Exhausting remedies and right of appeal.

An applicant who sought to argue that he was denied the opportunity to exercise his right of appeal against deportation from the UK was ultimately unsuccessful before Lord Boyd at the Court of Session last week. See KRYSTOF KEDRA - [2016] CSOH 127

The petitioner is a Polish national ( married with 4 children ) living in the UK since 2009. He had criminal convictions both in Poland and the UK. A decision was taken in December 2014 to service a notice of liability to deport the petitioner in terms of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) regulations 19(3)(b) and 21 which was sent to the last known address. This was returned undelivered.  On 15 January 2015 a decision was taken to make a deportation order in terms of the above regulations.  The Secretary of State certified that the petitioner’s removal before any appeal against the decision was finally determined would be consistent with the petitioner’s human rights in terms of regulations 24AA.  That decision, and the certification, were “served on the file” due to the petitioner’s whereabouts being unknown, in terms of the Immigration (Notices) Regulations 2003 (the 2003 Regulations) regulation 7(2).  On the same day a deportation order was signed in terms of the 2006 Regulations, regulation 24(3) and the Immigration Act 1971 section 5(1).

Only on his subsequent detention did he become aware of the decision to deport. The questions before Lord Boyd were whether “service on the file” could be valid against a citizen of the European Union and secondly could he have exercised a right of appeal to the First Tier Tribunal albeit outwith of time.  Since the right of appeal had not been exercised, it was said that the petitioner has failed to exhaust his remedies.

The petitioner argued that he did not have an effective remedy as he did not have a right of appeal and thus was reliant on the discretion of the Tribunal to allow the appeal late. Lord Boyd dismissed that argument in very brief & simple  terms finding that

"the petitioner has the right to apply for an extension of time under rule 20 of the Tribunal Rules.  In my opinion the discretion given to the FTT under this rule seems designed to deal with situations such as this where, for reasons outwith the control of the applicant, he or she has been unable to present the appeal within the time allowed.  All other things being equal it is difficult to see on what grounds the FTT could refuse the extension of time in circumstances such as this.  Indeed it seems somewhat perverse for the petitioner to say in effect “because I do not have an automatic right of appeal to the FTT I will decline to exercise my right to apply to bring an appeal out of time.”

He also concluded that service on the file of the decision is permitted under UK legislation and rejected the contention that such service was ultra vires " as such argument that it is inconsistent with EU law rests on the proposition that it interferes with the rights of the petitioner to secure an effective remedy.  For the reasons outlined above, I do not accept that argument.  The petitioner has a right to challenge the decision".