EU citizens are protected by EU law, High Court reminds government

The High Court has held that the Home Office trying to apply its “deport first, appeal later” policy to EU citizens is incompatible with European Union law. The case is Hafeez v Secretary of State for the Home Department & Anor [2020] EWHC 437 (Admin).

So what’s changed?

This will be a helpful decision for EU citizens facing deportation from the UK and those representing them. It makes it clear that EU law applies to all stages of the deportation process.

The Home Office can still certify cases and deport EU nationals before their appeals have concluded. However it needs to apply EU law when doing so.  

At the moment the test for certification is whether the person would face a real risk of serious irreversible harm if removed before the appeal is concluded. This test is based on the Human Rights Act and the person’s right to private and family life.

Now the test for certification is more stringent. The Home Office must demonstrate that:

1. The personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
2. Removal prior to conclusion of the appeal process is necessary on grounds of public policy, public security or public health;
3. The objective to be achieved by removing the person before conclusion of their appeal cannot be achieved by a less onerous method; and
4. The burden imposed by removal is not disproportionate to the benefits secured.

The decision must be based exclusively on the personal conduct of the individual concerned. Considerations of general prevention are not permitted. Previous criminal convictions cannot, in themselves, constitute grounds for removal.

This is a much more difficult test for the Home Office to meet. As a result, use of the “deport first, appeal later” power is likely to be used less frequently, and only in the most serious cases.