Byczek & Anor, R (on the application of) v Secretary of State for the Home Department

Judgment

MR JUSTICE JAY :

Introduction

The issue in these linked applications for judicial review, as Mr Ronan Toal has helpfully encapsulated it, is whether the Immigration (European Economic Area) Regulations 2006 (S.I. 2006 No. 1003) (“The EEA Regulations”) provide a lawful basis for denying the Claimants the rights they would have were they non-EEA citizens (i) to apply whilst in the United Kingdom for revocation of the deportation orders made against them, and (ii) to appeal whilst in the UK against the refusals to revoke the deportation orders.

Cranston J granted permission to both Claimants following a contested oral hearing, limited to the issue I have identified. He refused permission to apply for judicial review on other grounds, and he also refused the applications for a stay of consideration of those other grounds pending a decision of the Court of Appeal in BXS v SSHD [2014] EWHC 737 (Admin) .

In order to differentiate between the two Claimants I will refer to them by name. However their precise factual circumstances matter very little, because the points for current determination raise narrowly-defined issues of statutory construction within an EU context.

Essential Factual Background: Luis Miguel Oliveira

Mr Oliveira, a national of Portugal, has been exercising Treaty rights in the UK for some years. He also has a lengthy history of criminal offending. On 16 th November 2011 the Defendant decided to remove him from the UK exercising powers under regulation 19(3)(b) of the EEA Regulations.

Mr Oliveira exercised his statutory appeal rights to the First-tier Tribunal and thereafter to the Upper Tribunal. On 14 th February 2014 the Court of Appeal dismissed his appeal: see LO (Portugal) v SSHD [2014] EWCA Div 199. The Upper Tribunal’s conclusion, reversing that of the First-tier Tribunal, was held to be proportionate.

On 28 th February 2014 the Defendant signed a deportation order against Mr Oliveira. He then applied to have that revoked on the basis of what his solicitors characterised as a material change of circumstances, namely psychiatric or psychological evidence which purported to show that he was now at a low risk of re-offending. The Defendant refused to revoke her deportation order, and the reasonableness and/or proportionality of that decision does not arise as a free-standing issue in these proceedings, although it would arise in the event that Mr Oliveira could exercise an in-country right of appeal.

Essential Factual