Said Aitjilal, R (on the application of) v The Secretary of State for the Home Department

For the purposes of regulation 24(5) of the Immigration (European Economic Area) Regulations 2006, the two-year period begins when the deportation order itself is made. A decision or notice expressing an intention to deport is merely preparatory. It does not amount to an expulsion order and does not trigger the duty to reassess whether removal remains justified.

A person has a right of appeal against the decision to make a deportation order, rather than against the deportation order itself. Periods of imprisonment break the continuity of residence required for the enhanced ten-year protection against removal.

The applicant, a Moroccan national and family member of an EEA national, challenged by judicial review a deportation order signed on 25 August 2015. The Secretary of State had notified him in March 2013 of her decision and intention to deport; his statutory appeal against that decision was dismissed by the First-tier Tribunal and permission to appeal was refused.

He contended that more than two years had elapsed since the 2013 notification. He submitted that Article 33 of Council Directive 38 of 2004 and regulation 24(5) of the Immigration (European Economic Area) Regulations 2006 required a fresh assessment before the 2015 order was made. He also claimed a further appeal right and ten-year residence protection.

1. The application for judicial review was dismissed. Regulation 24(5) applies only where a deportation order has been made and the person has not been removed during the following two years. The relevant period therefore began on 25 August 2015, when the order was made, rather than when the earlier notice of intention to deport was served.
2. English immigration law distinguishes a decision to make a deportation order from the order itself. The former is a preliminary notification of the executive's intention. The latter is the executory measure which effects expulsion and is the domestic-law equivalent of an expulsion order for the purposes of Council Directive 38 of 2004.
3. Accordingly, neither Article 33 nor regulation 24(5) required a reassessment of changed circumstances before the 2015 order. The Tribunal added that the conclusion would be the same even if the Directive were directly effective.
4. Under regulation 19(3)(b), it is the decision to make the deportation order that is a relevant decision attracting an appeal. The applicant had exercised and exhausted that appeal right. Regulation 24A left revocation as the available route, but an application for revocation could only be made while outside the United Kingdom.
5. The applicant could not establish ten years' continuous residence for Article 28(3) and regulation 21(4). Applying the approach in C v SSHD [2010] EWCA Civ 1406, and the cited CJEU authorities, imprisonment breaks continuity. The enhanced requirement of imperative grounds of public security therefore did not arise.

The applicant was ordered to pay the respondent's costs, to be assessed if not agreed. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): The application for judicial review was dismissed.
• First-tier Tribunal: The applicant's appeal against the 2013 decision to deport was dismissed. Permission to appeal to the Upper Tribunal was refused.