Tsavdaris v Home Office

A deportation order made lawfully under earlier European Economic Area regulations remains valid until revoked or quashed. However, under paragraph 4 of Schedule 4 to the Immigration (European Economic Area) Regulations 2006, future challenges and applications concerning the order must be determined as if it had been made under the 2006 Regulations. Where the Secretary of State reconsiders the merits of removal, the applicable legal tests must be applied even if the claimant has not identified them. Detention remains subject to the Hardial Singh limits. It becomes unlawful when it is apparent that removal cannot be effected within a reasonable period, including because of unresolved legal obstacles.

The claimant, a Greek national resident in the United Kingdom for more than ten years, was detained under a deportation order made in March 2006 under the Immigration (European Economic Area) Regulations 2000. The Immigration (European Economic Area) Regulations 2006 came into force on 30 April 2006 and imposed a higher threshold for removing an EEA national with at least ten years’ residence.

The claimant challenged his removal, initially relying on the Convention rights and later expressly relying on the 2006 Regulations. The Secretary of State released him in December 2006 and revoked the deportation order. The civil claim concerned whether the detention between 28 May and 5 December 2006 constituted false imprisonment, and in particular when the detention ceased to be lawful.

1. The deportation decision and order had been lawfully made before the 2006 Regulations came into force. Paragraph 4 of Schedule 4 preserved their validity. It did not impose a general duty to reopen every existing order. Nevertheless, any later issue concerning an existing order had to be determined as if the order had been made under the 2006 Regulations.

2. The Secretary of State’s refusal on 30 May 2006 to revoke the order was legally flawed. Having reconsidered the merits of the proposed removal, the Secretary of State had to apply the correct legal tests, including regulation 21(4), even though the claimant had not referred to the 2006 Regulations. It was common ground that the claimant could not lawfully be deported under the new regime.

3. The order remained valid, and therefore supplied statutory authority for detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, until it was revoked or quashed. That did not make the detention lawful for its entire duration. The power was subject to the four Hardial Singh principles, including the rule that detention must cease when it becomes apparent that removal cannot be effected within a reasonable period.

4. Once the Secretary of State had a reasonable opportunity to consider the judicial review application lodged on 9 June 2006, the legal obstacles created by the 2006 Regulations and the pending challenge meant that imminent removal was no longer realistically possible. Applying the third Hardial Singh principle, detention became unlawful on 1 July 2006. The claimant was therefore falsely imprisoned from 1 July until his release on 4 December 2006.

5. The setting of removal directions was an administrative step implementing the existing deportation order. It was not a fresh substantive EEA decision on public policy, public security or public health grounds under regulation 21.

The judgment records earlier judicial review proceedings. Permission was initially refused, later granted on amended grounds, but the judicial review claim was closed when the requisite continuation fees were not paid. No appellate decision is stated.