These judicial review proceedings relate to the refusal of a residence card and the right approach to the validity of deportation orders. The Court of Appeal held that refusing an EEA residence card to the appellant Arthur Obafemi Cecil Decker was unlawful because proper consideration had never been provided to whether he really represented a “genuine, present and sufficiently serious threat” within the meaning of article 27(2) of the Citizens’ Directive as transposed by regulation 21 of the Immigration (European Economic Area) Regulations 2006. Jackson, Lewison and Hamblen LJJ did not think it was obvious how the question would have been decided in light of the tribunal’s findings that Decker posed a low risk of reoffending, his offending was dated and conducted long ago in his youth, and that he had not subsequently reoffended. Decker is from Sierra Leone and entered the UK a visitor in 2000 when he was aged 17. He arrived with his sister Winifred. Their asylum applications were refused but Winifred was granted indefinite leave to remain under the legacy exercise. Because he submitted forged medical documents with an immigration application, in 2005 Decker was convicted of trying to obtain leave by deception for which he was sentenced to 15 months’ detention in a young offenders’ institution. In 2008, he was notified of the decision to make a deportation order against him.
While his appeal was pending he moved to Ireland in 2009 with his sister Jennifer, a British citizen exercising Treaty rights and was therefore granted an EEA residence card as an extended family member. His appeal was withdrawn and a deportation order was signed against him. He subsequently returned to the UK eight months later and sought an EEA residence card on the ground that he was Jennifer’s dependent and a member of her household. The application was refused in 2010 and refused after reconsideration in 2011 and 2012. The First-tier Tribunal dismissed the appeal against the refusal and the Upper Tribunal refused permission to appeal. The Home Office refused to revoke the deportation order. Decker challenged the decision to remove him by instituting judicial review proceedings, attacking the validity of the deportation order made when he was in Ireland and the decision to detain him. He also challenged the Upper Tribunal’s decision to refuse permission to appeal and the refusal and certification of his application to revoke the deportation order.
The Administrative Court
Sitting as deputy judge, Philippa Whipple QC dismissed the claim on all grounds. Among other things, she found that a deportation order made pursuant to the Immigration Act 1971 was not invalidated merely because the person against whom it was made was not present in the UK at the time it was made. In her view reading this condition into statute undermined the underlying legislative policy of the 1971 Act, which is to maintain effective immigration control by enabling the Home Office to remove foreign criminals and other persons whose presence in the UK is not conducive to the public good. The approach contended for went “against the grain of statute.”
To Philippa Whipple QC’s mind, under section 5(1) of the 1971 Act a deportation order served a dual purpose of both removing a person from the UK and prohibiting that person from entering the UK. That double effect of the provision indicated that a deportation order was intended to be valid and effective whether the person was in the UK or outside and envisaged either possibility. The judge found that rules and instructions given to immigration officials do not intend to constrict the validity of a deportation order in ways not contemplated by the statute, nor did they have that effect.
She also thought that a potential deportee would be at liberty to invalidate a deportation order by leaving the UK – by going to Calais for example and then slipping back into the UK unnoticed – on the day on which it was signed. The cycle could be repeated to defeat further deportation orders and the outcome was nonsensical. It was wrong to argue that the policy incentive for voluntary departure would be undermined because Decker had not left “voluntarily”. Rather than returning to Sierra Leone, he left the UK to avert deportation and enhance his chances of staying in the UK by getting a UK residency card. William Duah Brew  Imm AR 93 did not help and could be distinguished.
In light of Lumba  UKSC 12, there was no rule stipulating that detention was unlawful simply because the detainee was pursuing a legal challenge in respect of his removal. Deportation was imminent and detention was lawful at all events. Applying the principles articulated in Hardial Singh  EWHC 1 (QB), Decker’s detention did not subsequently become unlawful. As the brother of an EU citizen, Decker was not classifiable as a “family member” under article 2(2) of the Directive. Instead, as a member of his sister’s household, he was an “other family member” within the meaning of article 3(2)(a) and the terms of article 27 did not apply to him. There was nothing exceptional about Decker’s case. The decision-maker’s findings that removal would not breach article 8 had only been strengthened by the appellate tribunal’s subsequent findings to the same effect.
