Free Movement and Deportation: Nonjudicial Restrictions on the Right to Work are Lawful

R (Lauzikas) v Secretary of State for the Home Department [2016] EWHC 3215 (Admin) (16 December 2016)

Like countless other European citizens, the Lithuanian claimant, Lauzikas, came to the UK to work the construction industry. He entered the UK in 2012. However, in June 2014, a row with his former wife’s current partner led him to first threaten and then shoot the man with a BB gun. He pleaded guilty to possessing an imitation firearm and in January 2015 he received 14 months’ imprisonment. Serving seven months on remand entitled him to immediate release and he received notification of his liability to be deported and detained under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006. In February 2015, a decision was made to make a deportation order pursuant to regulation 19(3)(b) and regulation 21 of the 2006 Regulations. The case was certified under regulation 24AA(2) of the 2006 Regulations (i.e. his removal would not be unlawful under section 6 of the Human Rights Act 1998) so as to allow his removal pending any appeal against the decision to deport him. Removal directions followed soon afterwards in March. An appeal was lodged against the deportation decision and removal directions were cancelled after parallel judicial review proceedings were issued. Lauzikas remained in the country but was nevertheless detained until the tribunal granted him bail.

The present judicial review application was mounted on the basis that an employment restriction imposed on Lauzikas constituted an unjustified and disproportionate interference with his right of free movement as an EU worker, and that the interference was also impermissible under domestic law because the home office had no power to impose restrictions where an individual was bailed to appear before the tribunal. Thirlwall J held that the right to work is a “qualified right” which is “an aspect of the freedom of movement.” Explaining that no authority existed on the central EU law point in this case, her Ladyship refused the application because the effect of suspending removal was to merely allow him to stay in the UK in order press his legal rights. Moreover, during that time he was provided accommodation and modest financial support. So no breach of his rights occurred for him to pursue remedies against the executive.

Context

When removal directions were cancelled in April 2015, Lauzikas’s application for accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999 was granted by the home office which acknowledged that prior refusal to do so was unlawful. Bail was conditional on residence and reporting requirements so that he would not go to ground while his appeal remained pending. The tribunal refused to impose restrictions on Lauzikas from working. To enhance the existing bail conditions, the home office sought to prevent Lauzikas from working by serving a notice of restrictions in the form of a pro forma document when he reported to the police on 8 May 2015. No reasons were given but the notification pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971 imposed restrictions mirroring the earlier reporting and residence conditions and added a further prohibition on him taking employment.

In August, Lauzikas left the UK at his own expense to be with his ill mother and the same month his appeal also succeeded because the First-tier Tribunal promulgated its determination and found that it had not been shown that he posed a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the UK; namely public order and security.

Lauzikas made the present judicial challenge by attacking the restriction on employment under EU and domestic law and submitted that that it was an unjustified and disproportionate interference with his right of freedom of movement as an EU worker. He also claimed that the interference was not permitted under domestic law because the executive had no power to impose restrictions in circumstances where someone is bailed to appear before the First-tier Tribunal. It was alternatively submitted that the employment restriction was an unreasonable exercise of power under paragraph 2(5) of Schedule 3 to the 1971 Act.

Against that, it was counter-argued that the employment restriction was a justified and proportionate interference with freedom of movement in accordance with EU law. Equally, on the domestic law point, there had been no unreasonable exercise of the power because the executive unmistakably enjoys power under the 1971 Act to impose restrictions on a person awaiting deportation. The parties also made written submissions in light of Nouazli [2016] UKSC 16 (see here), Gedi [2016] EWCA Civ 409 and AR (Pakistan) [2016] EWCA Civ 807.

No dispute arose about the fact that the employment restriction interfered with Lauzikas’s rights under article 45(3) of the Treaty on the Functioning of the European Union (TFEU), article 3(1) of Regulation EU 492/2011 and article 7 of Directive 2004/38/EC.

Mrs Justice Thirlwall

The claim was dismissed on both EU law and domestic law grounds.

(i) European Union Law

The court found that the right to work is a qualified right and a feature of freedom of movement. There was consensus that the court must approach the case on the basis of matters as they stood when the employment restriction was imposed. In arriving at the substance of the EU law point, the court did not take into account (i) the fact that Lauzikas withdrew his application for suspension and voluntarily left the UK (ii) the home office’s contention that the original judicial review proceedings were unmeritorious and (iii) that the tribunal allowed the appeal (because the parties agreed that the court should approach the case on the basis of matters as they stood in May 2015 when the restriction order was imposed).

