Introduction

The case of Branco-Bonfim, R (On the Application Of) v Secretary of State for the Home Department ([2024] EWCA Civ 1421) represents a significant development in the interpretation and application of immigration regulations pertaining to human rights appeals within the United Kingdom. Decided by the England and Wales Court of Appeal (Civil Division) on November 20, 2024, this case scrutinizes the Secretary of State's reliance on prior certifications under the Immigration (European Economic Area) Regulations 2016 (EEA Regulations) to deny in-country appeals for human rights claims.

The appellant, Mr. Branco-Bonfim, a Portuguese national residing in the UK, faced deportation orders due to various criminal convictions, including violent disorder and drug-related offenses. Following his deportation to Portugal and subsequent re-entry into the UK, Mr. Branco-Bonfim contested the deportation on human rights grounds, particularly under Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life. The crux of the legal dispute centered on whether the Secretary of State could rely on an earlier certification to block Mr. Branco-Bonfim's right to an in-country appeal after his human rights claim was initially refused.

Summary of the Judgment

The Court of Appeal addressed two primary issues raised by Mr. Branco-Bonfim's appeal:

• Issue One: Whether the Secretary of State was entitled to rely on a prior certification under regulation 33 of the EEA Regulations 2016 to deny an in-country appeal for Mr. Branco-Bonfim's human rights claim in 2020.
• Issue Two: If the reliance on the earlier certification was impermissible, whether relief should still be refused under section 31(2A) of the Senior Courts Act 1981.

The Upper Tribunal had previously ruled that the Secretary of State’s reliance on the earlier certification in 2018 was unlawful but denied relief based on section 31(2A), which suggests that the outcome would not have been substantially different without the contested conduct.

Upon review, the Court of Appeal upheld the Upper Tribunal’s finding on Issue One, determining that the Secretary of State could not lawfully rely on the 2018 certification to block the 2020 in-country appeal. However, the second issue presented complexities regarding the application of section 31(2A), leading the Court of Appeal to dismiss the cross-appeal, thereby allowing Mr. Branco-Bonfim's in-country appeal to proceed.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to support its reasoning:

• Simplex GE (Holdings) and another v Secretary of State for the Environment (1989) – Established the principle that courts should not re-examine the merits of administrative decisions in judicial reviews.
• R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 – Clarified the breadth of "conduct complained of" under section 31(2A) of the Senior Courts Act, rejecting narrow interpretations.
• R (Public and Commercial Services Union and others) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) – Reinforced the high threshold for refusing judicial review relief under section 31(2A).
• R (Plan B Earth) v The Secretary of State for Transport [2020] EWCA Civ 214 – Emphasized the courts' cautious approach in avoiding merit-based assessments in public law decisions during judicial reviews.

Legal Reasoning

The Court of Appeal's reasoning hinged on the interpretation of regulatory frameworks governing immigration and human rights appeals. The central argument was whether the Secretary of State's 2018 certification under regulation 33 appropriately applied to the 2020 human rights claim.

The Court determined that the 2018 certification was specific to the removal order at that time and did not extend to subsequent removal decisions or appeals. As such, the Secretary of State could not retrospectively apply the 2018 certification to block the 2020 in-country appeal.

Regarding section 31(2A) of the Senior Courts Act 1981, which allows courts to refuse judicial review relief if the outcome would likely be the same without the alleged unlawful conduct, the Court identified practical and legal challenges in applying this provision to prevent relief. Notably, the Secretary of State's potential reliance on a different statutory provision (section 94(1) of the Nationality, Immigration and Asylum Act 2002) to certify the human rights claim presented uncertainties that made it inappropriate to dismiss relief on the grounds suggested by section 31(2A).

Impact

This judgment has several implications for future immigration and human rights cases:

• Clarification of Certification Scope: It delineates the limits of certifications under the EEA Regulations, emphasizing that they are not blanket authorizations applicable to all future removal orders.
• Strengthening In-Country Appeal Rights: By preventing the misuse of prior certifications to block in-country appeals, the decision upholds the right of individuals to contest deportation orders within the UK judicial system.
• Judicial Review Standards: The case reinforces the high threshold for refusing judicial review relief under section 31(2A), ensuring that courts do not unjustly deny access to legal remedies based on speculative assessments of decision-maker conduct.
• Policy and Procedure Guidance: Immigration authorities must now exercise greater precision in applying certifications, ensuring they align strictly with the relevant removal orders and statutory provisions.

Complex Concepts Simplified

Certification Under Regulation 33 of the EEA Regulations

Certification under regulation 33 allows the Secretary of State to authorize the removal of an individual pending the outcome of an appeal. This certification implies that the removal would not be unlawful under human rights considerations. However, its applicability is confined to specific removal decisions and cannot be extrapolated to unrelated or subsequent cases.

Section 31(2A) of the Senior Courts Act 1981

This section mandates courts to refuse judicial review claims if it appears highly likely that the outcome would be the same, irrespective of the alleged misconduct by the decision-maker. Exceptions exist only under exceptional public interest, making it a stringent standard to meet.

In-Country vs. Out-of-Country Appeals

An in-country appeal allows individuals to challenge deportation orders while remaining within the UK, whereas out-of-country appeals require the individual to lodge the appeal from abroad. This distinction significantly impacts the accessibility and logistical considerations of seeking judicial relief.

Section 94 and 94B of the Nationality, Immigration and Asylum Act 2002 (2002 Act)

- Section 94: Empowers the Secretary of State to certify human rights claims as clearly unfounded, thereby potentially limiting the scope of appeals.
- Section 94B: Pertains to the certification of human rights claims even if the appeals process hasn’t been initiated or exhausted, under specific conditions.

Conclusion

The Court of Appeal's decision in Branco-Bonfim v Secretary of State underscores the judiciary's role in meticulously interpreting and enforcing the boundaries of immigration regulations, especially concerning human rights protections. By invalidating the Secretary of State's reliance on a prior certification to obstruct an in-country appeal, the Court reinforces the procedural rights of individuals facing deportation.

Furthermore, the careful consideration and subsequent refusal to apply section 31(2A) in this context highlight the judiciary's commitment to ensuring that high thresholds are maintained before judicial review relief can be denied. This balance preserves the integrity of legal processes while respecting the executive's authority within its defined statutory limits.

Moving forward, this judgment serves as a pivotal reference for both immigration authorities and claimants, delineating the precise circumstances under which certifications may influence appeal rights and ensuring that procedural safeguards for human rights claims remain robust and accessible.