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

Ordinary public-law principles governing interim relief apply to removal decisions under regulation 33 of the Immigration (European Economic Area) Regulations 2016. Regulation 33 does not exclude consideration of those principles. The possibility of an ongoing appeal does not, by itself, justify deferring removal where the statutory certification requirements are satisfied and there is no serious issue to be tried. The court may take account of the statutory facility for temporary re-entry to attend an appeal hearing. A complaint about procedural unfairness arising while the claimant was a minor was immaterial where the decisions challenged were made after he became an adult and he had substantial time to obtain legal advice.

The claimant, a Portuguese national, sought interim relief requiring the Secretary of State to facilitate his return to the United Kingdom after his removal to Portugal. The relief was sought in connection with a proposed judicial review challenging his regulation 33 certification, immigration detention and removal.

An earlier application had been refused on the papers by Lang J on 2 July 2019, after which the claimant was removed. On renewal, the central issues were whether regulation 33 excluded ordinary interim-relief principles, whether the certification or its implementation of the Free Movement Directive was arguably unlawful, and whether the claimant’s treatment before his eighteenth birthday required relief.

1. Application refused. The court agreed with the Secretary of State that ordinary principles applicable to interim relief apply to an application concerning removal under regulation 33 of the Immigration (European Economic Area) Regulations 2016. Regulation 33 does not exclude those principles.
2. The Free Movement Directive and the 2016 Regulations contemplate removal of an EU national while substantive redress is pursued. The claimant had not shown an arguable case that regulation 33 was unlawful or failed properly to implement the Directive.
3. The Secretary of State had given detailed reasons for the regulation 33 certification. There was no serious issue to be tried concerning the certification.
4. The claimant’s minority when the notice of liability to deport was served did not materially assist him. The decisions challenged in the judicial review were made after he had become an adult. More than nine months elapsed between the deportation order and removal, giving him ample time to obtain legal advice.
5. An ongoing appeal was not, by itself, a sufficient reason to defer removal. Regulation 41 of the 2016 Regulations, reflecting article 31(4) of the Directive, provided a mechanism by which the claimant could seek temporary re-entry to make submissions at an appeal hearing if permission to appeal out of time were granted.

The renewed application for interim relief was therefore refused.

• Administrative Court: Lang J refused the claimant’s urgent application for interim relief on the papers on 2 July 2019. The claimant was removed to Portugal the same day.
• Administrative Court: On renewal, Murray J refused the application for an order requiring the Secretary of State to facilitate the claimant’s return.