Challenging Home Office attempts to deport EEA nationals without an effective appeal right

Imogen Townley, a solicitor in our immigration department, writes about the legal challenges that can be brought against decisions to remove EEA nationals from the UK when they have appeals against deportation pending.Wilson Solicitors LLP is regularly instructed by EEA nationals in Regulation 33 challenges. Regulation 33 of the Immigration (European Economic Area) Regulations 2016 enables the Home Office to 'certify' a person's case so that they can be removed ahead of the resolution of their deportation appeal i.e. before a final decision has been reached on whether they should or should not be deported. This is significant because an ongoing appeal would usually act as a barrier to removal; but when Regulation 33 is applied it will not. Regulation 33 is applicable to EEA criminal deportation cases only.The EEA national served with the deportation decision will have a statutory 14 days in which to lodge an appeal. We often meet EEA national clients at our detention centre advice surgeries whose cases have been certified under Regulation 33. Often they will have lodged their appeals themselves, but are seeing their removals being enforced ahead of the listing. Removal before resolution of the appeal often poses a significant problem to our clients. Often the temporary removal from their life in the UK is disruptive and distressing, potentially leading to family separations and loss of employment, accommodation or reputation. Equally important is the fact that removal in the period leading up to the appeal significantly obstructs and limits case preparation and undermines the prospects of the substantive statutory appeal against deportation succeeding. In the case of Kiarie and Bvndloss v SSHD [2017] UKSC 42 the Supreme Court held that appealing while out of country was so unfair that it was unlawful. However, the Home Office position is that this judgement doesn't apply in EEA deportation cases, and the Home Office justify their harsher policy towards EEA nationals on the basis that temporary returns can be facilitated from EEA countries in order for Appellants to give evidence on the day of their appeals.We are regularly seeing examples of Regulation 33 being used against EEA nationals by the Home Office when we believe it is inappropriate, and with potentially damaging consequences. One such client was taken on by me in late 2018, facing removal in less than a week. This EEA national had been convicted of failing to comply with the unpaid work requirement of a community order in the magistrates’ court. He had been sentenced to 12 weeks imprisonment, and the Home Office were now pursuing him for deportation. In view of the case circumstances - that our client is a father of children in the UK and has worked here consistently since 2013, and in view of apparent errors regarding the nature of his offence in the deportation decision - we considered his appeal to have a very good chance of succeeding. However, if he had been removed and had been forced to prepare his appeal from his home country it is likely that the merits would have been significantly diminished. This was particularly due to the fact that, in this appeal as in many, we needed expert evidence prepared by an independent expert who would meet and assess the client, and these assessments need to be undertaken in the UK. It is wrong that the effect of Regulation 33 can be to undermine a person's chances of effectively responding to a decision to deport them from the country they have lawfully made their home, particularly when that decision is as flawed as the decision in this case was. Unfortunately this is not an uncommon situation. Further, if this client had been removed ahead of his appeal, he would have been separated from his children for an indefinite period of time while he waited for his appeal, and would have probably lost his job too. Fortunately we were able to prevent this client's removal by way of judicial review and we secured agreement from the Home Office that our client needs to remain within the UK for the duration of his appeal.Regulation 33 certification decisions must be challenged in judicial review proceedings, which are entirely separate from the statutory appeal against deportation. Across the firm we are seeing success in challenging Regulation 33 certifications for our clients. In some cases we have been arguing that certification under Regulation 33 is unlawful due to the specific facts of a client's case, while in other cases we have argued that the Regulation itself is unlawful. In our experience the Home Office usually settles these judicial review challenges by withdrawing the Regulation 33 certification before the arguments actually get before a High Court judge - which might suggest that they do know their policy is often difficult to defend in the circumstances of most cases.We are able to act for EEA nationals both in their judicial review against Regulation 33 certification, and in the statutory appeals against deportation. We can apply for legal aid for both these areas of work subject to a means and merits assessment. If a client does not qualify for legal aid we offer very reasonable private rates. If you have a similar case and you wish to discuss with us how we can help please email Imogen at i.townley@wilsonllp.co.uk or call her on 0208 885 7959.