Decker, R (on the application of) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752 (03 November 2017)

Decker, R (on the application of) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752 (03 November 2017)

The making of a deportation order under the Immigration Act 1971 does not require the subject to be present in the UK; however, the refusal to issue an EEA residence card was flawed as neither the Secretary of State nor the First Tier Tribunal applied the correct legal test under Regulation 21, failing to assess whether the appellant posed a genuine, present, and sufficiently serious threat affecting fundamental interests of society.

Citation
[2017] EWCA Civ 1752
Parties
Appellant: Arthur Obafemi Cecil Decker; First Respondent: Secretary of State for The Home Department; Second Respondent: The Upper Tribunal (Immigration and Asylum Chamber)
Jurisdiction
England and Wales
Judgment Date
03 November 2017
Procedural Posture
Judicial Review Appeal / Court of Appeal Judgment on Appeal From Administrative Court
Outcome
Appeal dismissed on the validity of the deportation order; appeal allowed on the EEA residence card issue; matter remitted for reconsideration by the Upper Tribunal.
Legal Topics
Deportation Orders, EEA Residence Cards, Citizens' Directive 2004/38/ec, Immigration Act 1971, Public Policy Grounds for Refusal, Judicial Review Procedure
Immigration Law European Union Law Administrative Law Deportation Orders EEA Residence Cards Citizens' Directive 2004/38/ec Immigration Act 1971 Public Policy Grounds for Refusal +1 more

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Parties

Arthur Obafemi Cecil Decker

Appellant

Secretary of State for The Home Department

First Respondent

The Upper Tribunal (Immigration and Asylum Chamber)

Second Respondent

Procedural Posture

Judicial Review Appeal / Court of Appeal Judgment on Appeal From Administrative Court

Legal Issues

  1. 1 Whether a deportation order is invalid if made while the subject is outside the UK
  2. 2 Whether the refusal to issue an EEA residence card applied the correct legal test under Article 27 of the Citizens' Directive and Regulation 21 of the 2006 Regulations

Ratio Decidendi

The making of a deportation order under the Immigration Act 1971 does not require the subject to be present in the UK; however, the refusal to issue an EEA residence card was flawed as neither the Secretary of State nor the First Tier Tribunal applied the correct legal test under Regulation 21, failing to assess whether the appellant posed a genuine, present, and sufficiently serious threat affecting fundamental interests of society.

Court Disposition

Appeal dismissed on the validity of the deportation order; appeal allowed on the EEA residence card issue; matter remitted for reconsideration by the Upper Tribunal.

Orders

  • The appeal on the validity of the deportation order is dismissed.
  • The appeal on the EEA residence card issue is allowed.