In R (Decker) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752, the Court of Appeal found that the Secretary of State must show her workings. She, and the immigration tribunals, must explicitly apply relevant tests set out in the EEA Regulations when making decisions. It is an error of law to simply identify considerations which could be relevant without specifically having regard to what the regulations say.

The court also held that a deportation order may be valid even if it is signed when the subject of the order is outside the UK.

Background to the case

Mr Decker is a Sierra Leonean national who arrived in the UK as a visitor aged 15 with one of his sisters. He claimed asylum unsuccessfully. In a later application for leave to remain, he submitted forged medical documents and was convicted of seeking to obtain leave by deception. He was sentenced to 15 months’ detention in a young offenders’ institution.

In March 2008, Mr Decker was notified of the Home Office’s decision to make a deportation order against him. He appealed against this but then, in January 2009, moved to Ireland and withdrew his appeal. Later that month, the Secretary of State signed a deportation order.

In the meantime, in Ireland, Mr Decker was issued with an EEA residence card as the extended family member of his sister Jennifer, who as a British citizen was exercising treaty rights in that jurisdiction.

In October 2009, Mr Decker returned to the UK and applied for an EEA residence card as Jennifer’s dependent. The application was refused all the way up to the Upper Tribunal.

Issues in the appeal

Validity of deportation order

The Court of Appeal found that presence in the UK is not a pre-condition of the validity of a deportation order. Otherwise, Lord Justice Hamblen said, someone could simply leave the UK every time they were notified of a decision to make a deportation order against them, and then return to the UK and repeat the cycle indefinitely.

Interestingly, the Court of Appeal recognised that it may not be appropriate to make a deportation order where a person decides to make a voluntary or supervised departure from the UK. This is because a voluntary departure gives the person an opportunity to re-enter the UK lawfully, which they are prevented to do if they are given a deportation order. Such was not the case here as Mr Decker never notified the authorities that he was leaving, and in any event his departure was found to be “for the immediate purpose of avoiding deportation proceedings”.

EEA residence card and public policy, public security or public health

More positively for Mr Decker, the Court of Appeal agreed that the First-tier Tribunal made an error of law when considering his appeal against the refusal of his application for an EEA residence card.

Regulation 20 of the EEA Regulations 2006 provides that the Secretary of State may refuse to issue a residence card if the refusal is justified on grounds of public policy, public security or public health.

Regulation 21 sets out the principles by which decisions on these grounds are to be made. Under Regulation 21(5)(c), “the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

The judge found that no reference was made to Regulation 21 either in the Secretary of State’s decision or in the First-tier Tribunal determination. This was raised in the appeal to the Upper Tribunal, but the Upper Tribunal concluded that

The principles listed at Regulation 21 comfortably extend to consideration of the various factors listed by the FTT at para 22.

The Court of Appeal disagreed:

The main difficulty with this approach is that failing to consider and apply the correct test is itself an error of law. In considering the impact of the Appellant’s conviction the Respondent was required to have regard to Regulation 21 and whether the Appellant represented “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. She did not do so. On appeal the FTT judge was similarly required to have regard to those matters. He did not do so.

It may well be that the FTT did identify the considerations relevant to Regulation 21 and whether the Appellant represented the requisite threat, but he did not ask or answer that question.

Nor is this a case where it can be said that it is obvious what the answer to that question would have been, had it been addressed.

The case therefore goes back to the Upper Tribunal, which will need to decide whether Mr Decker represents “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. I do not think the answer to that is obvious, given that the offence was committed more than ten years ago, Mr Decker was a minor when he committed the offence, and the tribunal found that the risk of re-offending was low.