HHD Secure release of EU National Unlawfully Detained
On 8th December 2015, Mr Blindu, a Romanian national was detained at Belfast Ferry Port. He was subsequently transferred to Dungavel Immigration Removal Centre in Scotland. Immigration officials alleged that Mr Blindu had entered the UK unlawfully following his apparent deportation on grounds of public policy, a decision taken at Heathrow Airport and allegedly notified to him by written notice on the 19th July 2015.
HHD were contacted by a distressed Mr Blindu on 15th December 2015. Written representations were forwarded to Immigration Enforcement. The Home Office were advised that the client was an EU national who enjoyed an initial right of residence for 3 months commencing on 8th December 2015 pursuant to regulation 13 of the Immigration (EEA) Regulations. It was contended that his removal from the UK and his detention were unlawful. No reply was received. On the 17th December 2015 emergency Judicial Review proceedings were lodged at the High Court in Belfast. Given the Christmas recess was imminent this case had to be dealt with the upmost of urgency. Shortly before the hearing was due to commence, the Home Office released the Mr Blindu on temporary admission to the UK.
As the case progressed a Notice dated 19th July 2015 was served upon us. The Home Office relied upon this Notice to show that the client had been deported from the UK on public policy grounds owing to a number of past convictions. Crucially, this Notice was not signed as having been served upon Mr Blindu himself. Mr Blindu was adamant that he had not received any such Notice and therefore was unaware of his deportation and any subsequent appeal rights.
The Judgement of the High Court delivered on 28th February 2018 provides an excellent summary of EU Law and in particular the rights of citizens of the EU and their family members to move and reside freely within the territory of the Member States. The Judgement provides excellent commentary on the following:-
1. Article 20 of the treaty on the function of the EU (TFEU) – every person holding the nationality of a Member State shall be a citizen of the EU. A citizen of the EU enjoys the right to free movement and a right to reside freely in the territory of the Member States (Article 20 [a] TFEU).
2. Council Directive 2004/38/EC – provides for the rights of citizens of the EU and their family members to move and reside freely within the territory of the Member States (Citizens Directive). Chapter 2 of the Citizens Directive provides for the rights of exit and entry. Article 6 expressly provides the citizen of the EU shall have a right of residence in the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport – see Bassey’s application [2011] NICA 67. Regulation 21 of the Immigration (EEA) Regulations 2006 – in relation to a decision taken on grounds of public policy or public security must be in accordance with the following principals;
a) The decision must comply with the principal of proportionality;
b) The decision must be based exclusively on the personal conduct of the persons concerned;
c) The personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat effecting one of the fundamental interests of society;
d) Matters isolated from particulars of the case or which relate to consideration of general prevention do not justify the decision;
e) A persons previous criminal convictions do not in themselves justify the decision
The judgement also provides excellent commentary on the high burden placed upon the State to inform EU Nationals of decisions that are made regarding their circumstances. At Paragraph 41 the Court states:
‘The central point, however, is that the service of the Notice of Decision is not a mere technicality. It is a fundamental document setting out the basis for an immigration decision and informing the recipient of various Appeal rights.’
The Court opines that any failure to serve such a Notice is contrary to Regulation 4 of the Immigration (Notices) Regulations 2003. In addition, the failure to serve a Notice is contrary to Article 30 of the Council Directive 2000/30/EC and therefore in breach of EU Law.
The Court ultimately found that Mr Blindu’s detention between the 8th December and the 22nd December 2015 was unlawful and further that the Decision to remove him from the UK in July 2015 should be quashed.
Charlene Dempsey who dealt this case recalls:
‘This was an extremely stressful case given the client was detained up until the 22nd December 2015. There was a real possibility that this man would have been detained, as it turned out unlawfully, over the Christmas period. Out team had to work extremely quickly to draft proceedings and have them lodged. Thankfully we managed to secure his release just before Christmas enabling him to return to his family.
We anticipate this judgement will be available on the Judiciary NI website in due course.