Garrec & Anor, R (on the application of) v Secretary of State for the Home Department & Anor

Factual and Procedural Background

There are two appeals before the court concerning interim relief applications related to decisions by the Secretary of State to deport EEA nationals. The deportation decisions are made under the Immigration (European Economic Area) Regulations 2016 ("the EEA Regulations"), which implement the Citizens' Directive (Directive 2004/38/EC) governing the rights of EU and EEA nationals to move and reside freely within the EU and EEA states.

Under regulation 36 of the EEA Regulations, an appeal lies to the First-tier Tribunal (Immigration and Asylum Chamber) ("the FtT") against deportation decisions. However, regulation 33 permits the Secretary of State to certify that removal pending appeal would not breach the European Convention on Human Rights ("the ECHR"), enabling removal before the appeal is determined. Regulation 41 allows a removed person to seek permission to return for the purpose of making submissions in the appeal, subject to public policy or security considerations.

Where a case is certified under regulation 33, the FtT cannot grant interim relief pending appeal. Thus, appellants seeking interim relief must instead apply for judicial review of the certification decision in the Administrative Court and seek interim relief there. This procedural framework underpins the appeals currently before the court.

In one appeal, the interim relief sought was a prohibition on removal pending appeal; in the other, the appellant had already been removed, and interim relief sought was a mandatory order for return. Both interim relief applications were refused, prompting the current appeals.

The court heard submissions from counsel representing the appellants, the Secretary of State, and a proposed intervener, The Advice on Individual Rights in Europe (AIRE) Centre. Directions were given at the hearing, with reasons to be provided later.

In the first case, the Secretary of State revoked the deportation order, rendering the interim relief appeal academic. The only remaining issue was costs, with directions given for a consent order and submissions on costs to be filed.

In the second case, the appellant, a Portuguese national born in 2000, had arrived in the UK as a child exercising EU free movement rights. He had multiple convictions between 2015 and 2018, including for robberies, and was sentenced to a detention and training order. Following expiry of the custodial sentence, he was detained pending deportation. Removal directions were set but deferred by a judicial review application which was not formally served. An appeal against deportation was allegedly lodged out-of-time but never acknowledged or actioned by the FtT.

Removal directions were renewed and the appellant was removed to Portugal before interim relief could be granted. Subsequent judicial review proceedings challenged the regulation 33 certification decision and sought interim relief, which was refused. The appellant then sought a mandatory order for return, which was also refused by the High Court.

The appellant now appeals the refusal of interim relief on grounds including alleged incompatibility of the regulatory framework with EU law principles, procedural irregularities in serving the deportation notice while a minor, and lack of notification of judicial review rights. The appeal also involves applications to amend grounds of claim and to admit fresh evidence.

The court considered procedural issues concerning the retention of the judicial review claim in this court, the appropriate jurisdiction for determining the judicial review, and the possibility of merging the judicial review with the appeal. The court declined to retain the judicial review, emphasizing the proper role of the Administrative Court at first instance and noting the complexity and procedural fairness involved.

Permission to appeal the refusal of interim relief was granted, with directions for a rolled-up hearing before a full court. The AIRE Centre was granted limited permission to intervene. The court provided a timetable for filing skeleton arguments and set a hearing window.

Legal Issues Presented

1. Whether the absence of a mechanism in the EEA Regulations for the First-tier Tribunal to grant interim relief pending appeal violates article 31.2 of the Citizens' Directive.
2. Whether requiring appellants to seek interim relief via separate judicial review proceedings infringes the EU principle of equivalence.
3. Whether the procedural framework infringes the EU principle of effectiveness, particularly regarding representation and notification rights of minors subject to deportation.
4. Whether the refusal of interim relief pending judicial review and appeal was lawful.
5. Whether the High Court should retain jurisdiction to hear the substantive judicial review claim or whether it should remain with the Administrative Court.

Arguments of the Parties

Appellant's Arguments

• The regulatory scheme violates article 31.2 of the Directive by failing to allow interim relief within the same tribunal hearing the appeal.
• The requirement to seek interim relief by judicial review breaches the EU principle of equivalence because judicial review requires a higher threshold of showing serious issues on ECHR grounds, whereas an appeal would require a lower threshold on EU law grounds.
• The scheme breaches the EU principle of effectiveness due to procedural irregularities affecting minors, lack of notification of judicial review rights, and increased cost risks.
• Procedural irregularities occurred when the appellant, a minor, was served with the deportation notice without proper representation or access to a responsible adult.
• The appellant contends an earlier appeal was lodged but not acknowledged, affecting the timeliness and validity of removal.

Secretary of State's Arguments

• The Secretary of State relies on the regulatory framework and recent guidance following the Hafeez judgment, which requires proportionality analysis before certification under regulation 33.
• The Secretary of State does not propose to appeal the Hafeez judgment and has suspended removals on the basis of prior certifications.
• The Secretary of State accepts the procedural route whereby the judicial review should be determined by the Administrative Court rather than this court.
• The Secretary of State remains neutral on the proposed intervention by the AIRE Centre.

AIRE Centre's Position

• The AIRE Centre applied to intervene to provide specialist submissions on European and international law compliance.
• The Centre's intervention is limited to responding to questions and providing written submissions not duplicating the parties' arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing the now academic status of one appeal due to revocation of the deportation order, leaving only the issue of costs for that case.

Regarding the second appeal, the court carefully analyzed the procedural framework under the EEA Regulations, emphasizing that regulation 33 certification removes the FtT's power to grant interim relief, necessitating judicial review in the Administrative Court for such relief.

The court considered the appellant's grounds challenging this framework on EU law principles, including alleged violations of article 31.2 of the Directive and the principles of equivalence and effectiveness. The court acknowledged the complexity and procedural challenges but did not resolve these substantive issues at this stage.

Procedural irregularities relating to the appellant's status as a minor and lack of representation were noted, with fresh evidence and amended claims proposed for judicial review.

The court carefully examined jurisdictional issues, concluding that it was not appropriate to retain the judicial review claim in this court but that it should proceed in the Administrative Court at first instance. The court emphasized the importance of procedural fairness, the Administrative Court's capacity to resolve factual disputes, and the preservation of appeal layers.

Permission to appeal the refusal of interim relief was granted, with directions for a rolled-up hearing and permission granted for the AIRE Centre to intervene in a limited capacity. The court set a timetable to ensure timely and orderly preparation for the hearing.

Holding and Implications

The court GRANTED PERMISSION TO APPEAL the refusal of interim relief in the second appeal and REVOKED the earlier order retaining the judicial review claim in this court. It directed that the judicial review claim should proceed in the Administrative Court, with any amendments and fresh evidence to be considered there.

The court allowed the AIRE Centre to intervene with limited submissions and set procedural directions to facilitate a rolled-up hearing before a full court.

The direct effect of this decision is to maintain the procedural framework whereby interim relief applications must be pursued via judicial review in the Administrative Court when regulation 33 certification applies, while allowing the appellant to challenge the refusal of interim relief on appeal. No new precedent was established beyond the procedural rulings and directions for case management.