X, R (on the application of) v Secretary of State for the Home Department

Regulation 24AA certification depends on the statutory question whether removal pending appeal would be unlawful under section 6 of the Human Rights Act 1998. The absence of a real risk of serious irreversible harm is only a possible ground supporting that conclusion. It is not a substitute threshold.

Guidance which treats serious irreversible harm as the overriding criterion is unlawful. The decision-maker must assess pre-redress removal separately from permanent deportation, including the individual circumstances and the practical consequences of temporary removal.

Immigration detention also requires a rational and evidenced basis for concluding that detention is necessary to prevent a real risk of absconding or reoffending. A serious historic conviction, without more, cannot establish that risk.

The claimant, a Romanian national, challenged his deportation-related certification under regulation 24AA of the Immigration (European Economic Area) Regulations 2006, the policy governing certification, and his detention from 23 March to 23 July 2015.

He argued that the Home Secretary had applied the wrong test, acted contrary to domestic and European legal principles, and lacked reasonable grounds for detention. The court also considered whether he had acquired a permanent right of residence and whether the police detention at the outset was attributable to the Home Secretary.

1. Regulation 24AA. The central certification question was whether removal pending the appeal would be unlawful under section 6 of the Human Rights Act 1998. Applying R (Kiarie) v Secretary of State for the Home Department [2015] EWCA Civ 1020, the court held that the absence of a real risk of serious irreversible harm was merely a possible supporting ground. It could not replace the statutory test.
2. The certification decision was unlawful because it considered only whether serious irreversible harm would arise. The court could not say that the Home Secretary would inevitably have reached the same result had the correct test been applied. The assessment required anxious scrutiny and had to distinguish the substantial public interest in permanent deportation from the less strong, though important, interest in temporary removal pending appeal.
3. The regulation 24AA guidance was unlawful because it directed case owners to seek certification wherever possible where serious irreversible harm would not result. The court declined to determine wider European-law questions that were unnecessary to the result. The effective-remedy challenge was rejected, consistently with the reasoning accepted in R (Masalskas) v Secretary of State for the Home Department [2015] UKUT 677 (IAC).
4. Permanent residence. A right of permanent residence required five years’ lawful residence, including compliance with the transitional scheme applicable to Romanian nationals. The claimant had not complied with that scheme and therefore had not established the status protected by regulation 15.
5. Detention. Although the threshold for detention under regulation 24(1) was met, that did not make detention lawful. The reasons had to provide a rational basis for concluding that detention was necessary to guard against a real risk of absconding or reoffending. The historic murder conviction and sentence, without evidence linking them to a present risk, were insufficient. The reasons concerning the claimant’s lack of ties, vulnerability and recovery from alcoholism were also unsupported or irrational. Detention from 24 March to 23 July 2015 was therefore unlawful.
6. The police detention overnight on 23 March was undertaken on behalf of the Home Office. The Home Office was accordingly responsible for that unlawful detention. The court declared the certification unlawful and held that the entire period of detention was unlawful, leaving consequential orders to be agreed.

First instance judicial review. The judgment records that the claimant’s separate deportation appeal was allowed by the First-tier Tribunal, and that permission to appeal was refused by both the First-tier Tribunal and the Upper Tribunal.