Further to the decision of Blake J in the case of Gheorghiu (reg 24AA EEA Regs – relevant factors) [2016] UKUT 24 (IAC) (FM post: Upper Tribunal considers when EEA nationals should be readmitted to UK to attend own deportation appeal hearings) the Upper Tribunal has returned to the issue of the readmission of EEA nationals to attend their own deportation appeal hearings where they have been subject to the “deport first, appeal later” rules.

The latest decision is R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR [2016] UKUT 107 (IAC). Declan O’Callaghan of Landmark Chambers was Counsel and has sent in this short note:

Mr Ockelton considered the position of EU nationals being removed and seeking to return to the UK for their appeal hearings (Reg 29AA). The Home Office position was so wide in detailing why people could be excluded from return that I doubt if anyone could return. Mr Ockelton was in agreement that there was only a narrow basis for refusing returns by EU nationals to appeal hearings, namely whether an appearance at the hearing itself would cause serious troubles to public policy or public security. With the Home Office having considered the matter three times in this particular case and got it wrong, he issued a mandatory order that entry to the UK be granted.

Importantly, Mr Ockelton confirms that the Home Office guidance on deport first, appeal later for EEA nationals is wrong.

The official and rather bland headnote reads as follows:

1.  In reg 29AA(3) of the Immigration (European Economic Area) Regulations 2006, the word “appearance” refers to P’s formal presence at his appeal.

2.  In ascertaining whether the exception in reg 29AA applies, the possibility of managing risk by detention or conditions is a factor to be taken into account.

Curiously, the headnote omits perhaps the central point, which is that there is a presumption that a person should be readmitted with a limited exception and that the Secretary of State’s guidance arguably expands that exception impermissibly. Mr Ockleton actually says as follows at paragraph 16:

There is a presumption of a person’s re-admission to make submissions in person before a Tribunal hearing his appeal. The exception is when his appearance before the Tribunal, including necessary arrangements for getting him to and from the hearing may cause serious troubles to public policy or public security. In deciding whether the exception applies, the possibility of the person’s detention, under the Immigration Acts or otherwise, does not of itself remove the risk of trouble, but is a factor to be taken into account.

This isn’t the first time the official headnote has been inadequate.

This is an updated and republished version of a post first published on 5 February 2016.