Vidmantis Masalskas, R (on the application of) v The Secretary of State for the Home Department

A certification under regulation 24AA of the Immigration (European Economic Area) Regulations 2006 is a discretionary and temporary measure. It is available only while an in-time statutory appeal may be brought or remains pending.

The Secretary of State must decide that removal pending the appeal would not be unlawful under section 6 of the Human Rights Act 1998. The absence of a real risk of serious irreversible harm is a possible ground for certification, not the sole or overriding test. The necessary proportionality assessment is confined to the temporary separation during the appeal process.

An EEA removal appeal need not have automatic suspensive effect. A removed appellant has a qualified right to return to make submissions at a hearing, but not a right to be present during pre-hearing preparation.

The applicant, a Lithuanian national, sought judicial review of the Secretary of State’s decision to certify his removal under regulation 24AA of the Immigration (European Economic Area) Regulations 2006 pending his appeal against a deportation order made under regulation 19(3)(b).

He contended that the certification unlawfully prevented his attendance at the statutory appeal, that the Secretary of State had treated serious irreversible harm as the decisive test, and that the discretionary power had not been lawfully exercised. An interim injunction initially prevented removal.

Before determination of the judicial review, the First-tier Tribunal heard the statutory appeal with the applicant present and dismissed it on 27 May 2015. His application for permission to appeal to the Upper Tribunal meant that the statutory appeal process remained pending. The central issues were the scope of regulations 24AA and 29AA and the legality of the certification decision.

1. The application for judicial review was dismissed. The interim injunction preventing removal ceased to have effect.

2. Regulation 24AA creates a discretionary, not mandatory, certification power. It is parasitic on an appeal process and is limited to the period in which an in-time appeal may be brought or an appeal remains pending. It does not authorise a free-standing or permanent removal measure.

3. The statutory condition in regulation 24AA(2) requires the Secretary of State to consider whether removal pending the appeal would be unlawful under section 6 of the Human Rights Act 1998. Following Kiarie, R (on the application of) and another v Secretary of State for the Home Department [2015] EWCA Civ 1020, the absence of a real risk of serious irreversible harm under regulation 24AA(3) does not displace that condition.

4. The section 6 assessment entails proportionality. Its scope is nevertheless limited: it concerns the effect of removal during the remaining appeal process, including temporary separation from family members, rather than the full merits of the deportation decision. Cases in which temporary removal would be unlawful will ordinarily be rare.

5. Article 31 of Directive 2004/38/EC permits removal pending redress, subject to a decision on any application for interim relief. Regulation 29AA secures a qualified right for a removed person to return and make submissions in person at a First-tier Tribunal or Upper Tribunal hearing. That right is subject to the public-policy or public-security exception in regulation 29AA(3), and does not extend to pre-hearing case preparation or conferences with advisers.

6. The decision letters incorrectly framed the human-rights inquiry solely by reference to serious irreversible harm. The error was immaterial. The applicant had supplied no evidence of a dependent relationship, significant private life, or other circumstance showing that a temporary absence would breach his human rights.

• Upper Tribunal (Immigration and Asylum Chamber): The judicial-review application against regulation 24AA certification was dismissed in this judgment, [2015] UKUT 677 (IAC).
• First-tier Tribunal: The applicant’s statutory appeal against the deportation order was dismissed on 27 May 2015. He had sought permission to appeal to the Upper Tribunal; no citation is stated in the judgment.