KRYSTOF KEDRA AGAINST THE ADVOCATE GENERAL FOR SCOTLAND
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 127
P252/15
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
KRYSTOF KEDRA
Petitioner;
against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent:
Petitioner: O’Neill QC; Caskie; Drummond Miller LLP
Respondent: Carmichael QC; Komorowski; Office of the Advocate General
2 September 2016
Introduction
[1] The Petitioner is a citizen of Poland. According to the petitioner he has been living in the United Kingdom since 2009. He is married and has four children. They normally live in Bradford.
[2] The petitioner has a criminal record. Between 1 March 1995 and 27 August 2003 he was convicted in Poland of offences involving personal violence, public disorder, theft and robbery. In particular on 25 September 2002 the petitioner was convicted at the Regional Court Tarnobrzeg, Poland of robbery and sentenced to 4 years 6 months imprisonment. On 11 June 2009 the petitioner accepted a caution in England and Wales for damaging or destroying another’s property. On 9 September 2009 the petitioner was convicted at Stratford Magistrates Court of battery and was given a conditional discharge for 12 months.
[3] On 5 December 2014 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 was sent to an address in Bradford. It 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).
[4] The petitioner was unaware of these decisions. In February 2015 he and his family went on holiday to Poland. On the family’s return to Manchester Airport on 25 February the petitioner was detained and he was refused entry to the UK. He spent some time in Dungavel detention centre but was subsequently released.
[5] The petitioner seeks a number of orders the effect of which would be to quash the deportation order and the decision to refuse the petitioner entry to the UK. There is no challenge to the Secretary of State’s decision to certify that removal before any appeal against the decision was finally determined would not be inconsistent with the petitioner’s human rights.
[6] The argument before me was restricted to two issues. The first was whether “service on the file” could be valid against a citizen of the European Union. The second issue raised by the respondent was that the petition was incompetent. The petitioner has another remedy namely a right of appeal to the First-tier Tribunal (FTT). By the time he was aware of the decision he was out of time to lodge such an appeal. However, the respondent argues that the petitioner could have applied out of time. She further argued that the FTT would be bound in the circumstances to have allowed an appeal out of time. Since the right of appeal has so far not been exercised, it is said that the petitioner has failed to exhaust his remedies. The petition is therefore incompetent and should be dismissed.
[7] Both parties lodged written notes of argument which record the submissions.
Service on the file
[8] Regulation 7 of the 2003 Regulations is in the following terms:
“7.—Service of notice
(1) A notice required to be given under regulation 4 may be—
(a) given by hand;
(b) sent by fax;
(c) sent by postal service in which delivery or receipt is recorded to:-
(i) an address provided for correspondence by the person or his representative; or
(ii) where no address for correspondence has been provided by the person, the last-known or usual place of abode or place of business of the person or his representative;
(d) sent electronically;
(e) sent by document exchange to a document exchange number or address;
(f) sent by courier; or
(g) collected by the person who is the subject of the decision or their representative.
(2) Where—
(a) a person’s whereabouts are not known; and
(b)
(i) no address has been provided for correspondence and the decision-maker does not know the last-known or usual place of abode or place of business of the person;
(j) the address provided to the decision-maker is defective, false or no longer in use by the person; and
(c) no representative appears to be acting for the person,
The notice shall be deemed to have been given when the decision-maker enters a record of the above circumstances and places the notice on the relevant file.
(3) Where a notice has been given in accordance with paragraph (2) and then subsequently the person is located—
(a) he shall be given a copy of the notice and details of when and how it was given as soon as practicable; and
(b) the tie limit for appeal under the Procedure Rules shall be calculated from the date the notice is deemed to have been given in accordance with paragraph (2).”
Submission for the petitioner
[9] The petitioner is in the UK not on sufferance but in exercise of his rights under EU treaties. Having been in this country for more than five years he has a permanent right of residence; article 16 of the EU Citizenship Directive 2004/38 and regulation 15(1) of the 2006 Regulations. He enjoys substantial protection against expulsion or exclusion from the UK and he has a right to equal treatment with other EU nationals; articles 28 and 24 respectively of Directive 2004/38. Accordingly he is to be treated as effectively within his own country in exercising treaty rights. The Secretary of State has however treated the petitioner as she would an alien with no right to reside in the UK under EU treaties.
