ROMAN KASICKY (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Regulation 29AA(3) of the Immigration (European Economic Area) Regulations 2006 creates a presumption that a removed EEA national may return temporarily to make submissions in person at an appeal hearing. The exception applies only where the person's formal appearance in the appeal process, including necessary travel to and from the hearing, may cause serious troubles to public policy or public security.

"Appearance" does not mean the person's general presence in the United Kingdom. In deciding whether the exception applies, the Secretary of State must consider available measures, including detention and conditions, which may manage or reduce the relevant risk. Those measures do not automatically eliminate the risk.

The applicant, a Slovak national who had been removed under a deportation order, appealed to the First-tier Tribunal against that order. He applied on three occasions for temporary admission to the United Kingdom so that he could attend the appeal hearing and make submissions in person under regulation 29AA of the Immigration (European Economic Area) Regulations 2006.

The Secretary of State refused the applications on public-policy and public-security grounds. The applicant brought judicial-review proceedings challenging those refusals. The central issue was the proper interpretation of regulation 29AA(3), particularly the meaning of “appearance” and whether risk-management measures were relevant to the statutory exception.

1. Judicial review was granted. The refusals of temporary admission under regulation 29AA were quashed. The Secretary of State was required to grant temporary admission so that the applicant could make submissions in person at his appeal hearing.
2. Regulation 29AA implements article 31.4 of the Citizens Directive 2004/38/EC. Its starting point is a duty to grant permission. The exception in regulation 29AA(3) must be construed by reference to its statutory language, rather than any wider wording in departmental guidance.
3. “Appearance” means formal attendance in the appeal process for the purpose of making representations before the court or tribunal. It includes the practical journey to and from the hearing. It does not mean the person's general presence in the United Kingdom. The standard guidance wording referring simply to a person's “presence” therefore expressed the exception too widely.
4. The prospect of detention or restrictive conditions does not by itself remove a risk of serious trouble to public policy or public security. Nevertheless, because re-admission is presumed, the means available to manage and reduce the risk are relevant factors which the Secretary of State must take into account.
5. The decisions did not address any risk arising from the applicant's appearance at, or in connection with, the hearing. They also failed properly to consider available risk-management measures, including the evidence concerning risk in detention. They were unlawful for failure to take relevant considerations into account. After three unsuccessful opportunities to establish the exception, and given the urgency, the Tribunal concluded that the exception did not apply and made the consequential order.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review of the Secretary of State’s refusals under regulation 29AA was granted. The refusals were quashed and temporary admission was ordered.
• Related proceedings: an earlier judicial-review challenge to certification under regulation 24AA was refused permission by Patterson J. The applicant was then removed to Slovakia. That proceeding did not determine the present challenge to the regulation 29AA refusals.