Home Office cannot use the same certification decision in successive removals

In Branco-Bonfim v Secretary of State for the Home Department [2024] EWCA Civ 1421, the Home Office sought to remove a Portuguese man without giving him an in-country right of appeal, by relying on a certification decision relating to his deportation in 2019 rather than issuing a new certification decision. This led to the decision being quashed by the Court of Appeal.

Background

The Home Office have various powers to certify claims which can result in there being no right of appeal to the First-tier Tribunal, or to that appeal needing to be pursued from outside the UK.

Prior to Brexit, regulation 33 of the Immigration (EEA) Regulations 2016 allowed the Home Office to certify that removal before an appeal has been finally determined would not breach the person’s human rights. Section 94(1) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) allows the Home Office to certify a claim where it is clearly unfounded.

Since 28 June 2022, the result of this type of certificate is that there is no right of appeal. Before 28 June 2022, the result was that the appeal had to be pursued from outside the UK. Section 94B of the 2002 Act allows the Home Office to certify a human rights claim where removal before an appeal has been finally determined would not breach the person’s human rights. The result of this type of certification is that the appeal must be pursued from outside the UK.

Regulation 33 certificate

The appeal concerned a Portuguese national, Mr Branco-Bonfim, who was convicted of various criminal offences and issued with a deportation decision on 20 November 2018. The Home Office certified, under regulation 33, that removal whilst an appeal was pending would not breach Mr Branco-Bonfim’s human rights. He was deported on 17 September 2019.

Mr Branco-Bonfim returned to the UK and was detained in December 2019. He made a human rights claim that he should remain in the UK with the rest of his family. On 14 July 2020 that claim was refused.

The Home Office suggested that Mr Branco-Bonfim could appeal against this decision, but must do so from outside the UK due to the regulation 33 certificate issued back in 2018. The Home Office argued that the certification continued to apply.

The Court of Appeal disagreed:

…it is apparent that the scheme of certification under regulation 33 is directed to the removal of a person who is still in time for appealing, or who has appealed but whose appeal has not yet been determined. That is apparent from the wording of regulation 33(1) of the EEA Regulations itself which is dependent on the Secretary of State intending to give directions for removal but the applicant under 33(1)(a) who has not appealed against the EEA decision but would be entitled and “remains within time to do so”, or under 33(1)(b) has appealed but the “appeal has not been finally determined”. Where certification has occurred, a possible in time or existing appeal against the Secretary of State’s refusal of the human rights claim does not prevent removal of the appellant, so that the appellant may pursue that appeal out of country…

…”the removal” specified in paragraph 2(1)(b) of schedule 2, relates to the removal in respect of which the Secretary of State is intending to give directions, but which removal has not yet happened. This enables the Secretary of State to direct a removal notwithstanding the fact that a late human rights claim was made by the applicant and rejected and an appeal had not yet been brought or determined. This means that a second and subsequent removal, taking place after the removal which was intended by the Secretary of State when certification under regulation 33 took place, is not covered by the certification under regulation 33 and therefore paragraph 2 of schedule 2 (at [34] and [35])

As a result, the Home Office was not entitled to rely on the earlier certification to prevent Mr Branco-Bonfim from appealing the decision dated 14 July 2020 from within the UK.

What difference does it make?

The Home Office argued that this mistake did not matter as they could have, and would have, certified Mr Branco-Bonfim’s claim under section 94(1) of the 2002 Act which contains a different, and higher, test. The Upper Tribunal had agreed with this.

Oddly, the Home Office did not argue that they would have used the power in section 94B of the 2002 Act, which contains the same legal test to regulation 33. The Court of Appeal held that:

It is in these particular circumstances that I am unable to say that “it is highly likely” that the Secretary of State would have used a different statutory provision, namely section 94(1) of the 2002 Act, to certify the human rights claim refused in 2020 because the use of that statutory provision is not what might reasonably be expected as a substitute for certification… under regulation 33. Perhaps the Secretary of State’s position on this, which is not the position which might have been expected (namely to use the equivalent power in a different Act to certify), illustrates some of the reasons that courts should be cautious about straying into forbidden territory when exercising the power set out in section 31(2A) of the Senior Courts Act.

The power in section 31(2A) requires the court to refuse to grant relief if it appears highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. In England and Wales, this replaced the previous discretion to refuse to grant relief where the outcome would inevitably have been the same as the decision maker would necessarily have made the same decision. This continues to be the test in Scotland, where section 31(2A) does not apply.

Conclusion

The particular set of circumstances that occurred in this case are unlikely to happen again. The Home Office can, and no doubt will, use the power in either section 94 or 94B in future rather than relying on a previous certificate issued under regulation 33. However, the case provides a good example of the problems which can arise when decision-makers do not properly understand the law they are required to apply.