The Court of Appeal
The appeal from the Administrative Court’s decision led Jackson, Lewison and Hamblen LJJ to consider two issues. Firstly, whether the deportation order was invalid because Decker was outside the UK when it was signed. Secondly, whether the approach applied under article 27 of the Directive when he was refused a residence card was incorrect.
(i) The Deportation Order
Hamblen LJ accepted that, as reflected in the framework of a deportation order made under the 1971 Act, “deportation” normally means removing a person from the UK. He also agreed that if the Home Office is aware of a person’s departure from the UK it is likely to make an exclusion order instead. Yet the key issue of the validity and effect of a deportation order in Decker’s case – where a deportation order was made when he was absent from the UK and the authorities did not know – depended wholly on the terms of the 1971 Act which under section 3 lays down conditions for liability to deportation. In Decker’s case, he was not a British citizen and his deportation was deemed “to be conducive to the public good”.
Once he was notified of the intention to deport him, Decker was entitled to appeal the decision. After exercising his right, he later elected to abandon it. Upon the exhaustion of Decker’s appeal rights, the deportation order was made under section 5 of the 1971 Act, which sets out the “procedure for, and further provisions as to, deportation”. Hamblen LJ concurred with the Home Office that section 5(1) describes the effects of a deportation order, which has the triple effect of removal, prohibiting future entry and the invalidation of any existing leave. Distinct from section 3, the provision in section 5(1) does not operate by imposing a condition for liability for deportation. His Lordship proceeded to hold that:
27. Nowhere in the 1971 Act is presence in the UK of the subject of the deportation order made a pre-condition of the making of a valid deportation order. It may be that in such circumstances the first of the three effects of such an order will be rendered otiose but that does not affect the validity of the order, expressly or impliedly.
Moreover, he found force in the Administrative Court and the tribunal’s findings that importing a condition of validity would subvert the effectiveness of immigration control because it “would enable and encourage the avoidance of deportation by the simple expedient of being abroad on the day that the order is made.” Therefore, dismissing the appeal on the first issue, Hamblen LJ made some further observations.
He agreed that “deportation” normally means removing someone from a country but that does not mean that somebody’s presence in the UK is a condition precedent for a deportation order to be validly made. Rather than “mere language”, the 1971 Act’s provisions are determinative in that regard. While it was right to say that a deportation order orders the subject to leave the UK and that expulsion is one of its threefold effects, the point that (owing to the subject’s absence) part of the order does not need to be effectuated does not invalidate the entire order.
He disagreed that the provision for “supervised departure” in section 5(6) of the 1971 Act would be ineffective if a deportation order could be made after departure. The court said that supervised departure deals “with an entirely different circumstance” in that where a person who is liable for deportation leaves the UK to live elsewhere permanently. This entails advance knowledge of his permanent departure and the need to make a deportation order does not arise. Any arguments about obligations owed under instructions issued to officials were unpersuasive because as held in Mahad  UKSC 16 the instructions are incapable of affecting the proper construction of legislation and an order made under primary legislation could not be invalidated by mere administrative statements of policy. Reliance placed in commentary in Macdonald’s Eight Edition on voluntary or supervised departure did not assist Decker’s case. These forms of exit assume that the Home Office has been notified about the person’s willingness to leave. If a deportation order were made, it would deprive that person of the opportunity of lawful re-entry to the UK (one of the recognised advantages of voluntary departure).
Decker’s case involved very different circumstances because he did not notify the Home Office of his departure. The omission was deliberate and sought to avoiding deportation proceedings. Had the Home Office been aware of Decker’s departure, an exclusion order could have been made but this information was calculatedly withheld. The decision to deport Decker was in the public good and should have been challenged by appealing rather than clandestinely leaving the country. The authorities’ lack of knowledge meant that they reasonably remained of the view that deportation was in the public good. The judge’s conclusion on Brew was correct. Historic immigration statutes did not tackle the essential issue of validity and only exemplified the normal meaning of deportation and the normal effect of deportation orders.
