The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2014 amended the Immigration Regulations 2006

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Regulation 24AA of the Immigration (European Economic Area) Regulations 2006

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2014 amended the Immigration (European Economic Area) Regulations 2006 so that an appeal against a deportation decision under regulation 19(3)(b) of the EEA Regulations will suspend removal proceedings, unless the SSHD has exercised her discretion to certify removal. The SSHD can certify removal if the person’s deportation before the conclusion of any appeal proceedings would not give rise to a real risk of serious irreversible harm or otherwise be unlawful under section 6 of the Human Rights Act 1998. If removal has been certified, it will only then be suspended if the person subject to removal has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.

The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK; rather, by amending regulation 29 of the EEA Regulations, it limits the suspensive effect of that appeal. So, whilst a person may lodge an appeal in-country, the lodging of such an appeal does not suspend removal from the UK, provided the removal is certified. The amended EEA Regulations also do not impact on the period allowed for voluntary departure, and a person liable to deportation pursuant to the EEA Regulations still has one month in which to leave the UK voluntarily before removal is enforced, although the one month period to leave voluntarily will not apply in certain cases, including where the person is detained pursuant to the sentence or order of any court (regulation 24(6)(c)).

Case law

Regulation 24AA is similar in wording to section 94B of the 2002 Act. The leading judgment on section 94B is Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020, which was handed down by the Court of Appeal on 13 October 2015. This guidance reflects the changes made to the section 94B guidance as a result of the judgment in Kiarie and Byndloss.

Section 55 duty

The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK, means that a child’s best interests are a primary consideration in deportation cases.

When considering whether to certify a case pursuant to regulation 24AA, the best interests of any child under the age of 18 whom the available information suggests may be affected by the removal decision must be a primary consideration. Case owners must carefully consider all available information and evidence to determine whether or not it is in the child’s best interests for the person liable to removal under regulation 19(3)(b) to be able to remain in the UK until the conclusion of any appeal. This is particularly relevant in considering whether removal pending the outcome of any appeal would cause serious irreversible harm to the child.

The case owner must also consider whether those interests are outweighed by the reasons in favour of certification in the individual case, including the public interest in effecting removal quickly and efficiently. Case owners must carefully assess the quality of any evidence provided in relation to a child’s best interests. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests or copies of documents.

Removal pending appeal and the Human Rights Act 1998

Case owners can only certify under regulation 24AA if satisfied that removal pending the outcome of any appeal would not be unlawful under section 6 of the Human Rights Act. This means that case owners need to consider whether removing a person before his or her appeal is finally determined would breach the ECHR. The following steps set out how to consider whether removing a person from the UK before their appeal is brought or finally determined would breach the ECHR. Which articles has the person raised either explicitly or implicitly, as grounds against removing him or her from the UK? The most common types of claims are based on Article 8 (right to respect for private and family life) and Article 6 (right to a fair trial, which also includes the right to participate in civil proceedings such as family court proceedings), but case owners need to be alert to any Convention rights which may be engaged by removal pending the outcome of an appeal.

When considering whether removing a person before his or her appeal is finally determined would breach the ECHR, case owners must consider whether removal for that limited period of time until the appeal is concluded would result in a real risk of serious irreversible harm. The serious irreversible harm test is derived from the test applied by the European Court of Human Rights (ECtHR) in immigration cases to determine whether to issue a ruling under rule 39 of the Rules of Court, preventing a signatory State from removing a foreign national from its territory. In the context of regulation 24AA, the test for certification is that removal pending the outcome of any appeal would not be unlawful under section 6 of the Human Rights Act and the absence of a real risk of serious irreversible harm is only one relevant factor.

The term “real risk” is a relatively low threshold. It has the same meaning as when used to decide whether removal would breach Article 3 of the ECHR. As explained in Considering human rights claims, in practice this is the same standard of proof as in asylum cases – a reasonable degree of likelihood. See section 5.2 of Assessing credibility and refugee status for further guidance on the standard of proof. The terms “serious” and “irreversible” must be given their ordinary meanings. “Serious” indicates that the harm must meet a minimum level of severity, and “irreversible” means that the harm would have a permanent or very long-lasting effect.

It will not normally be enough for the evidence to demonstrate a real risk of harm which would be either serious or irreversible – it needs to be both serious and irreversible. If the person claims that removal, or removal pending the conclusion of any appeal, would breach Article 8 of the ECHR, case owners must consider the effect of removal not only on the person liable to removal, but also on any other person whom the available evidence suggests will be affected by the person’s removal (for example, immediate family members such as a partner and/or children). By way of example, in the following scenarios where a person is removed before his or her appeal is determined, it is unlikely, in the absence of additional factors, that there would be a real risk of serious irreversible harm, or that there would otherwise be a breach of the ECHR, while a non-suspensive appeal is in progress (case owners must note that this is an indicative list and not prescriptive or exhaustive).

Human rights procedural protection

ECHR rights, such as Article 8, have a procedural aspect which means that a breach of that right can arise where there is no effective procedural protection. Procedural protection means access to an effective remedy by way of a mechanism to challenge a refusal decision. Whether a person has an effective remedy is relevant to whether it is lawful to certify a case under regulation 24AA. If a non-suspensive appeal means that the person cannot access a fair and effective appeal process, removal pending the final determination of the appeal will be a breach of section 6 of the Human Rights Act and the case cannot be certified under regulation 24AA. A non-suspensive appeal may be less advantageous to the person. That does not mean that it would be a breach of their Convention rights. An effective remedy does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness. The question to be answered is whether the non-suspensive appeal can be determined effectively and without obvious unfairness.

