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

Where a person challenges a certificate under regulation 33, including an application for interim relief, regulation 27 must be applied and an EU proportionality assessment undertaken. This remains so although the certificate concerns removal pending an appeal. An appellate court may remit the application rather than decide it where the evidence is incomplete or determination would usurp the functions of the certifying authority or tribunal. A mandatory order requiring return after removal involves additional considerations, including the individual’s circumstances abroad, and requires appropriate evidence and submissions. Systemic challenges need not be determined where they do not arise directly on the facts.

The appellant, a Portuguese national, was made subject to a deportation order and a regulation 33 certification permitting removal pending an appeal. He was removed to Portugal and challenged the certification by judicial review, seeking a mandatory interim order requiring his return. Murray J refused that relief: [2019] EWHC 2233 (Admin). The appeal concerned whether the judge had applied the correct legal approach to interim relief and whether the Court of Appeal should determine the application itself or remit it for reconsideration.

Appeal allowed. Permission to appeal was granted. The order refusing interim relief was quashed, and the application was remitted to the Administrative Court for reconsideration.

1. Applicable proportionality exercise. In light of R (Hafeez) v Secretary of State for the Home Department [2020] EWHC 437 (Admin), the Secretary of State accepted, and the court held, that regulation 27 applied to an application for interim relief in judicial review proceedings challenging a regulation 33 certification. An EU proportionality exercise was therefore required. Murray J had neither considered nor performed that exercise. His approach was accordingly wrong in law, and the error was material.
2. Remittal rather than re-determination. The Court of Appeal was not in a fair position to decide the application itself. The parties differed on the relevance of the merits of the underlying deportation appeal. A merits assessment could also usurp the certifying function of the Secretary of State and the function of the First-tier Tribunal. The substantive judicial review issue involved factual questions about procedural fairness when the appellant was a child, and the proposed fresh evidence was late and had not been before Murray J.
3. Mandatory relief after removal. An order requiring the Secretary of State to facilitate return after removal involves considerations beyond those relevant to an order merely restraining removal. As discussed in R (Nixon and Tracey) v Secretary of State for the Home Department [2018] EWCA Civ 3 and R (QR (Pakistan)) v Secretary of State for the Home Department [2018] EWCA Civ 1413, the individual’s circumstances abroad and other relevant factors must be considered. The necessary evidence and submissions were not before the court.
4. The court left open the systemic challenge to the absence of jurisdiction in the First-tier Tribunal to grant interim relief. That issue did not directly arise because the appellant had applied to the Administrative Court and had pursued that route. The remitted application was to be reconsidered consistently with the judgment and the parties’ concessions. The court encouraged expedition by the Administrative Court, the First-tier Tribunal and the Secretary of State.

• Court of Appeal (Civil Division) allowed the appeal, quashed the refusal of interim relief and remitted the application to the Administrative Court.
• High Court, Queen’s Bench Division (Administrative Court) Murray J refused the application for interim relief. The decision is reported at [2019] EWHC 2233 (Admin).