[10] Service on the file is not an effective manner of service of official orders which could impede the petitioner’s free movement rights. It is contrary to the procedural protections which are afforded as a matter of EU law and common law constitutional principles to persons such as the petitioner exercising their EU free movement rights; R (Anufrijeva)v The Secretary of State for the Home Department and Another [2004] 1 AC 604 per Lord Steyn at paragraphs 26, 27-31. There is a strong presumption against the executive having the power to alter the right and duties otherwise owed to an individual (whether a UK national or other EU citizen) by virtue of an uncommunicated decision such as a note on file. It would only be where express and unequivocal provision has been made by Parliament to enable the executive to alter such rights. The Secretary of State in making regulation 7(2) of the 2003 Regulations is purporting to exercise the powers conferred on her by section 105 and section 112(1)-(3) of the Nationality Immigration and Asylum Act 2002. However, section 105(3) of the 2002 Act provides that “the regulations may make provision (which may include presumptions) about service.” Regulation 7(2) of the 2003 Regulations however makes provisions for deemed service on the file. A deeming provision is not a presumption since a presumption can be disapplied. Moreover the 2002 Act does not expressly and unequivocally allow for a departure from the Anufrijeva principal that “notice of a decision is required before it can have the character of a determination with legal effect”. It may be argued that regulation 7(2) of the 2003 Regulations provides an irrebuttable presumption and therefore is consistent with section 105 of the 2002 Act. However, that would not be consistent with the constitutional principle set out by Lord Steyn in Anufrijeva.
[11] As a matter of general principles of EU law actual notification of the decision is required before it can be effective. Secondary EU law requires to be applied consistently with the general principles of EU law directives. Directives such as Directive 2004/38 have to be interpreted and applied in a manner which is consistent with these general principles. In case C-101/08 Audiolux SA EA v Groupe Bruxelles Lambert SA (GBL) [2010] 1 CMLR 39 the Court of Justice of the European Union confirmed (at paragraph 63) that “the general principles of community law have constitutional status”. See also Advocate General Trstenjak in her opinion paragraphs 70-71.
[12] The respondent in her note of argument referred to certain case law of the Court of Justice relating to the recognition of judgments under Bruxelles 1 (EC) regulation 44/2001 concerning private law disputes between private parties and civil and commercial matters. However, it was inappropriate to draw an analogy from these cases to the position of the UK applying EU public law. In any event Bruxelles 1 case law only allows “summons by public notice” if the rights of those concerned are properly protected: see case C-420/07 Orams and Another v Apostolides [2011] QB 519 at paragraph 76 and Reeve v Plummer [2014] EWHC 4695 (QB) paragraphs 29 and 30. The right to individual notification of a decision is a general principle of EU public law just as much as it the principle of UK constitutional law; R (Anufrijeva) paragraph 29; case C-548/09 P Bank Melli v Council of the European Union [2011] ECR I-11381 per Advocate General Mengozzi at paragraph 50. Another general principle of EU law is the right to good administration encompassing the right of individuals to have their affairs handled fairly by the institution of the member state while acting within the ambit of EU law. That includes the right of every person to be heard before any individual measure which would affect them adversely is taken; article 41(2)(a) of the EU Charter of Fundamental Rights. The unfairness of the respondent’s practice of service on file was acknowledged by the respondent in R v The Secretary of State for the Home Department [2000] INLR 587 per the head note. In case C-605/12 HN v Minister for Justice Equality and Law Reform, Ireland ECLI:EU:C:2014:302 [2014] 1WLR 3371 at paragraphs 49-50 the Court of Justice confirmed that an individual could rely upon EU law general principles of fair and good administration in claims made against national authorities when they are acting within the scope of EU law. In case C-166/13 Mukraubega v Prefect of Police 5 November [2014] ECR I – NYR [2015] CMLR 41 at paragraph 46 the Court of Justice said that the right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to effect his interests adversely. Observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (paragraph 49).
