his return, but that relief was refused. Mr Mendes also applied to the FTT to bring an out-of-time appeal against the decision to deport him, but that application was yet to be decided.
Under article 31 (Procedural safeguards) of the Directive, an appeal against an expulsion decision does not have automatic suspensory effect. But where there is an application for an interim order, then generally removal cannot be effected unless that application has been determined. Article 27(1) of the Directive permits the Member States to restrict the freedom of movement and residence of EU citizens and their family members irrespective of nationality, on grounds of public policy, public security or public health.
The scheme in relation to interim orders is that, where the SSHD considers that it would not breach the individual's human rights to remove him pending the appeal of, for e.g., a decision to deport him to an EEA country, she has power to certify that that is so.
The FTT has no power to grant interim relief in the appeal. However in parallel with the appeal proceedings, the individual is able to challenge the certification by way of judicial review in the Administrative Court and where necessary, the individual is able to seek interim relief in those judicial review proceedings.
Article 27(2) requires that measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned, previous criminal convictions shall not in themselves constitute grounds for taking such measures. In R (Hafeez) v SSHD  EWHC 437 (Admin), it was contended that regulation 33 was unlawful for not properly implementing the Directive because certification was a "measure" which restricted an individual's freedom of movement to which the safeguards of article 27 (as reflected in regulation 27 of the EEA Regulations) must apply. Foster J accepted that argument and she granted the judicial review application and gave relief in line with the principle in Marleasing (Case C-106/89)  ECR I-4135, whereby the EEA Regulations could be adequately read down so that the exclusion of regulation 27 from regulation 33 decisions was simply read out.
Foster J had judged that when assessing whether to certify removal under regulation 33, in addition to considering whether or not removal would breach section 6 of the Human Rights Act 1998, an individualised EU law-derived proportionality assessment must be made justifying why interim removal is proportionate. This consideration must be distinct from and additional to consideration in relation to whether interim removal will breach the person's ECHR rights, including whether any interference with any qualified ECHR rights is necessary and proportionate.
The Home Office accepted that decision and issued guidance to decision makers in line with it, entitled Regulations 33 and 41 of the Immigration (European Economic Area) Regulations (Version 7) (3 April 2020) and all certification decisions are made, or remade as appropriate, on the basis of an EU proportionality exercise.
Mr Mendes argued that regulation 33 of the EEA Regulations is unlawful in requiring an application for interim relief to be pursued in a different forum from the appeal itself, the EEA Regulations are in violation of the article 31(2) of the Directive. He submitted that requiring such an approach, dissociating the appeal from the application for interim relief pending the appeal, infringes the EU principle of equivalence. He also submitted that such an approach also infringes the EU principle of effectiveness as he was a child when notice of liability to deportation was given and there was a failure to ensure that, as a minor, he was properly represented. Similarly, he argued that the scheme did not make provision for notification of the right to seek judicial review or the time limit for bringing a claim and that he was exposed to a greater costs risk. In the past, Hickinbottom LJ gave a judgment in this case in R (Garrec and Mendes) v SSHD  EWCA Civ 621.
The Court of Appeal
In the light of R (Hafeez) v SSHD  EWHC 437 (Admin), the SSHD firstly accepted that 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. Secondly the SSHD accepted that it was clear from para 42 of Murray J's judgment that neither him nor Lang J – who had refused interim relief of a mandatory order – had considered that proportionality exercise necessary nor in fact performed it. Hickinbottom LJ, with whom Underhill LJ and Peter Jackson LJ agreed, held that:
34. … 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.
Hickinbottom LJ found that in the circumstances of Mr Mendes's case he did not consider that the Court of Appeal could fairly decide whether interim relief should be granted and he thus found it appropriate to remit the interim relief application. First the parties did not agree on the relevance of the merits of the underlying appeal when considering an interim relief application, and in any event, if the court were to determine it taking the merits into account, that would usurp the SSHD's certifying function and the function of the tribunal in determining whether there had been procedural unfairness as alleged. Hickinbottom LJ held as follows:
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.
Significantly, Mr Mendes was seeking a mandatory order for the SSHD to facilitate his return to the UK, having been removed to Portugal prior to the hearing before Murray J and as discussed in the cases of R (Nixon and Tracey) v SSHD  EWCA Civ 3 and R (QR (Pakistan) v SSHD  EWCA Civ 1413 such applications for mandatory orders involved consideration of factors and jurisprudence relevant to the exercise of the court's discretion over and above those relevant to orders simply restraining removal, for e.g. the circumstances of the individual abroad.
In Mr Mendes's case it would require evidence (e.g. as to his circumstances in Portugal) and/or submissions not currently before the Court of Appeal. The evidence of his current circumstances was very thin and there were no submissions from either him or the SSHD in respect of these issues. In the circumstances, Hickinbottom LJ did not say anything in relation to systemic challenges, especially that the current certification regime in the EEA Regulations is contrary to the Directive because there is no right for an appellant to seek interim relief in the FTT. He found that Mr Mendes did not apply to the FTT for interim relief only to be refused. Instead he applied to the Administrative Court for such relief and has pressed the Court of Appeal on appeal to grant the relief sought. However, his issue was not that the Administrative Court does not have jurisdiction to grant interim relief, and he complained that the FTT does not have that jurisdiction. Mr Mendes had had his route for interim relief, which he exercised and it was irrelevant for the court's purposes that the EEA Regulations might have deprived him of a potentially easier route.
Hickinbottom LJ encouraged the Administrative Court to use its case management powers to ensure that, so far as possible, all of Mr Mendes's applications before it are determined together and as soon as reasonably possible. The court also encouraged both the FTT to proceed to determine the appeal before it with all expedition and, in the meantime, the Home Office to decide quickly whether or not it wishes to (re)certify, and if it does not, the litigation becomes redundant. If it does (re)certify, it was desirable that any challenge to the certificate is dealt with alongside the issues raised by the current proceedings.
Underhill LJ gave a brief judgment associating himself with Hickinbottom LJ's views that all of Mr Mendes's applications should be determined together and as soon as reasonably possible. He added that Mr Mendes had been excluded from the UK for over a year which was a long time if his appeal against deportation eventually succeeds and a quick solution to him returning on an interim basis, as a result either of a decision of the Home Office or of a decision of the court, was desirable. In light of the grim history of the case, he found it appropriate for the FTT to reconsider Mr Mendes's appeal as soon as possible.
The effect of regulation 33 certification is that a person can be removed from the UK prior to the hearing of their deportation appeal i.e. before a judicial decision is made as regards whether they should be deported. This poses a problem for appellants because an ongoing appeal does not act as a barrier to removal because of regulation 33 certification.
Deportation in advance of an appeal causes problems for appellants and it causes serious disruption to their lives and they are separated from family and lose their jobs. Moreover, people in such a predicament are also unable to effectively prepare their cases and have reduced prospects of succeeding in their deportation appeals. In Kiarie v SSHD  UKSC 42 (discussed here), the Supreme Court held that deportation in advance of appeal was so unfair that it was unlawful as the appeal could not be effective.
Nevertheless, the Home Office is adamant that Kiarie does not apply to EEA deportation cases and the very harsh approach taken by decision-makers is justified on the ground that temporary returns can be facilitated from EEA countries so that appellants can give their evidence in their appeals.
Yet as this case shows a decision on interim relief requires an EU proportionality exercise which is accepted by the Home Office in its Version 7 guidance. But that has not prevented the authorities from turning a blind eye to any proportionality requirements and as we can see they are happy to violate people's rights only to lose in the Court of Appeal and splurge public money and waste time.