In the case of R (Wandzel) v Secretary of State for the Home Department (Rev 1) [2018] EWHC 1371 (Admin), Nigel Poole QC, sitting as a deputy High Court judge, had to deal with the effect of the famous case of Kiarie and Byndloss (discussed on Free Movement here) for deportation cases involving EEA citizens. Unfortunately for EU citizens facing deportation, Kiarie and Byndloss is unlikely to assist.

Background: EU citizen convicted of multiple criminal offences

The claimant, Mr Wandzel, is a Polish national who has lived in the UK since roughly 2007. Since then he has been convicted of 20 offences including assaulting a police officer and battery, although he never served a prison sentence of more than a day.

In October 2017, Mr Wandzel was detained and served with a notice of liability to deportation. He was also given a “One-Stop Notice” under section 120 of the Nationality, Immigration and Asylum Act 2002, directing him to let the Home Office know if he had any reason to remain in the UK.

Mr Wandzel did not respond to the One-Stop Notice and was served with a decision to deport him together with certification under regulation 33 of the EEA Regulations 2016. This meant that, despite the appeals process not being finished or even begun, he could be removed from the UK.

Mr Wandzel appealed against the notice of deportation and was eventually released in February 2018. The hearing on whether the notice of deportation itself was lawful is due to take place at the First-tier Tribunal on 18 June 2018. This case was a judicial review challenge to the lawfulness of the certification and his detention.

Kiarie and Byndloss in EEA deportation cases

In Kiarie and Byndloss, the Supreme Court found that the Secretary of State’s “deport first, appeal later” policy was unlawful where appellants could not effectively appeal against the decision from outside the UK, including because of difficulties in securing legal representation and give evidence.

Then, in the case of AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC), the Upper Tribunal gave guidance on how to assess whether an out-of-country appeal is adequate, making it clear that not all out-of-country appeals will be inadequate.

In the present case, Mr Wandzel relied on Kiairie and Byndloss to argue that requiring him to appeal from outside the UK was unlawful. His detention was also, therefore, unlawful, as the Secretary of State could not reasonably have expected to remove him within a reasonable period.

Nigel Poole QC, dismissing the appeal, disagreed. At paragraph 30 of his judgment, he highlighted the differences between Mr Wandsel’s case and the scenario in Kiarie and Byndloss. Paraphrasing, the distinguishing features were:

1. Unlike the appellants in Kiarie and Byndloss, who were non-EEA nationals, the EEA Regulations allow an appellant to return to the UK for the purpose of making submissions at the appeal in person.
2. The practical difficulties in organising return to the UK from Poland for appearance at the appeal would be minor compared with those that the appellants in Kiarie and Byndloss would have encountered in trying to give evidence from Jamaica and Kenya.
3. The “formidable obstacles” facing a foreign criminal at appeal would not be so great for Mr Wandzel. At his appeal, the issues likely to require determination were the level of protection he would benefit from under the 2016 Regulations, depending on the length of continuous residence in the UK; the risk he presents; and his integration in the UK. Mr Wandzel would not face the same challenges on appeal as a convicted drugs offender who had served a substantial prison sentence.
4. The difficulties in preparing for any appeal in advance of the hearing would be less onerous. He would be able to communicate with any representative by telephone or Skype from Poland, a country where he had lived for over 40 years.
5. In Kiarie and Byndloss the appellants had been given no notice that deportation and certification were planned, so they had not had an early opportunity to state their case whilst in the UK. Mr Wandzel, instead, was given four weeks to respond to the One-Stop Notice, which he failed to do.

The judge concluded that the certification was not disproportionate or unfair because (and I am now quoting directly):

1. There was a legitimate public interest in removing him from the UK as a matter of public protection. […]
2. He was known to have an entitlement to apply for permission to return for the purpose of attending the appeal to make submissions, under reg.41, and that was a substantial legislative protection. He was not a person likely to fall within the exceptions to the granting of reg.41 permission.
3. He would be returning to Poland, a country where he had lived for his first 43 years and from where it could reasonably be anticipated it would be practicable for him to prepare for his appeal and return to the UK for the appeal hearing.
4. He had been given reasonable opportunity to make representations and provide evidence as to why he should not be removed pending any appeal and had not done so
5. Removal pending appeal would not render ineffective his right to bring an arguable appeal before the FTT

Important if unsurprising

The findings in this case are not really surprising given the guidance provided in AJ, mentioned above. If one accepts that removing an appellant before their appeal can be lawful where this would not prevent the appellant from having a fair hearing, then the case of a European national who can return to the UK to give evidence, and who can communicate fairly easily with his legal representatives from his home country, might not meet the test of an inadequate out-of-country appeal.

All is not lost for Mr Wandzel, who might win his hearing on 18 June — in which case he would not be deported at all.