[13] A further general principle of EU law is the right to effective judicial protection; Cā69/10 Diouf v Ministre du Travail, de l’Emploi et de l’Immigration [2011] ECR I-7151; ZZ (France) v Secretary of State for the Home Department [2013] QB 1136 (CJEU). The EU law general principles of effectiveness preclude a rebuttable presumption in R (NS (Afghanistan)) v Home Secretary [2011] ECR I-13905 QB 102 the Court of Justice at paragraph 134 noted that if member states were to decide to operate a rebuttable presumption they must observe the principles of effectiveness according to which the realisation of the rights conferred by European Union law may not be rendered practically impossible or if excessively difficult. In case C8/14 BBVA SA v Peñalva López 29 October [2015] ECR I-1-nyr the Court of Justice relied upon general principles of EU law notably the principle of effectiveness to find that a national rule which imposed a one month time limit on consumers raising new objections in ongoing mortgage enforcement proceedings on the basis of the alleged unfairness of contractual terms was contrary to EU law. Applying the same reasoning in this case the fact that the present regulation 7(3) of the 2003 Regulations provides for relevant time limits to run from the date of deemed service on the file even where the affected individual is wholly unaware of the decision at issue must be held to infringe the EU principle of effectiveness.
[14] The role of national court in applying EU general principles was discussed and set out by the Court of Appeal in England in Vidal-Hall and others v Google Inc (Information Commissioner intervening) [2015] EWCA Civ 311 [2015] 3 WLR 409 at paragraph 98. The court emphasised that in so far as a provision of national law conflicts with the requirements for an effective remedy in article 47 the domestic courts can and must disapply the conflicting provision.
[15] In conclusion on the EU law arguments the Secretary of State’s practice of “serving on the file” cannot be applied to the petitioner as an EU citizen seeking protection of his EU law right because to do so would contravene the EU law right to individual notification of a decision as well as the EU law general principles of fair and good administration, effective judicial protection and effectiveness. The deportation order pronounced against the petitioner on 15 January 2015 undoubtedly adversely impacted upon the petitioner’s EU law free movement rights. It was adopted and made effective before the petitioner had the opportunity to make himself acquainted with it and before he had a proper opportunity to assess its validity. The fact that the time limit for appealing against this decision ran from the date of the service on file means that in this case the appellant was deprived of the right to contest his legality before the First-tier Tribunal. The discretion of the First-tier Tribunal to allow an appeal out of time was insufficient protection to ensure that the petitioner’s EU law right to judicial protection before a national court is respected and protected.
[16] So far as the question as to whether the petition is competent, the general rule was that, where an alternative remedy exists, judicial review will be incompetent. However, for the general rule to apply the statutory remedy must be adequate and it is subject to exceptions; B Petitioner [2010] CSOH 64 per Lord Brodie paragraphs 51 and 52 and McGeoch v Scottish Legal Aid Board 2013 CSOH 6, 2013 SLT 183, again per Lord Brodie at paragraph 76. In this case the alternative remedy is not effective. It involves an out of country appeal by requiring the petitioner to return to Poland (because the Secretary of State has certified that the petitioner’s removal before any appeal against that decision was finally determined would be consistent with the petitioner’s human rights). Further and in any event the time limit for appealing to the FTT expired before the petitioner was made aware of the decision to deport him. The respondent argued that nonetheless there was no breach of any procedural protection under EU law because the FTT could still admit an appeal late under rule 20 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the Tribunal Procedure Rules). The respondent says that this power to admit late appeals has to be exercised in a manner which is consistent with the petitioner’s EU rights, in effect, relying on the principle of sincere co-operation set out in article 4(3) of TEU. The petitioner’s response was that just as member states cannot rely upon the EU law doctrine of direct effect against any claim to the effect that they have failed properly to implement the provisions of a directive, neither can the member states authorities rely on the “indirect effect” interpretive obligation of the state as a defence to a complaint of its failure to implement an individual’s right National law must conform to the EU law principle of legal certaincy; see Advocate General AG Alber in his opinion in case C-372/99 Commission v Italy [2002] ECR 875; case C-50/09 Commission v Ireland [2011] ECR I-873 [2011] PTSR 1122 at para 21.
