Byczek & Anor, R (on the application of) v Secretary of State for the Home Department

Regulations governing deportation of EEA nationals may lawfully regulate applications to revoke deportation orders and restrict related appeals to an out-of-country procedure where the regulations bear a sufficient relationship to EU free-movement rights and obligations. An EEA deportation order made through regulation 24(3) is a species of order made under section 5(1) of the Immigration Act 1971. However, regulation 24A creates the power to determine revocation applications and therefore no separate immigration decision arises under section 5(2) for the purposes of section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002. Regulation 27(1)(b) consequently prevents an in-country appeal against refusal to revoke an EEA deportation order.

These linked judicial review claims concerned two EEA nationals subject to deportation orders made following decisions under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006. The Secretary of State had considered their applications, made from within the United Kingdom, to revoke the orders, but refused them.

The claimants argued that regulation 24A(3), which required revocation applications to be made outside the United Kingdom, was ultra vires section 2(2) of the European Communities Act 1972. They also argued that refusals to revoke were immigration decisions under section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002, carrying an in-country right of appeal. The central issues were the vires of regulation 24A and the proper construction of regulation 24(3).

1. The applications were dismissed. The Secretary of State was entitled to refuse to entertain in-country applications for revocation, and regulation 27(1)(b) prevented in-country appeals against refusals to revoke EEA deportation orders.
2. Regulation 24A was authorised by section 2(2)(b) of the European Communities Act 1972. That provision was not confined to measures expressly required by EU legislation. Regulation of deportation and revocation procedures bore a sufficient relationship to the free-movement rights and correlative obligations recognised by the Treaties and article 27 of the Citizenship Directive.
3. The general principle that constitutional rights should not be removed by broadly worded secondary legislation did not assist the claimants. There was no constitutional right to apply for revocation from a particular place or to appeal from within the United Kingdom.
4. The EEA Regulations established a separate appellate regime. Regulation 26 conferred the relevant appeal right, while regulation 27 restricted an appeal against refusal to revoke a deportation order to an out-of-country appeal. Treating such appeals as appeals under section 82 did not activate the separate categories in section 82(2), including section 82(2)(k).
5. Regulation 24(3) had to be read as applying the specified provisions of the Immigration Act 1971 to the requisite extent. It supplied the statutory machinery for making an EEA deportation order under section 5(1), but regulation 24A(1) separately conferred the power to decide revocation applications. Consequently, the Secretary of State’s refusals were not decisions made under section 5(2) and did not attract section 82(2)(k) appeal rights.
6. The omission of revocation refusals from paragraph 4(1) of Schedule 2 to the EEA Regulations was a drafting error, but not one the court could correct judicially. The Secretary of State’s substantive consideration of the applications did not alter their regulatory character.

First-instance judicial review decision. No prior appellate decision in the same proceedings was stated.