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When the Home Office want to deport an EU citizen who has committed a criminal offence it adopts a two-stage process. First it issues a Deportation Liability Notice (DLN). This lets the person know that the Home Office is considering deportation and invites representations. The second stage is issuing the deportation decision. It is only after this decision has been issued that deportation can actually take place.
Under EU law — see below for why this is still relevant post-Brexit — the UK can restrict an EU citizen’s free movement rights when they have committed a criminal offence. Such decisions are taken “on grounds of public policy, public security or public health”.
There is an important protection:
Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
This means that the Home Office must carefully consider an EU citizen’s circumstances before issuing a deportation decision. But what about the Deportation Liability Notice? Is this a “measure” subject to the same requirement?
This was the question considered in Costea v Secretary of State for the Home Department[2021] EWHC 1685 (Admin).
Is a Deportation Liability Notice a “measure”?
Mr Justice Griffiths first looked at the European Court of Justice case of R v Bouchereau[1978] QB 732, which addressed the meaning of “measures”, and helpfully summarised the relevant principles (see in particular paragraphs 85 and 88). He also considered the case of Hafeez[2020] EWHC 437 (Admin)., in which the High Court found that a decision to issue a “deport first, appeal later” certificate was a measure within the meaning of Article 27.
Most recently, in R (Mendes) v Secretary of State for the Home Department [2021] EWHC 115 (Admin), the High Court decided that the Deportation Liability Notice was not a measure. (The Court of Appeal had previously weighed in on the meaning of “measure” in that case but sent it back to the High Court for a final decision on the facts.)
But Griffiths J found that Mr Costea’s case was very different to that of Mr Mendes. Among other things:
Unlike Mr Costea, who was served with the DLN when he was of full age (33 years old) and not subject to any UK sentence of imprisonment, Mendes was under 18 and was served with his DLN when he was serving a sentence for six counts of robbery as an inmate of a Young Offender Institution. Moreover, unlike Mr Costea, who did not respond to the DLN, with the consequences that I have explained, Mendes immediately responded, both orally (judgment para 14) and in writing (para 19, final paragraph).
[Paragraph 107]
He therefore rejected the Home Office’s suggestion that Mendes is authority for the blanket proposition that no DLN in any circumstances is capable of being a “measure”. Whether a notice is a measure in any particular case will depend on the specific circumstances: “the effect of a form of words cannot be divorced from its context” (paragraph 110).
In Mr Costea’s case, the Deportation Liability Notice was a measure:
An Article 27 measure is “any action which affects” free movement rights… I regard the DLN in this case as such an action, reading “affects” in its broadest sense. It was, like the deportation recommendation in Bouchereau, “a necessary step in the process of arriving at any decision to make a deportation order” in the claimant’s case, because it was mandated by the Secretary of State’s policy… Furthermore, it was treated by the Secretary of State as a formal step which was integral to the process… It was also, undoubtedly, ‘one factor justifying [the] subsequent decision… to make a deportation order’”.
[Paragraphs 114 to 117]
Unfortunately, as the case turned out, this finding didn’t help him.
Does Article 30 apply to a Deportation Liability Notice?
Article 30 of the Free Movement Directive requires a person to be notified in writing of any deportation decision “in such a way that they are able to comprehend its content and the implications for them”. It also requires the notification to contain certain details, such as the reason for the decision and how to challenge it.
Mr Costea argued that, due to his poor command of English, he did not understand what the DLN was or its significance. He also complained that it did not contain the details required by Article 30.
Griffiths J rejected this complaint for four reasons:
“First, Article 30 does not refer to measures, it refers to actual decisions… The DLN was not a decision. It was part of a process designed to inform the decision which might subsequently be made” (paragraph 122 and 124).
“Second, it is difficult to see how the Secretary of State could be expected to provide anything more by way of an Article 30 notification in the DLN than she actually did… The fact that there was no decision meant that it was not yet possible to say “precisely, and in full” the basis of such a decision” (paragraph 125).
Article 28 of the directive requires the Home Office to take a person’s particular circumstances into account before issuing a deportation decision. “The DLN was designed to assist the Secretary of State in informing herself of these considerations so that she could ‘take account’ of them, as required by Article 28. The DLN was part of the Article 27 process, but it came at a point in the process prior to the requirements of Article 30, and was consistent with the requirements of Article 28 in that respect” (paragraph 126).
The criticisms of the notice were not well founded in any event. Mr Costea never asked for a translation of the notice, or for an interpreter. As such there was no obligation to translate the notice or to provide an interpreter. In any event, Mr Justice Griffiths was not convinced that Mr Costea did not in fact understand the notice.
The court therefore dismissed Mr Costea’s application for judicial review.
Why are we still talking about EU law?
You may be wondering at this point why we are drawing attention to a case about EU free movement law, given that this ceased to apply in the UK on 1 January 2021. Don’t worry, we haven’t forgotten about Brexit!
EU deportation law will continue to apply to EEA nationals (and their family members) who committed a criminal offence before 31 December 2020. The UK deportation rules will only apply where the criminal offence is after that date. See this article for further details: EU deportation protections after Brexit.
As such, despite Brexit, the Home Office will continue issuing Deportation Liability Notices, which will continue to be subject to EU law, for many years to come. The High Court’s decision in Costea means that these notices may be subject to the requirements of Article 27. If, on the facts of the case, the notice meets the definition of a “measure” it must be proportionate, based exclusively on the personal conduct of the individual concerned, not based on considerations of general prevention, not be issued only due to previous criminal convictions, and the criminal offending must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.