[17] Accordingly the petitioner argued that the respondent cannot rely upon the general duties of national courts and tribunal to interpret and apply and where necessary disapply national law to ensure conformity with the requirements of EU law. Accordingly the respondent could not, compatibly with EU law general principle of effectiveness and the EU law requirement of legal certainty, rely upon an alleged failure to exhaust alternative remedies when national law does not afford the petitioner any right to the claimed alternative remedy.
Submissions for respondent
[18] The procedural rights of EU citizens concerning decisions to restrict their freedom of movement and residence are to be found exclusively in articles 30 and 31 of the EU Citizenship Directive 2004/38/EC. By contract articles 27-29 for the most part concern substantive law by setting the criteria and relevant considerations for determining whether an EU citizen’s rights can be restricted. Article 28 provides that the member states shall take account of considerations such as length of residence, age, health, family and so on but there is not requirement in article 28 or otherwise for prior intimation to the EU citizen that their expulsion is being considered in order to gather information on those matters. If a decision to expel a person on grounds of public policy or security is unwarranted in view of the citizen’s circumstances, that can be challenged by means of judicial review or appeal in terms of article 31. There is no independent procedural right arising from article 28.
[19] It follows that consistently with EU law, the first an EU citizen might know about his expulsion being considered, is upon intimation of the decision to him. The content of the notification required by article 30 discloses its purpose which is that individuals be provided with the information that they need in order render effective the procedural safeguard specified in article 31; see case C-300/11 ZZ (France) v Secretary of State for the Home Department [2013] QB 1136 at paragraph 48. Paragraph 2 requires the grounds for the decision to be stated. Paragraph 3 requires intimation of rights of appeal. Both requirements therefore serve the purpose of ensuring the right of appeal is effective. It follows that any form of notification consistent with EU citizens enjoying an effective right of appeal is consistent with the purpose of article 30. There are no requirements for notification set out in article 30 beyond prescribing aspects of its content and that the notification be in writing. It need not be done by personal service. The manner of notification is left to the member state.
[20] Apart from personal service, no form of service can exclude the possibility that the recipient has not in fact become aware of the contents of the notice. With service by post at someone’s address the recipient might be away from home and service on the representative leaves open the possibility that the representative might fail to pass the notice on. The fact that the method of service in domestic law does not ensure that it is brought to the immediate attention of the subject of the notice can be no fundamental objection in itself. Where, as here, the server of the notice remains under a continuing obligation to provide a copy as soon as practicable once the subject of the notice is located, it is more likely to effectively bring to the attention of the EU citizen the subject matter compared to other means of service which have met the approbation of the European Court of Justice such as service by public notice eg case C-292/10 G v Visser 25 May 2011 (2013) QB 168. There are important policy considerations which militate against implying into article 30(1) any requirement for personal service or any other particular means of service. Article 27 of the directive ensures that member states can expel those who could pose a danger to public policy, public scrutiny or public health. The procedural protections contained in articles 30 and 31 should not be interpreted in the manner that might frustrate a member state in protecting these important interests. The case of Singh v Secretary of State for the Home Department 1993 SC HL 1 provides a useful analogy. Consideration of the petitioner’s fundamental rights of defence do not lead to any other conclusion. As the time for appearing runs from the date of service rather than the date on which the EU citizen became aware of the decision, it is possible, as in this case, that time expires before the petitioner could possibly appeal but this can be no fundamental objection not least because other forms of service do not exclude this possibility but more particularly because of the FTT’s power to admit an appeal late. The FTT as an emanation of the state would be required to exercise its power to admit an appeal