Emilio Branco-Bonfim, R (on the application of) v Secretary of State for the Home Department

The Court of Appeal considered two issues: (1) whether an earlier certification made under regulation 33(2) of the Immigration (European Economic Area) Regulations 2016 could be relied upon, by virtue of paragraph 2 of schedule 2 to those Regulations, to deny an in-country right of appeal against a later refusal of a human rights claim; and (2) whether relief should be refused under section 31(2A) of the Senior Courts Act 1981 because it was highly likely that the Secretary of State would have certified the later claim under section 94(1) of the Nationality, Immigration and Asylum Act 2002.

The court held that certification under regulation 33 relates to the particular removal in respect of which the Secretary of State was intending to give directions at the time of that certification, and does not cover a subsequent removal which actually takes place at a later date. Accordingly paragraph 2 of schedule 2 could not be used to rely on the 2018 certification to deny an in‑country appeal against the 2020 refusal of the human rights claim. The court also held that it could not be said to be highly likely that the Secretary of State would in the circumstances have used section 94(1) of the 2002 Act to certify the 2020 claim, so relief could not be refused under section 31(2A).

This was an appeal by way of judicial review concerning the status of appeal rights after deportation. The appellant, a Portuguese national removed from the United Kingdom in 2019 pursuant to an earlier deportation order, returned to the United Kingdom and in 2020 had a human rights claim refused. The Secretary of State’s 2018 deportation decision had contained a certification under regulation 33 of the EEA Regulations. In the Secretary of State's 14 July 2020 decision refusing the human rights claim the Secretary of State relied on paragraph 2 of schedule 2 to the EEA Regulations, asserting that the earlier 2018 certification meant the appellant's appeal against the human rights refusal had to be brought from outside the United Kingdom.

Procedural history:

• The appellant brought judicial review proceedings in the High Court. Heather Williams J found some grounds arguable and transferred the substantive claim to the Upper Tribunal (Immigration & Asylum Chamber).
• The Upper Tribunal (UT Judge Perkins) decided on 5 October 2023 that the Secretary of State was not entitled to rely on the 2018 regulation 33 certification to deny an in‑country appeal against the 2020 human rights refusal, but declined to grant relief on the basis of section 31(2A) of the Senior Courts Act 1981, concluding it was very likely any new decision would be certified under section 94(1) of the 2002 Act.
• The appellant appealed to the Court of Appeal.

Issues framed:

• Issue 1: Whether paragraph 2 of schedule 2 to the EEA Regulations allows reliance on a prior regulation 33 certification to deny an in‑country appeal against a later, separate removal decision.
• Issue 2: If not, whether relief should nevertheless be refused under section 31(2A) because it was highly likely that the Secretary of State would have certified the later claim under section 94(1) of the 2002 Act.

Court’s reasoning and conclusion:

• On construction, regulation 33 certification is targeted at the removal in respect of which directions are intended and which has not yet occurred; it does not extend to a subsequent, later removal. Paragraph 2 of schedule 2 therefore does not permit reliance on an earlier regulation 33 certification to prevent an in‑country appeal against a later human rights decision.
• The Secretary of State remained able, if she chose, to certify the later human rights claim under the appropriate provisions of the 2002 Act (for example section 94 or 94B), but the court could not assume she would have used section 94(1). Section 94(1) applies a different and stricter test (clearly unfounded) than that applied by regulation 33 or section 94B, and the evidence did not permit the Court to conclude it was highly likely the Secretary of State would have used section 94(1). Accordingly relief could not be refused under section 31(2A).

The court thus allowed the appeal and dismissed the cross‑appeal. The judgment also comments on the practical advantages of seeking resolution of arguable in‑country appeal rights at the First‑tier Tribunal in appropriate cases.

Appeal allowed; cross‑appeal dismissed. The court held that certification under regulation 33 of the EEA Regulations relates to the specific removal in respect of which directions are intended and does not cover a subsequent later removal, so the Secretary of State could not rely on the 2018 regulation 33 certification (via paragraph 2 of schedule 2) to deny an in‑country appeal against the 2020 human rights refusal. The court also held it was not highly likely that the Secretary of State would have certified the 2020 claim under section 94(1) of the 2002 Act, so relief should not be refused under section 31(2A) of the Senior Courts Act 1981.

Claim for judicial review commenced in the High Court (permission proceedings before Heather Williams J, 21 October 2021). Substance of the claim was transferred to the Upper Tribunal (Immigration & Asylum Chamber); hearing before UT Judge Perkins on 28 November 2022; Upper Tribunal decision dated 5 October 2023 (JR-2022-LON-000001) refusing relief under section 31(2A). Appeal to the Court of Appeal resulted in this judgment [2024] EWCA Civ 1421.