Augustas Selevicius, R (on the application of) v Secretary of State for the Home Department

A Deportation Liability Notice is not a “measure” or “decision” under Articles 27 and 30 of Directive 2004/38/EC. It is a notification of a possible future deportation decision and has no legal consequence engaging the right of free movement. The procedural safeguards in Article 30 therefore apply to the deportation or certification decision, not to the notice itself.

There is no universal duty to obtain further information from the state in which an EEA national was convicted. Further enquiries are required only where considered essential. Regulation 33 applies only where an appeal has been lodged in time, or the person remains within time to appeal. A later out-of-time appeal does not retrospectively activate the regulation.

The claimant, a Lithuanian national with limited leave under the EU Settlement Scheme, challenged decisions concerning his proposed deportation and detention. The Secretary of State had served a Deportation Liability Notice, detained him under regulation 32(1) of the Immigration (European Economic Area) Regulations 2016, made a deportation order, and certified removal under regulation 33.

The claimant argued that the notice was a measure requiring the information specified by Article 30 of Directive 2004/38/EC, that further enquiries should have been made of the Lithuanian authorities, and that the detention and certification decisions were unlawful. He also sought to rely on a late appeal against deportation. The central issues were whether the notice engaged Article 30 and whether regulation 33 applied despite the absence of an in-time appeal.

1. Permission and detention challenge. Permission to raise a new challenge based on Article 30 and detention was refused. The point was available from the outset, was raised only in Reply, and would have required further evidence and argument. Judicial review is a contained process and is not an iterative opportunity to introduce new grounds.
2. Status of the Deportation Liability Notice. The notice was neither a “measure” under Article 27 nor a “decision” under Article 30. A measure must be an action having legal consequences which engage or affect the right of free movement. Unlike the court recommendation in Bouchereau or certification considered in Hafeez, the notice was not a legally necessary step, did not itself render the claimant liable to detention, and did not curtail his right of free movement. Mendes was correctly decided. The reasoning in Costea was rejected insofar as it treated a notice as, or as capable of being, a measure.
3. Reasons and proportionality. The Secretary of State was not required to set out in the notice every matter appearing in internal case notes. The later deportation decision contained the legal framework, factual basis, remedies and opportunities for challenge. The decision-maker carried out a case-specific proportionality assessment under regulation 27, considering the convictions, sentences, domestic circumstances and public-protection concerns.
4. Further enquiries. Article 27(3) does not impose a routine or universal obligation to obtain sentencing remarks or other information from the state of conviction. Further enquiries may be made where essential. The convictions and sentences were sufficiently serious on their face, and the material before the Secretary of State supported a case-specific assessment. K did not require a different result.
5. Regulation 33. The certification requirement arose only where the person had appealed in time, remained within time to appeal, or had an undetermined appeal. The claimant had made no in-time appeal. An application to appeal out of time did not retrospectively reactivate regulation 33. The certification issue therefore fell away, and the detention challenge also failed.
6. The application for judicial review was dismissed.