late consistently with the petitioner’s EU law rights. It remained open to the petitioner to lodge an appeal late and it will be for the FTT to decide whether such an appeal should be admitted. If the Tribunal refuse permission to appeal late in a manner that discloses an error of law including a breach of the petitioner’s fundamental rights of defence under EU law then that refusal can become subject to judicial review. There is no ground of challenge in the petition directed at the vires of the decision of the Secretary of State to certify that the petitioner’s expulsion before any appeal against the decision was determined would be consistent with the Secretary of State’s duty to act compatibly with the European Convention on Human Rights. In any event it is consistent with EU law. Unlimited protection against removal before the appeal is determined only in respect of a “expulsion” decision exists under the directive; see article 31(2). There is a general right to exclude a person pending their appeal or review; article 31(4). A person cannot be prevented from submitting his or her defence in person ie re-entering the territory for the purpose of appearing at the hearing unless inter alia the appeal or judicial review concerns a denial of right of entry to the territory. There cannot be implied some broader right to a substantive appeal under fundamental rights or general principles of European Union law in the absence of a submission that the directive is unduly restrictive and therefore unlawful. There is no ground of challenge in the petition directed to such an argument. In any event an out of country right of appeal is consistent with the petitioner’s rights and with the procedure requirements of the European Convention and Human Rights, article 8; are (Kiarie) v Secretary of State for the Home Department [2015] EWCA Civ 1020 paragraphs 63-71. As a matter of domestic law, the right of out of country appeal will exclude recourse to judicial review unless there are special or exceptional circumstances meaning that such an appeal is not an alternative remedy; MDMH Petitioner [2014] CSOH 143; R (Mehmood) v Secretary of State for the Home Department [2015] EWCA 744; R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831. There is no special or exceptional circumstance averred here.
Decision
[21] The petition was lodged before 22 September 2015 and accordingly the old rules apply. Rule of Court 58.3(2) states:
“An application (to the supervisory jurisdiction of the court) cannot be made ... if that application is made or could be made, by or appeal or review under or by virtue of any enactment.”
In the new rules the equivalent provision is Rule of Court 58.3(1) and is in broadly similar terms.
[22] I accept the proposition that an appeal or review under an enactment must be effective; see Lord Brodie in McGeough v Scottish Legal Aid Board at paragraph 76. Effectiveness would include considerations as to whether the right of appeal was so unduly onerous as to result in a denial of justice or a right of appeal or review which could not result in an effective remedy. Clyde and Edwards on Judicial Review in Chapter 2 gives examples of cases where judicial review has been allowed where it has been argued that there was an alternative remedy. But the principle is clear; an application to the officium nobile of the Court of Session is excluded where there are alternative remedies available to the petitioner; see West v Secretary of State for Scotland 1992 SLT 324 per Lord Hope at 329; O’Neill v Scottish Joint Negotiating Committee for Teaching Staff 1987 SC 90 per Lord Jauncey at pages 92 and 93.
[23] The following matters are common ground between the parties (a) there is a right of appeal to the FTT against the Secretary of State’s decision to make a deportation order and to refuse the petitioner entry into the United Kingdom; (b) that the petitioner is now out of time in submitting such an appeal (see rule 19(3)(b) of the Tribunal Rules; (c) that the petitioner could make an application to appeal out of time (rule 20(1) of the Tribunal Rules); and (d) that such an appeal would have to be made from outwith the UK (regulation 26(1)(a) of the 2006 Regulations).
[24] The petitioner contends that the ability to appeal to the FTT is not an effective one. In the first place he says that an out of country appeal is a further interference with his free movement rights and “contrary to basic principles of EU law”. This submission might have had more force if the petitioner had sought to review the Secretary of State’s decision to certify 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 the 2006 Regulations, regulation 24AA. I accept that the Secretary of State’s decision is an interference with the petitioner’s free movement rights. The question is whether it is a lawful interference.