The requirements of article 27 and article 28 of the Directive – regarding proportionality and public policy, public health, public security – had been developed by the CJEU in cases such as Orfanopoulos and Oliveri (C‑482/01 and C‑493/01), Oteiza Olazabal (C-100/01), Nazli (C-340/97) and Rutili (C-36/75). The net effect of these provisions was that an expulsion had to be justified on the deportee’s personal conduct.

On analysis, Thirlwall J held at para 26 that when deciding whether removing Lauzikas was justified the home office was not obliged to separately justify a restriction on his right to work in the UK, or any other similar restriction “inherent in the decision to remove” him from the UK. Considerations of his right to work were inseparable from considerations regarding his presence in the UK. Separately seeking to justify a prohibition on working would have been a “sterile” exercise producing an “inevitable” result.

It was submitted that in the absence of an expulsion measure actually being enforced, no possibility arose as regards the vitiation of the express and directly effective protection conferred by article 45(3) TFEU and article 3(1) of Regulation 492/11. Flowing from that, the argument was made that prior to restricting an EU citizen’s right to work, the decision-maker needed to justify imposing the condition on the basis of public policy, public security or public health. Proportionality was vital in that analysis and the personal conduct of the EU citizen needed to pose a genuine, present and serious threat to British society’s fundamental interests, that threat arising from Lauzikas’s employment.

Rejecting the approach, Thirlwall J held that the contended requirement (i.e. to justify the curtailment of the right to work after removal is suspended):

28. … arises only if, in addition to preventing removal, the effect of suspension is to vitiate the decision that (in short) the claimant’s presence in the UK is a threat to public policy, security or health.

Reliance placed in JN (C-601/15 PPU) for illustrative purposes was half-baked as it involved different EU legislation that was non-binding on the UK. The scope of JN was restricted to detention and impediments to other EU law rights and freedoms had not been debated in that case. Moreover, distinct from prohibiting employment, detention was “not inherent in the decision to deport” and so JN was irrelevant.

Using Nouazli a dual argument was made. First, that the decision to detain someone exercising EU law rights pending his expulsion must itself satisfy the criteria for restricting free movement. Second, each restriction of free movement must itself be justified. The first point was uncontroversial. On the second proposition, both the Court of Appeal and the Supreme Court agreed in Nouazli that regulation 21 and regulation 24 of the 2006 Regulations were compatible with EU law.

Thirlwall J did not find a decision to detain an EU citizen as being intrinsic to – or “inherent in” – a decision to deport him. Under Nouazli, detention is ancillary to deportation. The case did not help Lauzikas in the manner suggested and showed even less symmetry with the idea that suspension of removal vitiates the decision that his presence in the UK is a threat to public policy, security or health.

Olazabal had provided the CJEU with the opportunity to consider the French government’s decision to restrict an EU citizen’s freedom of movement by preventing him from visiting or residing in certain areas of France. Olazabal equally failed to help Lauzikas because after examining the question whether the restriction violated EU law, the CJEU held that a Member State cannot be regarded as being precluded from imposing administrative police measures limiting an EU migrant worker’s right of residence to a part of its national territory.

The government’s counter-claim, which was successful, argued that removing Lauzikas was justified in light of his conduct as he represented a public order/security risk. Consequently, during the suspension of removal, the lesser restriction on the right to work in the UK was permissible. It was said that suspension exclusively prevented removal and a removal decision minimally remains in place until the appeal hearing.

The implication of Lauzikas’s contentions would be that by seeking interim relief someone liable to deportation could obtain a right to continue to work in the UK. Moreover, accepting his argument would upset the balance between the right to freedom of movement and public policy considerations, a goal sought by the Directive. Accepting the government’s submission, Thirlwall J held that:

37. The suspension of actual removal (to use the words of article 31) or suspending enforcement of the decision to remove (to use the words of regulation 24AA(4)) has the effect of preventing removal, no more. It does not operate so as to vitiate the decision to remove or the justification for it. That remains in place at least until the appeal is heard. In this case suspension did not lead to a requirement that the restriction on the claimant’s right to work had to be justified.

