R (Connell) v Secretary of State for the Home Department [2018] EWCA Civ 1329 is about whether the Home Secretary has a duty, imposed by Parliament, to deport foreign criminals even if they are EEA nationals. The Court of Appeal ruled that the legislation on automatic deportation includes an exception for cases where deportation would breach rights derived from the EU treaties. The issue arose because the Home Secretary had refused to deport an Irish national despite him expressing a desire to be sent back to Ireland.

In September 2011 Mr Connell committed a child sex offence and was sentenced to 11 years’ imprisonment. The Home Office notified him that it was considering whether he should be deported to Ireland. A deportation decision would have made Mr Connell eligible for release nine months earlier than otherwise, under the early removal scheme. He wrote to indicate that he would like to be deported.

In December 2015 the Home Office decided that Mr Connell would not be deported because of its policy of only deporting Irish nationals in “exceptional circumstances”. He was released on licence in August 2016.

Mr Connell’s argument was that section 32 of the UK Borders Act 2007 required the Home Secretary to deport him because he is a foreign criminal. His claim was dismissed in the High Court and Court of Appeal maintained that decision. Sir Stephen Richards noted that there is a fundamental difference to how deportation must be justified when considering UK and EU law:

a decision to remove an EEA national has to be based exclusively on the personal conduct of the person concerned and requires an individualised assessment of his case.

…

The approach required in an EEA case is fundamentally inconsistent with the application of a statutory duty to deport on the basis of a generalised assumption that deportation is conducive to the public good.

The judge went on to explain that section 33 of the 2007 Act contains an exception to avoid any conflict with EU law:

Removal of an EEA national in pursuance of an order made under section 5 of the 1971 Act by virtue of section 3(5) of that Act, i.e. an order based on the ground that the person’s deportation is conducive to the public interest, would be in plain breach of that person’s rights under the EU treaties. Exception 3 provides a straightforward basis on which the duty in section 32(5) to make a deportation order is disapplied in the case of an EEA national, leaving the issue of deportation in such a case to be determined in accordance with the 2006 Regulations.

For more on the law that applies to deporting EEA citizens, as opposed to non-Europeans, see Nick’s detailed explainer.

Sir Stephen Richards ruled that Mr Connell’s desire to return to Ireland was irrelevant. The operation of the exception is unaffected by whether or not the person actually wants to rely on their rights under EU law.

The outcome is unsurprising. Home Office officials and immigration practitioners had always assumed that the automatic deportation provisions did not apply to EEA nationals. The decision does highlight the need for further legislation to protect Irish citizens who commit crimes in the UK after Brexit and who are not keen to be deported as a result. Under current UK law, once the UK leaves the EU and no longer recognises EU legal rights, it will not be possible for the Home Secretary to only deport Irish citizens in “exceptional circumstances”. Parliament will need to take action if it wants the Home Secretary to have the freedom to protect the unique position of Irish citizens in the United Kingdom.

Thanks to Dean Kingham of Swain & Co, instructing solicitors in the case, for clarifying the factual background to the judgment; any remaining errors are our own.