Connell, R (on the application of) v Secretary of State for the Home Department

The automatic deportation scheme applies in principle to qualifying EEA nationals, but it must operate consistently with the separate EEA removal regime. Where deportation under the automatic scheme would breach an EEA national’s EU treaty rights, Exception 3 disapplies the duty to make a deportation order. The individual’s wish to return to another EEA state, or the fact that removal might ultimately be justified under the EEA regime, does not prevent Exception 3 from applying. The Secretary of State may therefore apply a policy governing the exercise of discretion in EEA removal cases, including a policy that Irish nationals will be deported only in exceptional circumstances, without that policy being incompatible with the automatic deportation provisions.

The appellant, an Irish national, was sentenced to 11 years’ imprisonment for serious sexual offences against a child. The Secretary of State considered his liability to deportation but decided not to deport him because his case did not satisfy the exceptional-circumstances threshold in the policy concerning Irish nationals.

The appellant’s judicial review claim was dismissed by the Administrative Court: [2017] EWHC 100 (Admin). He appealed only on the question whether that policy was ultra vires the automatic deportation provisions of the UK Borders Act 2007. The central issue was whether those provisions applied to EEA nationals and, if so, how they interacted with the separate regime in the Immigration (European Economic Area) Regulations 2006.

1. Appeal dismissed. The policy concerning deportation of Irish nationals was not incompatible with the UK Borders Act 2007.
2. Section 32 applies in principle to EEA nationals. The definition of “foreign criminal” covers any person who is not a British citizen and satisfies the specified conviction and sentence conditions. Section 33(1)(b), which expressly refers to Irish citizens, supports that construction.
3. Section 32(4) creates the statutory assumption that deportation is conducive to the public good. Section 32(5) therefore ordinarily requires the Secretary of State to make a deportation order under section 5, and by virtue of section 3(5), of the Immigration Act 1971.
4. That duty is expressly subject to section 33. Exception 3 applies where removal in pursuance of the deportation order would breach the foreign criminal’s EU treaty rights. For an EEA national, deportation on the general statutory assumption would conflict with the individualised and conduct-based requirements of the Immigration (European Economic Area) Regulations 2006. Exception 3 therefore disapplies the section 32(5) duty as a threshold matter, leaving deportation to be determined under the EEA regime.
5. Where removal is decided under regulation 19(3)(b), regulation 24(3) continues to apply the procedural machinery of section 5 of the Immigration Act 1971. The resulting deportation order remains discretionary and is not subject to the automatic duty that would otherwise arise under section 32(5).
6. Exception 3 applies irrespective of whether the EEA national seeks to exercise or has purported to waive EU rights, and irrespective of whether removal might be justified under the EEA Regulations. R v Kluxen [2010] EWCA Crim 1081 supported the conclusion that section 32 applies to EEA nationals. Its discussion of Exception 3 did not require determination. R (Mormoroc) v Secretary of State for Justice [2017] EWCA Civ 989 did not affect the issue because the present point had not been considered.

The Secretary of State was entitled to adopt a rational policy requiring exceptional circumstances before deporting Irish nationals. Lord Justice Flaux and Lady Justice Sharp agreed with Sir Stephen Richards.

• Court of Appeal (Civil Division): dismissed the appeal on the statutory-construction ground.
• Administrative Court: Mr Robin Purchas QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim on both the ultra vires and reasons grounds: [2017] EWHC 100 (Admin), also reported at [2017] 4 WLR 38.