Regulation 33 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) does not wrongfully exclude the ordinary principles applicable in interim relief applications. It does not exclude them at all. So held Mr Justice Murray in R (Yuri Mendes) v Secretary of State for the Home Department [2019] EWHC 2233.

Mr Mendes, a Portuguese national who had been deported, was applying for interim relief in the form of return to the UK. The court agreed with the Secretary of State that regulation 33(4), which provides that if a person applies for interim relief the person cannot be removed from the UK until the court has made its decision on the application, is an expression of the ordinary principles applicable to an application for interim relief (paragraph 41). Redress against a decision to deport that has applied the wrong test for deportation is via an appeal to the First-tier Tribunal (paragraph 42).

Detained a week after his 18th birthday

Mr Mendes was 15 when he committed his first criminal offence and 17 when he was sentenced to a 12-month Detention and Training Order for robbery. Aged 17, he was served with a notice of intention to deport him. A child, he made representations against the order without legal assistance.  The deportation order was made a fortnight later, on his 18th birthday. He was advised in the decision of his right of appeal.

A week later, upon his “release” from detention under the Detention and Training Order, he was detained under Immigration Act powers. He applied for bail, and nothing in the judgment suggests that he had legal assistance at this point. Similarly for the application for judicial review that he then made. The lodging of judicial review by unrepresented detainees is a matter recently explored in Dr Robert Thomas’s and Dr Joe Tomlinson’s Immigration Judicial Reviews: An Empirical Study, although that report deals only with judicial reviews in the Upper Tribunal and thus not with those involving a challenge to detention.  

It was unclear whether a sealed application for that judicial review had ever been served. It is also wholly unclear how this matter could have remained unresolved at the late stage of an interim relief application on a subsequent application for judicial review.

Mr Mendes, like so many detainees with nowhere else to turn, got in touch with the wonderful Bail for Immigration Detainees. BID has long drawn attention to the difficulties those detained, in particular those in prisons, have in getting legal advice and to the effects on detainees of their being no legal aid for EEA and immigration (as opposed to asylum) applications.

BID advised on an appeal out of time to the First-tier Tribunal and it appears that Mr Mendes lodged one, with the charity’s assistance, just a week later. It is surprising and troubling that that application had not been determined by the date of the hearing of the application for interim relief, a month and a half later, particularly given that in the event of a no-deal Brexit it will be necessary to be living in the UK when (if) the UK leaves the EU to make an application under the settled status scheme.

Meanwhile Mr Mendes was served with a removal notice and BID referred him to solicitors who prepared to challenge the removal and to make an application for interim relief.

The original application was to prevent the deportation, but Mr Mendes’s solicitors had misunderstood the removal notice as to the time of removal. Thus by the time the case came before the court he had been removed to Portugal and the issue was return.  

The EEA Regulations and interim relief

Regulation 33 of the EEA Regulations 2016 deals with in-time appeals (or those who are in time to appeal).

It allows for the removal of such people where the Secretary of State certifies that removal would not breach their human rights.

Becket Bedford of No5 Chambers argued on behalf of Mr Mendes that the regulation is not compatible with Directive 2004/38/EC because it fails to implement the procedural protection for which provision is made under articles 27, 28, 30 and 31 of that directive. He highlighted that Mr Mendes was only 17 when served with notice of liability to deport and that children are protected by article 28(3)(b) of Directive 2005/38/EC from expulsion other than on imperative grounds of public security. 

It was further argued that if Mr Mendes had as a matter of fact a right of permanent residence then, the test for removal was “imperative grounds of public security”. It was also argued that while Mr Mendes had been notified of his right of appeal, he had not been told how he could challenge his removal, and that this fell short of the procedural protection required by the Directive.

Tell it to the First-tier Tribunal

The court did not accept these submissions, “eloquently expanded upon” (paragraph 41). It preferred the submissions on behalf of the Secretary of State that the lawfulness of the deportation order and the question of whether the correct legal tests were applied is a matter for the out of time appeal to the First-tier Tribunal and is not relevant to the interim relief application.

The court held that it is not arguable that regulation 33 fails to implement the Directive. Article 31(2) of the Directive allows for expulsion prior to the exhaustion of procedures for redress. Article 31(4) allows temporary re-entry to the member state to submit the defence in person. Mr Mendes was not a child when the deportation order was served (on his 18th birthday) and nine months had elapsed between the making of the deportation order and removal. It was held that “he had ample time during that period to seek legal advice” (paragraph 44). Whether he had ample to find it, is a very different matter.

Bail for Immigration Detainees accepts donations. It relies on the support of barristers acting pro bono to present bail applications.