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

A regulation 33 certification under the Immigration (European Economic Area) Regulations 2016 is tied to the proposed removal that has not yet occurred. It cannot be reused to require an appeal against a later human-rights refusal to be brought from outside the United Kingdom. Paragraph 2 of Schedule 2 does not extend to a subsequent removal merely because the later claim would not have arisen but for the earlier deportation. A fresh certification may be made under sections 94 or 94B of the Nationality, Immigration and Asylum Act 2002. Section 31(2A) of the Senior Courts Act 1981 imposes a high threshold. It did not justify refusing relief where the proposed substitute certification required a different, higher test.

The appellant, a Portuguese national, was deported to Portugal following criminal convictions and later returned to the United Kingdom. After human-rights representations concerning his removal and private and family life, the Secretary of State refused his claim on 14 July 2020 and stated that any human-rights appeal had to be brought from outside the United Kingdom, relying on a certification made in 2018 under regulation 33.

The Upper Tribunal held that reliance on the earlier certification was unlawful but refused relief under section 31(2A) of the Senior Courts Act 1981. The Court of Appeal considered whether the 2018 certification covered the later removal and whether relief could be refused on the basis that the Secretary of State would probably have certified the claim under section 94(1) of the Nationality, Immigration and Asylum Act 2002.

1. Outcome. The Court of Appeal unanimously allowed the appeal and dismissed the cross-appeal.
2. Scope of the certification. Regulation 33 is directed to removal where the person remains in time to appeal, or where an appeal has been brought but remains undetermined. The reference in paragraph 2(1)(b) of Schedule 2 to “the removal” means the proposed removal for which directions were intended when certification was made, and which had not yet occurred. A later removal is not covered by that certification.
3. Construction of paragraph 2. The expressions “arises from an EEA decision” and “the consequences of an EEA decision” do not extend the provision through mere but-for causation to circumstances arising long after the earlier decision. The 2018 certification therefore could not prevent an in-country appeal against the 2020 human-rights refusal. The Secretary of State remained able to make a fresh certification under sections 94 or 94B of the Nationality, Immigration and Asylum Act 2002.
4. Section 31(2A). Section 31(2A) imposes a statutory obligation to refuse relief where it appears highly likely that the outcome would not have been substantially different if the complained-of conduct had not occurred, subject to the exceptional-public-interest provision in section 31(2B). It replaces the former discretion discussed in Simplex GE (Holdings) and another v Secretary of State for the Environment (1989) 57 P&CR 306. “Conduct complained of” is broad enough to include reliance on the earlier certification and failure to obtain a further one. The threshold remains high, and courts must avoid assessing the merits of the underlying public-law decision: R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860, R (Public and Commercial Services Union and others) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) and R (Plan B Earth) v The Secretary of State for Transport [2020] EWCA Civ 214.
5. Application. Although the Upper Tribunal identified weaknesses in the human-rights claim, it was not highly likely that the Secretary of State would have used section 94(1), because that provision requires the different and higher test that the claim be clearly unfounded. The Court therefore could not refuse relief under section 31(2A). The Court did not need to decide whether the First-tier Tribunal might have declined to entertain an appeal despite the absence of certification.

• Court of Appeal (Civil Division) — [2024] EWCA Civ 1421: appeal allowed and cross-appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — judgment dated 5 October 2023: reliance on the earlier certification was held unlawful, but relief was refused under section 31(2A) of the Senior Courts Act 1981.
• Administrative Court, King’s Bench Division — Heather Williams J transferred the substantive claim after finding the certification ground arguable on 21 October 2021. The Court of Appeal refused permission to appeal on other grounds on 27 May 2022.