Hafeez, R (on the application of) v Secretary of State for the Home Department & Anor

A decision to remove an EEA national from the United Kingdom pending determination of an appeal is a separate measure restricting freedom of movement. It therefore falls within Article 27 of Directive 2004/38/EC. The decision must comply with EU-law proportionality, including an individualised assessment based on the person’s circumstances and conduct. A purely Human Rights Act test is insufficient. Regulation 33 of the Immigration (European Economic Area) Regulations 2016 must be read and applied consistently with those requirements. Guidance concerning interim removal must likewise reflect the enhanced procedural protection required to ensure that the appeal remains effective.

The claimant, an EEA national who had lived in the United Kingdom since childhood, was made subject to a deportation decision and Deportation Order under regulation 23(6)(b) of the Immigration (European Economic Area) Regulations 2016. The Secretary of State separately certified under regulation 33 that he could be removed before his appeal was finally determined, applying a Human Rights Act test and considering the risk of serious irreversible harm.

The judicial review challenged the legality of regulation 33 and associated policy guidance. The central issue was whether certification permitting removal pending an appeal was itself a measure restricting freedom of movement under Article 27 of Directive 2004/38/EC, thereby requiring individualised EU-law proportionality and necessity.

1. The claim was granted. A regulation 33 certification is a separate and distinct decision. Removal pending appeal is not an automatic consequence of a Deportation Order because, absent certification, an in-country appeal may proceed and removal may not occur.

2. Article 27 of Directive 2004/38/EC uses broad language. A measure includes any decision capable of curtailing the fundamental rights of free movement and residence. Article 31(4), which permits exclusion pending the redress procedure, does not remove that decision from Article 27.

3. The certification decision must therefore comply with Article 27, including proportionality understood in EU law. That requires a personalised assessment of the balance between the public interest and the claimant’s individual interests, together with consideration of whether the measure is necessary. The analysis must take account of the practical effect of removal on the ability to prepare and present an effective appeal.

4. The court was reinforced by R v Bouchereau and by the treatment of ancillary decisions in R (Jonas Lauzikas) v Secretary of State for the Home Department and R (on the application of) Nouazli v Secretary of State for the Home Department. Kiarie and Byndloss v Secretary of State for the Home Department demonstrated the importance of analysing the certification decision separately and scrutinising whether removal would weaken an arguable appeal.

5. The domestic Regulations were not unlawful in their entirety. They were capable of being read down under the Marleasing principle, or disapplied to the extent of incompatibility with EU law. The Secretary of State’s guidance required amendment to recognise the Article 27 safeguards and the relevant case law, including the need to ensure that interim removal does not render the appeal ineffective.