In Mendes v Secretary of State for the Home Department [2020] EWCA Civ 924 the Court of Appeal considered the process for removing an EU citizen from the UK whilst they have a pending appeal against deportation. The legal issue is largely the same as in the recent case of Hafeez [2020] EWHC 437 (Admin), which I discuss here. 

An unwelcome birthday present

Yuri Mendes is a Portuguese citizen born on 17 September 2000. He entered the UK in around 2013 or 2014 with his family. From 2015 to 2018, he was convicted of numerous criminal offences, including six robberies for which he was sentenced to a 12-month detention and training order.

On 17 September 2018, whilst he was still in custody, the Home Office served a deportation order on him. This also happened to be the day of his eighteenth birthday.

The case was certified under regulation 33, meaning that Mr Mendes could be removed from the UK before any appeal against his deportation was over. He sought to prevent removal through judicial review. As explained by the court:

… the scheme so far as interim orders are concerned is that, where the Secretary of State considers that it would not breach the individual’s human rights to remove him pending the appeal of (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; but, in parallel with the appeal proceedings, the individual is able to challenge the certification by way of judicial review in the Administrative Court. Where necessary, he is able to seek interim relief in those judicial review proceedings. [Paragraph 15]

The “interim relief” referred to is an order preventing removal. Mr Mendes’s application for interim relief was refused and he was deported to Portugal in July 2019. He renewed the application, this time in the form of a request for an order requiring the Home Office to return Mr Mendes to the UK. The renewed application was refused and this was the appeal against that decision.

Subsequent developments

All of the above happened before 28 February 2020, when the High Court issued its decision in Hafeez. As a result of that case, a proportionality assessment is required before a certification decision can be made. The Home Office’s guidance was subsequently updated to confirm that:

In cases where a decision to certify under regulation 33 certificate was made prior to 28 February 2020 you must withdraw the decision to certify and reconsider whether certification is appropriate. In all cases you must complete a proportionality assessment in accordance with this guidance when considering whether to remake the certification decision. The regulation 33 decision must not be remade if, following a proportionality assessment, you consider that the decision is not proportionate. [Page 19]

The Home Office is now carrying out this reconsideration process for Mr Mendes.

Resolution

When Mr Mendes’s application for interim relief was considered in July 2019, the judge did not consider proportionality. Given the subsequent Hafeez judgment the Court of Appeal had no hesitation concluding that:

The judge’s approach was therefore wrong in law; and the resulting exercise of his discretion in relation to interim relief consequently unlawful. [Paragraph 34]  

As a result, the Court of Appeal quashed the decision and sent the case back to the Administrative Court to determine. Often, after overruling a lower court, higher courts will simply decide the matter themselves. The Court of Appeal was not willing to do that here, as:

… that would to an extent usurp not only the certifying function of the Secretary of State granted to her by the EEA Regulations (which she is in the process of (re)exercising in the Appellant’s case), but also the function of the FtT (if the Upper Tribunal were to extend time) in determining whether there was (e.g.) procedural unfairness as alleged.

Whether Mr Mendes gets to return to the UK to pursue his deportation appeal is therefore yet to be decided.