Lauzikas v The Secretary of State for the Home Department

The suspension of an EU national’s removal pending an appeal prevents removal but does not invalidate the underlying removal decision or its justification. A consequential restriction on the right to work therefore need not be separately justified under EU law, provided it gives effect to the extant removal decision and is not based on general deterrence.

Where the First-tier Tribunal has granted immigration bail, it controls the grant, variation and conditions of that bail. That does not prevent the Secretary of State from imposing separate immigration restrictions under Schedule 3 to the Immigration Act 1971 on a person liable to deportation and released on bail. Such restrictions must not conflict with or frustrate the tribunal’s bail conditions.

The claimant, a Lithuanian national, was liable to deportation following his conviction for possessing an imitation firearm. The Secretary of State certified his removal appeal and imposed a notice restricting his residence, reporting and employment after the First-tier Tribunal released him on bail.

The claimant challenged the employment restriction under EU law and domestic law. He argued that suspension of removal required a separate proportionality assessment, that the Secretary of State lacked power to impose restrictions while tribunal bail subsisted, and that the restriction unlawfully frustrated the tribunal’s refusal to impose an employment condition.

1. EU law. The claimant’s right to work under Article 45(3) TFEU was qualified by limitations justified on grounds of public policy, public security or public health. The original decision to remove had been made on that basis, having regard to the claimant’s personal conduct and circumstances.
2. Suspending actual removal under Article 31 of the Citizens Directive and regulation 24AA(4) of the Immigration (European Economic Area) Regulations 2006 prevented removal only. It did not vitiate the removal decision or its justification. The Secretary of State was therefore not required to justify the employment restriction separately while the appeal was pending.
3. The restriction did not have to respond to a threat arising from the claimant’s employment itself. The relevant question was whether his personal conduct represented a genuine, present and sufficiently serious threat affecting a fundamental interest of society. General deterrence or prevention could not justify the restriction, but that was not the basis on which it was imposed.
4. Domestic law. The First-tier Tribunal’s bail power arose under paragraph 29 of Schedule 2 to the Immigration Act 1971. Its conditions existed to secure attendance and could be varied by the tribunal. The tribunal had correctly refused an employment condition because it was unnecessary to secure attendance.
5. Separately, paragraph 2(5) of Schedule 3 to the 1971 Act empowered the Secretary of State to impose residence, employment and reporting restrictions on a person liable to detention under paragraph 2(2) or (3), including a person released on tribunal bail. The notice did not alter the claimant’s bail or conflict with its conditions. The restriction was therefore within power and not unreasonable.
6. The constitutional objection based on R(Evans) v Attorney General did not arise because the Secretary of State had not overridden or frustrated the tribunal’s decision. The claim for judicial review was dismissed.

First-instance judicial review decision. No earlier decision in the same proceedings was identified in the judgment.