[25] I do not accept that a right of appeal from outside the UK is contrary to the basic principles of EU law. Article 31 of the EU Citizenship Directive 2004/38/EC sets out procedural safeguards for EU citizens seeking review of any decisions taken against them on the grounds of public policy, public security or public health. It specifically allows for the exclusion of the individual pending the redress procedure, though it may not, except in the circumstances laid down, prevent the person submitting his or her defence in person.
[26] Out of country appeals will generally exclude judicial review; R (Sood) v Secretary of State for the Home Department [2015] EWCA Civ 831; MDMH Petitioner (2014) CSOH 143 per Lord Jones at paragraphs 38-43. And as the petitioner apparently acknowledges by his acceptance of the certificate under regulation 24AA, it is not contrary to his rights under ECHR.
[27] The petitioner submits that he does not have a right to appeal but must rely on the discretion of the FTT. That is said not to be of an effective remedy. I disagree. It is of course true that there is no automatic right to appeal and any appeal is now outwith the time limits. But 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.”
[28] I acknowledge of course that where a discretion is vested in a judicial or administrative body there can be no guarantee that it will be exercised in particular circumstances to give a remedy where one ought to be given. But nor should it be assumed that the body exercising the discretion will do so in a way that may be contrary to law. In this case the respondent makes a powerful submission that the FTT would be bound to exercise its discretion in accordance with EU law and ensure that the petitioner has access to a process which allows for redress. If it fails in that task then it may be subject to judicial review.
[29] For these reasons, in my opinion, the petitioner has failed to satisfy the requirements of Rule of Court 58.3(2) because an application could and should have been made for an appeal to the FTT. The petition is accordingly incompetent and I shall dismiss it.
[30] That disposes of the action. I should however deal briefly with the substantive arguments of service on file.
[31] Mr O’Neil in both his written and oral arguments has made powerful submissions about the fundamental nature or the rights exercised by the petitioner under EU Treaties under protections which he says are afforded in EU law and in domestic constitutional law. These submissions were supported by extensive reference to authorities. I am however unpersuaded that service on the file is unlawful and accordingly had it been necessary I would have found against the petitioner on this ground.
[32] There is of course no requirement for an EU citizen, exercising treaty rights to notify the Secretary of State or indeed anybody else in authority of their whereabouts in the United Kingdom. They need not register with the police or carry an identity card. As UK citizens we regard these features as being part of our civil liberties. It follows however that in considering whether an EU citizen should be excluded from the United Kingdom the Secretary of State may not know and may have no way of knowing the present whereabouts of that individual. She may not know whether the person is within the UK or has left either temporarily or permanently. If Mr O’Neil is correct in his argument then the Secretary of State is simply precluded from taking a decision where it cannot be notified to the person involved. That would include circumstances where exclusion from the United Kingdom was seen as imperative because of the security threat that that individual posed to the public. It is also true, as was submitted by Miss Carmichael, that no means of service can guarantee that the person affected will receive notification even if the person’s whereabouts are known to the Secretary of State at the time.
[33] I do not consider that it is right to characterise the nature of the rights being exercised by the petitioner under EU Treaties as akin to those being exercised by UK citizen. Certainly freedom of movement is one of the central tenets of the European Union. But the right of citizens of one EU member state to live and work in the territory of another is not absolute. These rights are regulated by the EU Citizenship Directive 2004/38/EC. Article 1 sets out the purpose of the Directive: It lays down conditions governing the exercise of the right of free movement and residence within the territory of the member states by EU citizens and their families. It is not necessary to go through these in detail but a perusal of the provisions shows that the right of free movement by EU citizens is not unfettered or unconditional.
[34] Section VI of the Directive deals with restrictions on the right of entry and the right of residence on the grounds of public policy, public security and public health. Article 27 sets out the general principles. Article 28 establishes protection against expulsion. Article 30 deals with notification of decisions and article 31 deals with procedural safeguards. The following points may be taken from these articles. First, there is no provision which requires notification of a proposed decision before it is taken by the member state. What is required is notification of the decision in writing with reasons. Secondly, there must be a right of redress and notification of that right with details of the court or tribunal to which an application may be made on the time limits that apply. