Wandzel, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)

Certification permitting an EEA national’s removal before an appeal is heard is lawful where removal would not make the appeal ineffective or cause a breach of Convention rights. The assessment is fact-sensitive and must consider the practical arrangements available to the appellant, including any statutory right to return for the hearing, the destination country, the issues likely to arise, preparation difficulties and the opportunity previously given to make representations. Detention pending removal remains subject to the Hardial Singh principles. Its lawfulness must be assessed objectively at each relevant time, having regard to all circumstances, including the expected timescale for removal, diligence, risk of absconding and risk of reoffending.

The claimant, a Polish national with a substantial history of criminal offending, challenged his deportation arrangements and detention by judicial review. The Secretary of State had certified under regulation 33 of the Immigration (European Economic Area) Regulations 2016 that his removal before determination of his appeal would not breach section 6 of the Human Rights Act 1998.

The claimant argued, relying on R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, that removal would deny him effective access to his appeal. He also argued that his detention became unlawful because removal could not be effected within a reasonable period. Interim orders prevented removal and he was later released. The issues were whether the claim was academic, whether certification was lawful, and whether detention had breached the Hardial Singh principles.

1. Academic issue. The challenge to certification was not academic because quashing the certificate would continue to protect the claimant from removal before determination of his appeal. A separate challenge based on circumstances existing in January 2018 had fallen away.
2. Regulation 33. The lawfulness of certification fell to be assessed at the date of the decision. The Secretary of State should have anticipated that the claimant might appeal and was entitled to consider relevant later evidence, although the evidence of strong UK family ties was weak and inconsistent.
3. Effect of Kiarie and Byndloss [2017] UKSC 42. That decision did not make certification unlawful in every deportation case. The present case was materially different because regulation 41 provided a substantial protection: the claimant could apply to return to the UK to make submissions in person, and permission had to be granted unless his appearance might cause serious trouble to public policy or public security. He would return to a country where he had lived for 43 years, could communicate with representatives and prepare his appeal, faced less formidable appellate issues, and had received advance notice and an opportunity to provide relevant information.
4. The claimant had an arguable appeal and Convention rights to an effective appeal, and the Secretary of State bore the burden of demonstrating fairness and proportionality. Nevertheless, the public interest in removal, the statutory right to seek temporary admission, the practical feasibility of preparing and returning, and the claimant’s failure to provide relevant information justified certification. The certification was proportionate, fair and lawful.
5. Detention. The Hardial Singh principles, as stated in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, applied. Detention had to be assessed objectively on the facts known to the Secretary of State at each relevant time. In assessing a reasonable period, the court considered the factors identified in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and the significance of absconding and reoffending risks identified in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804.
6. There were no hard and fast rules that six weeks’ detention or a particular definition of imminence made detention unlawful. In November 2017 removal could reasonably be expected within a reasonable period, and the Secretary of State acted with reasonable diligence and expedition. After the January 2018 interim order and adjournment, the relevant prospective timescale was the permission hearing, not the adjourned appeal. It remained reasonable to anticipate that permission would be resolved within a reasonable period. The claim was dismissed.