Connell, R (On the Application Of) v The Secretary of State for the Home Department

The automatic-deportation regime for foreign criminals in the UK Borders Act 2007 does not apply to deportation decisions concerning EEA nationals made under the Immigration (European Economic Area) Regulations 2006. Such decisions are governed by the stricter public-policy and public-security safeguards implementing EU free-movement rights. Regulation 24(3) requires the machinery of the Immigration Act 1971 to apply as if the person were liable to deportation under section 3(5)(a), but does not make the decision one made by virtue of that provision. A policy allowing Irish nationals to be deported only in exceptional circumstances was therefore lawful. Fairness required brief reasons for refusing deportation, but it did not require the decision-maker to identify every factor or define the threshold for exceptional circumstances.

The claimant, an Irish national and therefore an EEA citizen, was serving an eleven-year sentence for serious sexual offences against a child. He sought deportation to Ireland, including under the Early Removal Scheme. The Secretary of State declined to deport him under a policy restricting deportation of Irish nationals to exceptional cases.

Permission was granted to challenge the policy as ultra vires the UK Borders Act 2007 and to challenge the adequacy of the reasons given for refusing deportation. The central issues were whether the 2007 Act’s automatic-deportation provisions applied to EEA nationals subject to the 2006 Regulations, and whether the Secretary of State had discharged any common-law duty to give reasons.

1. Policy ground dismissed. The claim that the policy was ultra vires failed. The 2006 Regulations implemented the Directive’s protection of free movement. Removal of an EEA national could be undertaken only under regulations 19 and 21, including the requirements of proportionality, personal conduct, and a genuine, present and sufficiently serious threat.
2. Regulation 24(3) required a person liable to removal under regulation 19(3)(b) to be treated as if section 3(5)(a) of the Immigration Act 1971 applied. Section 5 and Schedule 3 of that Act consequently supplied procedural and supplementary machinery. The phrase “as if” meant that the removal decision was not made under, or by virtue of, section 3(5)(a).
3. The definition of “deportation order” in section 38(4)(c) of the UK Borders Act 2007 required both an order under section 5 of the 1971 Act and an order made by virtue of section 3(5). Accordingly, sections 32 and 33 of the 2007 Act did not impose an automatic duty to deport an EEA national removed under the 2006 Regulations. Exception 3 retained a coherent function for cases directly engaging the 1971 Act.
4. The Secretary of State could lawfully adopt a general policy that Irish national offenders would normally be deported only in exceptional circumstances, provided individual cases were considered under regulations 19 and 21. The policy was not inconsistent with the 2007 Act or the Directive.
5. Reasons ground dismissed. There was no right to deportation. Nevertheless, in the circumstances, fairness required reasons because the decision affected the practical conditions of the claimant’s sentence and followed sustained correspondence seeking deportation. The reasons could be brief. It was sufficient to state that the case had been considered under the published policy and was not sufficiently exceptional to merit deportation. The Secretary of State was not required to disclose every factor or define the circumstances that would satisfy the exceptionality threshold.
6. The claim for judicial review was dismissed.