Process and consideration

When a notice of liability to deportation is served, the person is invited to make representations as to why they should not be removed prior to the final determination of their appeal. If no representations are made the case owner does not need to consider whether a non-suspensive appeal will meet the procedural requirements. Case owners do not need to make proactive enquiries, or proactively to investigate the circumstances of a person to establish whether they can have a fair and effective non-suspensive appeal. It is for the person to raise those points. If representations are made about why a person’s appeal should be suspensive of removal, they must be carefully considered. If, notwithstanding such representations, the claim is certified under regulation 24AA, that consideration must be set out in the decision letter.

Timing of certification

A certificate under regulation 24AA can only be applied after a removal decision is made under regulation 19(3)(b). Only once both decisions have been undertaken (and depending on the outcome of those assessments) should the case owner consider removal directions. Regulation 24AA is clear that a certification decision must be made before any consideration is given to the setting of removal directions. It is possible to certify under regulation 24AA at any stage in the process as long as the person has not exhausted their appeal rights. In practice, this means that if a case is not certified at the initial decision stage, and either party challenges the decision of the First-tier Tribunal (or that of the Upper Tribunal), the case owner must consider whether it is appropriate to certify the case before it is heard by the Upper Tribunal (or the Court of Appeal).

In this situation, case owners must consider whether it is appropriate in all the circumstances, including the factors set out in this guidance, to certify, including the public interest in effecting removal as quickly as possible, the stage the appeal has reached, the reasons for not certifying when the decision to remove was made and any other relevant factors. If, for example, the only reason for not certifying was that a travel document was not available, and one has since been obtained, the question of whether to certify should be considered again in line with this guidance. If it is decided to certify at any stage after the person has lodged an appeal, the case owner must provide prompt written notification to both the person to be removed (or their legal representative) and the relevant Court or Tribunal.

Reasons for decision

Reasons for the certification decision, including decisions not to certify, and a record of the peer review must be clearly set out in CID notes and on the case file. This is because a decision to certify (whether it is made at the same time as the decision to remove, or later on in the appeal process) can be challenged by judicial review and the Home Office may be required to provide records of each stage of the decision making process.

Dual certification

Where a person liable to deportation under regulation 19(3)(b) of the EEA Regulations has made a human rights claim in response to a notice served under section 120 of the 2002 Act, and that claim is refused, it will give rise to a right of appeal under section 82(1)(b) of the 2002 Act. This means that although the EEA removal may be certified under regulation 24AA such that lodging an appeal is non-suspensive of removal, there will be an in-country right of appeal against the refusal of the human rights claim unless the human rights claim is certified under section 96, section 94 or section 94B of the 2002 Act. Case owners should consider whether it is lawful and appropriate to certify the human rights claim under either section 96 or section 94 of the 2002 Act.

Where it is not appropriate to certify the claim under either section 96 or section 94, case owners should consider whether it is lawful and appropriate to certify the human rights claim under section 94B of the 2002 Act. Guidance on certification under section 94B of the 2002 Act is available here. It is only necessary to consider certification under section 94B where a human rights claim has been made and refused. It is also not necessary to certify where the deadline for appealing against the refusal of a human rights claim has passed and no such appeal has been brought. If the refusal of the human rights claim is not certified under section 96, section 94 or section 94B there will be an in-country appeal against the refusal of the human rights claim and consequently there is no benefit to certifying the EEA removal under regulation 24AA.

Appeals lodged from within the UK

Where a removal decision is taken pursuant to regulation 19(3)(b) of the EEA Regulations, the person can lodge an appeal against that decision while still in the UK, provided the relevant time limits are met. The lodging of an appeal does not suspend removal (subject to limited exceptions – see section 4 of this guidance). A person can also lodge an appeal against a decision taken pursuant to regulation 19(3)(b) from outside the UK provided the relevant time limits are met. Where a case is dual certified under regulation 24AA and section 94 or 94B (see section 4 of this guidance), if the person wishes to bring a section 82 appeal, he or she will only be able to do so after having left the UK.

In a dual certified case, if the person intends to bring appeals under both regulation 26 and section 82 of the 2002 Act, he or she can bring both appeals from outside the UK provided the relevant time limits are met. Alternatively, it is the person’s responsibility to alert the First-tier Tribunal (Immigration and Asylum Chamber) that he or she intends to bring a regulation 26 appeal from within the UK, and a section 82 appeal from outside the UK, and that they should be linked for a single hearing. However, it should not be necessary to bring two separate appeals. In the context of an appeal made under regulation 26, the Tribunal will also be able to consider a human rights claim raised in response to a section 120 notice (see Schedule 1 to the EEA Regulations). A person will not have an appeal under section 82(1)(b) of the 2002 Act where that person has not raised a human rights claim, as in such circumstances they could not have had a human rights claim refused. Further, a person can only raise human rights in the context of an appeal made under regulation 26 of the EEA Regulations where where the SSHD has given consent for him to raise human rights as a new matter (whether or not the human rights claim was made in response to a section 120 notice).