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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lauzikas v The Secretary of State for the Home Department  EWHC 3215 (Admin) (16 December 2016)
Cite as:  2 CMLR 2,  2 CMLR 20,  EWHC 3215 (Admin),  WLR(D) 681,  1 WLR 1683
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JONAS LAUZIKAS
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Jack Anderson (instructed by GLD) for the Defendant
Hearing: 7th and 8th April 2016, further written submissions June 2016, September 2016.
Crown Copyright ©
MRS JUSTICE THIRLWALL :
The claim under European Law
The legal framework
"1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission."
Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on consideration of general prevention shall not be accepted."
Thus Member States have a broad discretion as to the method by which the protection is achieved.
(3) ….. an EEA national who has entered the UK…may be removed if -
(b) The Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21;
(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(5) where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation be taken in accordance with the following principles-
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; a person's previous convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration in the United Kingdom and the extent of the person's links with his country of origin.
(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person ("P") to whom [as here] regulation 24(3) applies, in circumstances where-
(a) P has not appealed against the EEA decision to which regulation 24(3) applies, but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or
(b) P has so appealed but the appeal has not been finally determined.
(2) The Secretary of State may only give directions for P's removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country of P's appeal, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.
(4) If P applies to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision, P may not be removed from the United Kingdom until such time as the decision on the interim order has been taken, except-
(a) Where the expulsion decision is based on a previous judicial decision;
(b) Where P has had previous access to judicial review; or
(c) Where the removal decision is based on imperative grounds of public security.
(5) In this regulation, "finally determined" has the same meaning as in Part 6.
The decision to remove
The position post suspension of enforcement of the decision to remove
(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)] of a decision to make a deportation order against him, [and he is not detained in pursuance of the sentence or order of a court], he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).
(5) A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation] and as to reporting to the police or an immigration officer] as may from time to time be notified to him in writing by the Secretary of State.
(6) The person to whom sub-paragraph (5) above applies are-
…; and(c) a person liable to be detained under sub-paragraph (2) or (3) above, while he is not so detained.""