Decker, R (on the application of) v Secretary of State for the Home Department & Anor

Decker, R (on the application of) v Secretary of State for the Home Department & Anor

The deportation order was valid despite the appellant being outside the UK when it was signed, as the Immigration Act 1971 does not require presence for validity. However, the refusal to issue an EEA residence card was flawed because neither the Secretary of State nor the First-tier Tribunal applied the correct legal test under Regulation 21, namely whether the appellant posed a genuine, present, and sufficiently serious threat affecting fundamental interests of society. This failure constituted an error of law, requiring the matter to be remitted for reconsideration.

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 High Court
Outcome
Appeal dismissed on the deportation order issue; appeal allowed on the EEA residence card issue.
Legal Topics
Deportation Orders, EEA Residence Cards, Citizens’ Directive 2004/38/ec, Public Policy Grounds for Refusal, Judicial Review, Error of Law, Discretionary Decisions, Proportionality, Extended Family Members
Immigration Law Administrative Law European Union Law Deportation Orders EEA Residence Cards Citizens’ Directive 2004/38/ec Public Policy Grounds for Refusal Judicial Review +4 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 High Court

Legal Issues

  1. 1 Whether a deportation order is invalid if signed 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 deportation order was valid despite the appellant being outside the UK when it was signed, as the Immigration Act 1971 does not require presence for validity. However, the refusal to issue an EEA residence card was flawed because neither the Secretary of State nor the First-tier Tribunal applied the correct legal test under Regulation 21, namely whether the appellant posed a genuine, present, and sufficiently serious threat affecting fundamental interests of society. This failure constituted an error of law, requiring the matter to be remitted for reconsideration.

Court Disposition

Appeal dismissed on the deportation order issue; appeal allowed on the EEA residence card issue.

Orders

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