The Court of Appeal today overturned a High Court decision in the continuing battle waged by award-winning Notts firm, Instalaw, to clarify the law over the right of EU citizens to be protected from removal in this case for crimes committed by a young man when he was a child.  The Court of Appeal allowed his appeal and now the High Court must retake its decision.  The team at Instalaw, led by Stuart Luke, a legal aid lawyer of the year winner, instructed Becket Bedford of No5 as lead counsel with a junior from London chambers, Natasha Jackson.  The appeal was heard remotely and the Notts team ran their successful defence using the big screen at No5’s advanced video hearing and conference suite.

The case ensures the survival of a systemic challenge to the lawfulness of the Secretary of State’s continuing policy of excluding EU citizens and their family members from the UK in the period before their tribunal appeals can be heard.  The Secretary of State’s policy took a knock on 28 February 2020 when the High Court in the R (Hafeez) v SSHD [2020] EWHC 437 (Admin), [2020] 1 WLR 1877 in a first test case held that regulation 33 of the Immigration EEA Regulations 2016 had to be read down to comply with the Citizens Directive 2004/38.  As a result, the Home Office changed its Guidance from 3 April 2020. 

In this second test, the Court of Appeal has outlined the challenge that the Secretary of State still faces in order to comply with the law.  In R (Mendes) v SSHD [2020] EWCA Civ 924, Becket Bedford for the appellant claimed that Hafeez did not go far enough. David Blundell QC for the Secretary of State argued that the appellant’s submissions trespassed on the Secretary of State’s forbidden territory.  The dispute boils down to who has the decision to suspend removal pending deportation appeal to the tribunal.  Is it the Secretary of State or is it the court that must decide? If the Secretary of State is right the court is limited to a supervisory role. If Mendes succeeds, the Secretary of State’s role is exhausted after the making of a deportation order and any further decisions are left to the courts.  

On the particular facts of Mendes, it raises for the first time the important question whether there exists a statutory or common law duty, equal to the fundamental right which, Becket Bedford says, is found in EU law for the protection of children, which guarantees that minors should be legally represented when proceedings against them for their deportation are taken before they turn 18.