R (on the application of Branco-Bonfim) (Respondent) v Secretary of State for the Home Department (Appellant)

Case summary

Case ID

UKSC/2025/0003

Parties

Appellant(s)

Secretary of State for the Home Department

Respondent(s)

Emilio Branco-Bonfim

Issue

Whether: (1) paragraph 2 of schedule 2 to the Immigration (European Economic Area) Regulations 2016 (the “EEA Regulations”) prevents a deported person from bringing an appeal from within the UK in circumstances where they have re-entered the UK, made a human rights claim, and had that claim refused; and (2) section 31(2A) of the Senior Courts Act 1981 (the “SCA”) requires the court to be satisfied that the exercise of a particular power is highly likely, or only that the relevant ultimate outcome is highly likely.

Facts

This appeal concerns the proper construction of the statutory regime for deportation. Mr Branco-Bonfim moved to the UK in 2002 as a child accompanied by his mother. He is a Portuguese national. After being sentenced to imprisonment for various offences (including violent disorder), he was served a ‘liability to deportation’ letter in January 2018. Following a further conviction (for possession of class A drugs with intent to supply), he was deported to Portugal on the basis that he posed a genuine, present and serious threat to the interests of public policy. The Secretary of State certified, under Regulation 33 of the EEA Regulations, that Mr Branco-Bonfim’s removal would not be unlawful on human rights grounds. In 2019, around two months after his deportation to Portugal, Mr Branco-Bonfim was found to have returned to the UK and was detained. In 2020, he was granted bail from immigration detention. Representations were made on Mr Branco-Bonfim’s behalf to the effect that his right to respect for private and family life under Article 8 of the European Convention on Human Rights would be infringed were he removed to Portugal. However, in July 2020 his human rights claim was refused. The letter recording that decision stated that there was a right to appeal but that this could only be brought from outside the UK. Mr Branco-Bonfim’s legal representatives contended that he could bring such an appeal from within the UK. Consequently, Mr Branco-Bonfim began judicial review proceedings in relation to the Secretary of State’s decision. The Upper Tribunal held that the Secretary of State’s reliance on paragraph 2 of schedule 2 to the EEA Regulations to refuse the human rights claim was unlawful. However, no relief was merited given that a new claim would still be refused, albeit under section 94(1) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”). Mr Branco-Bonfim appealed, and won in the Court of Appeal. The Secretary of State now appeals to the Supreme Court.

Date of issue

2 January 2025

Case origin

PTA

Appeal

Justices

Lord Lloyd-Jones

Lord Leggatt

Lady Simler

Permission to Appeal

Permission to Appeal decision date

24 February 2025

Permission to Appeal decision

Refused

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