Branco-Bonfim, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, born in 1995 in an African state and a national of Portugal, moved to the United Kingdom as a child. He was convicted of several criminal offences, including violent disorder, and was sentenced to imprisonment. Following his convictions, the Defendant Secretary of State served a liability to deportation letter in January 2018 and subsequently decided to deport the Appellant under the Immigration (European Economic Area) Regulations 2016 (EEA Regulations) on grounds of public policy and public security in November 2018. The Defendant certified that removal pending appeal would not be unlawful under the Human Rights Act 1998.

The Appellant appealed to the First-tier Tribunal (FTT) but withdrew the appeal and was deported to Portugal in September 2019. He returned to the UK illegally shortly thereafter, was detained, and made human rights representations claiming that removal would breach his rights under Article 8 of the European Convention on Human Rights (ECHR). The Defendant refused to revoke the deportation order, and by letter dated 14 July 2020 refused the human rights claim, stating that the public interest outweighed the Appellant’s rights. The Defendant further stated that any appeal against this refusal must be brought from outside the UK, relying on the earlier 2018 certification under the EEA Regulations.

The Appellant commenced judicial review proceedings challenging the Defendant’s reliance on the earlier certification to deny an in-country appeal. The case proceeded through the High Court and was transferred to the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal held that the Defendant’s reliance on the 2018 certification was unlawful but refused to grant relief under section 31(2A) of the Senior Courts Act 1981, concluding that it was highly likely the outcome would not have been different if the conduct complained of had not occurred. The Appellant appealed and the Defendant cross-appealed.

Legal Issues Presented

1. Whether the Defendant was entitled, under paragraph 2 of schedule 2 of the Immigration (European Economic Area) Regulations 2016, to rely on an earlier certification made pursuant to regulation 33(2) of the EEA Regulations in 2018 to deny the Appellant an in-country appeal following refusal of a later human rights claim in 2020.
2. Whether, if the Defendant was not entitled to rely on the earlier certification, relief should nevertheless be refused under section 31(2A) of the Senior Courts Act 1981 on the basis that it was highly likely the outcome would not have been substantially different if the conduct complained of had not occurred, given the Defendant’s assertion that the claim would have been certified under section 94(1) of the Nationality, Immigration and Asylum Act 2002.

Arguments of the Parties

Defendant's Arguments

• The Defendant relied on the scheme of the EEA Regulations, particularly regulations 2, 32, 33, 34, 36, and 37, submitting that the Appellant’s future removal was a direct consequence of the extant deportation order certified in 2018.
• Paragraph 2 of schedule 2 to the EEA Regulations was applicable because the removal was certified under regulation 33, thus justifying the denial of an in-country appeal.
• Allowing an in-country appeal after illegal re-entry would undermine the regulatory scheme designed to control appeal rights and removals.
• On the second issue, the Defendant argued that it was highly likely the human rights claim would have been certified under section 94(1) of the 2002 Act, justifying refusal of relief under section 31(2A) of the Senior Courts Act.

Appellant's Arguments

• The Defendant’s reliance on the 2018 certification to block an in-country appeal against the 2020 human rights claim was improper because paragraph 2 of schedule 2 to the EEA Regulations was not intended to apply to such circumstances.
• The correct legal mechanism to deny an in-country appeal was certification under section 94(1) or 94B of the 2002 Act, which was not used in this case.
• The Defendant failed to satisfy the conditions for paragraph 2 of schedule 2 of the EEA Regulations to apply.
• The Upper Tribunal failed to apply anxious scrutiny in refusing relief under section 31(2A) and impermissibly assumed the role of decision-maker regarding the likelihood of certification under section 94(1).
• The Appellant’s human rights claim involved a significant comparative assessment of his private life in the UK versus Portugal, which was not properly considered.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory scheme of certification under regulation 33 of the EEA Regulations, concluding that such certification applies only to a specific removal decision pending or subject to an appeal that has not been finally determined. The earlier certification from 2018 related solely to the removal then intended and did not cover the subsequent removal in 2020 following the renewed human rights claim.

The Court reasoned that paragraph 2 of schedule 2 of the EEA Regulations, which restricts in-country appeals based on certification, must be interpreted as applying only to the removal to which the certification relates, not to later removals arising from new claims. The human rights claim rejected in 2020 arose from circumstances distinct from those in 2018, and thus the Defendant could not rely on the earlier certification to deny an in-country appeal.

The Court acknowledged that the Defendant retained the power to certify the new human rights claim under sections 94 or 94B of the 2002 Act but had not done so. This raised the second issue concerning refusal of relief under section 31(2A) of the Senior Courts Act 1981.

Regarding section 31(2A), the Court recognised the statutory obligation to refuse relief if it is highly likely that the outcome would not have been substantially different absent the conduct complained of. The Court accepted the Upper Tribunal’s view that the human rights claim was weak given the Appellant’s status as a healthy adult national of a safe European country and lack of strong family ties in the UK.

However, the Court found two difficulties with applying section 31(2A) to refuse relief here. First, the practical effect of refusing relief was unclear because the Appellant would still have the right to appeal to the FTT absent certification, and the Court itself cannot certify. Second, the Defendant’s position that it would have certified the claim under section 94(1), which requires a higher threshold of “clearly unfounded,” was not a reasonable or expected substitute for the earlier certification under regulation 33. This uncertainty prevented the Court from concluding that it was highly likely the Defendant would have certified the claim under section 94(1).

Holding and Implications

The Court ALLOWED THE APPEAL and DISMISSED THE CROSS-APPEAL.

The holding clarified that the Defendant was not entitled to rely on the earlier 2018 certification under regulation 33 of the EEA Regulations to deny the Appellant an in-country appeal against the refusal of a human rights claim in 2020. The Defendant must make a new certification under the appropriate statutory provisions if it seeks to restrict appeal rights following a later removal decision.

The Court was unable to uphold the refusal of relief under section 31(2A) of the Senior Courts Act 1981 because it could not be established that the Defendant would have certified the claim under section 94(1) of the 2002 Act, which carries a higher threshold. The decision does not establish new precedent beyond the facts but reinforces the proper application and limits of certification and appeal rights under the EEA Regulations and the 2002 Act.