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

A notice of liability to deportation is a preliminary notification inviting representations. It is not itself a deportation decision or an EU-law measure restricting free movement. Its validity is not affected by the possibility that deportation or immigration detention might later have occurred, where neither was intended or possible before the claimant became an adult. There is no blanket right to legal representation when such notice is served, although procedural fairness may require an adequate opportunity to make informed representations. Fact-sensitive challenges to the deportation decision should ordinarily be determined in the statutory appeal before the First-tier Tribunal. The Administrative Court may stay related judicial review proceedings pending that appeal. An interim mandatory order returning a person removed under an unlawful certificate is discretionary; there is no presumption in favour of return.

The claimant, a Portuguese national, was served with a notice of liability to deportation while detained in a young offenders’ institution and shortly before his eighteenth birthday. A deportation decision, deportation order and certificate authorising removal pending appeal were made on his eighteenth birthday. He was later removed to Portugal.

The Court of Appeal had held that the certificate was unlawful because it did not apply EU-law proportionality principles and remitted the interim-relief issue. The First-tier Tribunal subsequently extended time for the claimant to appeal against the deportation decision. The Administrative Court considered whether the liability notice was invalid, whether legal representation was required, whether the statutory appeal was the proper forum for the factual challenges, and whether the claimant should be returned pending that appeal.

1. Liability notice. The notice was not a deportation decision or a “measure” for the purposes of the Citizens’ Free Movement Directive. It merely notified the claimant of a possible future decision and invited representations. It did not itself interfere with free-movement rights. The notice was not invalid because it referred to possible deportation or detention before adulthood, since neither event was intended or capable of occurring in this case. There was no arguable bad-faith case.
2. Legal representation and fairness. There was no blanket legal obligation to provide legal representation when the notice was served. The Directive, the Charter, the UNCRC and common law did not establish such a right at that stage. However, the claimant was entitled to an adequate opportunity to make representations before the deportation decision. Whether that opportunity was adequate, having regard to his age, detention, understanding and available assistance, was fact-sensitive and remained for the First-tier Tribunal.
3. Proper forum. The First-tier Tribunal was better suited to determine the legality and factual basis of the deportation decision. The judicial review was therefore stayed, rather than dismissed, because it was not yet clear whether the statutory appeal would resolve all issues concerning the deportation order, certification, detention and removal.
4. Return pending appeal. Applying the fact-sensitive approach in R (Nixon) v Secretary of State for the Home Department [2018] EWCA Civ 3, there was no presumption in favour of return even though the original certificate was unlawful. The claimant could effectively pursue the appeal from Portugal, while return would engage substantial public-protection and detention concerns. The balance of injustice therefore strongly opposed a mandatory order.
5. The application to quash the liability notice and the interim mandatory injunction were refused. The judicial review was stayed with liberty to restore. The proposed amendments concerning unlawful detention and removal were acceptable in principle but required further particularisation.

1. Court of Appeal: In [2020] EWCA Civ 922 and [2020] EWCA Civ 924, the appeal concerning the certification issue was allowed, the earlier order was quashed, and the matter was remitted to the Administrative Court.
2. High Court (Administrative Court): The claim to set aside the liability notice was refused; the remaining judicial review proceedings were stayed pending determination of the statutory appeal.