BXS v Secretary of State for the Home Department

An EEA deportee must generally pursue an application to revoke a deportation order, and any resulting appeal, from outside the United Kingdom. That scheme is compatible with EU law and Convention rights, subject to a narrow safeguard where removal or the necessary short-term absence would itself breach human rights. The distinction between the act of removal and the continuing exclusionary effect of the order is material. A certificate barring an appeal under regulation 26(5) is discretionary. It must identify the ground certified, address the changed circumstances and explain why certification is appropriate. A certificate which fails to do so is unlawful and may be quashed.

The claimant, a Portuguese national subject to an EEA deportation order after criminal convictions, sought revocation while detained in the United Kingdom following changes in his family circumstances. The Secretary of State refused to treat the representations as an in-country revocation application and later issued supplementary reasons, including a certificate under regulation 26(5) of the Immigration (European Economic Area) Regulations 2006.

The judicial review raised three issues: whether EU law or human rights principles required an in-country revocation application and appeal; whether continued immigration detention breached the third Hardial Singh principle; and whether the certification was lawful.

1. Issue 1: The claim failed on the asserted right to make an in-country revocation application and appeal. Regulation 24A was capable of being read consistently with EU law and Convention rights. The scheme nevertheless required an exception where removal, or the short-term absence needed to pursue an out-of-country application or appeal, would itself breach human rights.
2. The act of removal and the continuing exclusionary effect of a deportation order are distinct. The Secretary of State must address the former where a human rights issue arises, but that does not convert the case into a general in-country challenge to continuing exclusion. The difference between the EEA and non-EEA regimes did not establish unlawful discrimination. The groups were not relevantly comparable, and, alternatively, the differential treatment was justified by the distinct EEA regime, its enhanced deportation thresholds and the legal consequences of residence.
3. Issue 2: Continued detention did not breach the third Hardial Singh principle. The question was objective: whether there remained a sufficient prospect of removal, taking account of the realistic progress of the proceedings, the time already spent in detention, and the risks of absconding and reoffending. The claimant’s risk of absconding and the prospect of prompt removal once the judicial review barrier was resolved justified detention at the relevant dates. Hindsight was impermissible.
4. Issue 3: The regulation 26(5) certificate was unlawful. The power was discretionary, not automatic. The decision failed to identify the certified ground, failed to address why discretion should be exercised, failed to engage with the material changes in family circumstances and incorrectly appeared to assume that certification merely required an out-of-country appeal. The certificate was quashed, without a finding that no lawful certificate could be made.
5. The court further explained that “ground” bears the broad meaning in section 84(1) of the Nationality, Immigration and Asylum Act 2002, but that the breadth of the term is controlled by the Secretary of State’s duty to exercise the certification discretion reasonably and with anxious scrutiny. The certificate relates to the immediate appealable EEA decision and does not prospectively bar appeals against later decisions. The claim therefore succeeded only on certification. The claimant recovered one third of his costs, and permission to appeal was granted on Issue 1 but refused on detention.

First-instance judicial review in the Administrative Court. Permission to appeal was granted on the EU-law and human-rights issues, but refused on immigration detention.