(ii) Article 27 of the Directive
The appeal succeeded on the second issue. The refusal of a residence card was an incorrect application of article 27 of the Directive. Decker argued that it was wrong to insist that he posed a genuine, present, and serious threat because he had a single conviction as a minor and presented a low risk of reoffending. These were weighty considerations in his favour. He also argued that Philippa Whipple QC erred by endorsing the First-tier Tribunal’s failure to apply the correct legal test and associated principles to Decker under the 2006 Regulations which was sufficient to find that the tribunal’s determination was flawed.
At the material time, the 2006 Regulations transposed the Directive into UK law. Decker was an “extended family member” and the grant of a residence card was discretionary and it was open to the Home Office to refuse an application under regulation 20 “on grounds of public policy, public security or public health”. Equally, regulation 21(5)(c) required the decision-maker to consider whether Decker represented “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. Neither the decision letter nor the supplementary reasons mentioned regulation 21. Rather than applying regulation 21, the First-tier Tribunal focused on the discretionary nature of regulation 17(4).
The Upper Tribunal’s decision to refuse permission to appeal was wrong because it made its decision on the basis of the misunderstanding that article 27 applied only to “family members” and not “extended family members”. The Administrative Court decided that the First-tier Tribunal’s approach and reasoning entailed no error of law and Hamblen LJ held that:
58. The main difficulty with this approach is that failing to consider and apply the correct test is itself an error of law.
Perhaps the First-tier judge identified the considerations relevant to regulation 21 as regards whether Decker represented the requisite threat, but he did not ask or answer that question. The answer in the present case was not obvious because the tribunal unequivocally found that the risk of reoffending was low, the offence was dated and committed as a minor and that there was no reoffending. These traits were such that doubt existed whether the threat posed by Decker was really “genuine”, “present” and “sufficiently serious” within the meaning of regulation 21. He could not be presumptively assessed as someone who would reoffend. Hamblen LJ therefore held that:
61. In my judgment, this is therefore a case in which there is a clear error of law in the First-tier Tribunal’s decision. I would accordingly allow the appeal on Issue (2) and remit the matter for reconsideration by the Upper Tribunal.
Overall, failing to consider whether Decker represented “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” was not optional for the decision-maker and the tribunal. The test was articulated four decades ago in the historic case of Bouchereau (30/77, EU:C:1977:172, see here).
It will be interesting to see whether the issue of the validity of Decker’s deportation order is litigated further in the Supreme Court. Even after being convicted of deception in 2005, Decker also tried to obtain a residence card in 2008 by marrying an EU national who he knew was already married. The Court of Appeal’s judgment mentions that the First-tier judge was not impressed by the “sham marriage” and saw it as yet another attempt at deception.
Decker seems to have won against the odds. He was represented by Mr Zainul Jafferji who I know and would recommend as counsel. In fact, we recently won an article 8 judicial review case against the Entry Clearance Officer (Bangkok) where an entirely innocent Thai woman accused of using deception married to a British man had been made the subject of a 10-year entry clearance ban. The judge, Bobbie Cheema Grubb J, the first Asian woman to be appointed a High Court Judge, said that the Home Office and GLD’s conduct was “indefensible”.
Every type of dodgy tactic had been employed by GLD. Lies about not receiving pre-action correspondence, habitual breaches of directions, secret applications for extensions of time, meritless applications for stays, eleventh hour requests for “taking instructions” from the ECO during the hearing just to waste court time. Presumably, owing to the seven-hour time difference, the ECO in Bangkok would be at home and not at work during court hours in London. It was the height of dodginess. Some of the personnel concerned, who are clearly a law unto themselves, in the government’s service have already been named and shamed by Garnham J in Babbage  EWHC 148. But that has not changed their ways and their propensity for misconduct is probably increasing with each passing moment.
Santos  EWHC 609 (Admin) is another one of Mr Jafferji’s cases which is probably of interest to readers. It involves breaches of the Citizens’ Directive and the associated 2006 Regulations in a Brazilian national’s case. Santos was refused an EEA residence card as a family member of an EEA national exercising treaty rights in the UK. Lang J held that Santos, who had been employed as a sous chef in London, was entitled to record damages of £136,048 for false imprisonment for his detention for six months pending removal and for violations of EU law. The decision was appealed but the Home Office threw in the towel by withdrawing its appeal and the damages award stands.