Milan Gabor, R (on the application of) v The Secretary of State for the Home Department

Under Immigration (European Economic Area) Regulations 2006, reg 29AA(3), temporary admission to attend an appeal must be granted unless the Secretary of State establishes that the applicant’s appearance may cause serious troubles to public policy or public security. This is not a proportionality exercise. The cost of detention or facilitation is irrelevant.

“Appearance” concerns the applicant’s presence in the United Kingdom for the purpose of attending the hearing. The assessment may take account of the risks arising from that presence. Detention will ordinarily prevent any serious risk to the public. Admission must also be early enough to permit proper instructions to be given, normally two or three days before the hearing.

The Slovak applicant had been removed from the United Kingdom on public-policy grounds. He appealed against that removal decision and sought temporary admission to attend the listed hearing in person.

The Secretary of State refused admission, relying on the applicant’s past offending, a perceived risk to the public and detainees, the possibility of non-compliance with removal directions, proportionality and the cost of detention. The applicant sought judicial review of that refusal.

The central issue was the proper construction and application of reg 29AA of the Immigration (European Economic Area) Regulations 2006, including the meaning of “appearance” and the time at which admission should be granted.

1. The application was allowed. The refusal could not stand because it applied tests which reg 29AA(3) does not permit.

2. Regulation 29AA(3) imposes a mandatory duty to grant temporary admission unless the Secretary of State can properly establish that the applicant’s appearance may cause serious troubles to public policy or public security. The decision-maker must not balance the value of personal attendance against the asserted risk. Nor is proportionality the test.

3. The relevant appearance is attendance at the hearing, but the provision necessarily concerns the applicant’s consequent presence in the United Kingdom. The Tribunal therefore declined to adopt the narrower construction in R (Kasicky) v SSHD [2016] UKUT 00107 (IAC). It agreed, however, that it will be very difficult to establish the required serious troubles where the applicant will be held in custody.

4. The asserted risks of offending against detention staff and of failing to comply with removal directions did not rationally establish the statutory exception. If detained, the applicant could be removed in custody after the hearing. The costs of detention were wholly irrelevant.

5. Admission must be granted sufficiently early for the applicant to give proper instructions and for any necessary preparation. Ordinarily this requires two or three days before the hearing, rather than the weeks sought in this case. A mandatory order required admission on 3 November 2016 and access for the applicant’s solicitors on 4 November.

Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s refusal of temporary admission was allowed. The applicant’s underlying appeal against removal was listed before the First-tier Tribunal or Upper Tribunal, but its outcome is not stated in the judgment.