Thereby, the court rejected the argument that a prohibition on the right to work must be inextricably linked to a person’s employment per se. Potentially, it remains possible in an individual case that the personal conduct affecting one of society’s fundamental interests arises in an employment context. Yet no rule of thumb dictated that the threat must arise from employment. Instead, the personal conduct of the individual concerned must be of the nature contemplated by article 27(2) and regulation 21(5)(c). Overall, the prohibition on working did not breach EU law.

(ii) Domestic Law and Bail

The Court of Appeal said in Gedi that it is difficult to follow the statutory provisions governing immigration bail conditions and restrictions. Lauzikas argued that if someone’s appeal is pending and the First-tier Tribunal grants bail, issues connected to continued detention and conditions of bail are in the tribunal’s remit only and so the home office had no power to impose restrictions or conditions on him. Failing that, if the power existed then was unreasonable to exercise it in his case.

In AR (Pakistan), the Court of Appeal endorsed the guidance on bail. In it the President of the First-tier Tribunal (Mr Clements) states that the primary condition for bail is to achieve attendance at all hearings of the appeal. To achieve that end, secondary conditions are imposable as to residence and reporting. Sureties may be required but there is no mention of employment conditions. Agreeing with the approach taken by the tribunal judge who granted bail, Thirlwall J held:

48. … In my judgment the request to impose it was misconceived; being in employment is not considered a risk factor for failing to attend court in the criminal jurisdiction. There is no reason to think it would be different in this context.

Although the First-tier Tribunal had an implicit power to vary bail conditions, in a case where someone was still on bail with an appeal pending the home office did not have any power to vary the bail conditions imposed by the tribunal granting bail. So the government’s reliance in AR (Pakistan) to argue otherwise was misplaced.

Lauzikas argued that the restriction order – which constituted an impermissible and unconstitutional interference by the executive with an independent judicial decision – effectively frustrated the First-tier judge’s decision to refuse to impose a condition prohibiting employment. He relied on Lord Neuberger’s clear message in Evans [2015] UKSC 21 – concerning the public disclosure of the infamous “Black Spider memos” – that the executive is bound by the decisions of the courts which cannot be unilaterally set aside.

However, the executive’s power under the 1971 Act – pursuant to paragraph 2 of Schedule 3 – was not restricted to cases where the home office had directly agreed to release someone. Thirlwall J found that restriction orders are indicative of immigration policy regarding persons liable to deportation who are not detained. The power may be used in relation to “all those within its scope, not just EU citizens, not just those on bail.” The First-tier judge’s refusal to prohibit employment did not preclude the home secretary from exercising her power under paragraph 2 of Schedule 3.

The restriction notice served on Lauzikas while he reported did not cut across the bail conditions because the residence and reporting restrictions were identical in effect to the bail conditions stipulated by the tribunal. The restriction notice represented the executive’s decision to remove Lauzikas from the UK. No interference with his ability to answer to his bail or to comply with the conditions was produced as a result. The court was not in Evans territory. No unconstitutionality arose and the tribunal judge’s decision had not been frustrated. Overall, the claim failed equally on domestic law grounds.

Comment

As seen recently in MS (India) [2016] EWHC 3162 (Admin, see here) and G (Algeria) [2016] EWHC 3232 (Admin, see here), employment restrictions are devised to deliver the message that those subject to them should not feel at home in the UK while their cases are pending because they are “unwelcome”. In Lauzikas’s case, the restriction on employment existed for just a few months.

Even in the best of times, i.e. before the Brexit vote, EU free movement law was in chains; it was categorically unfree. It is well known that the home office keeps gaming the system to buy time for its failures. In many instances, EU citizens are prohibited from working for several years. Perhaps one of those cases would have fared better in a judicial review application of this nature. For example, would it be fair for the home office to use the power under paragraph 2 of Schedule 3 to deprive an EU citizen of the right to work for five years? Surely such lengthy deprivation of EU law rights must be impermissible under both EU and domestic law.

Nonetheless, limited hope can be found in the court’s remarks – on seven occasions – that its findings are “in this case”. Notably, Mrs Justice Thirlwall (as she was in this judgment) has been elevated to the Court of Appeal and is now Lady Justice Thirlwall.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Citizens Directive, Citizenship and Nationality, CJEU, Deportation, Detention, ECHR, Employment, European Union, Human Rights Act, Immigration Act 2014, Notices, Proportionality, UKSC, Working and tagged , , , , , , , , , . Bookmark the permalink.

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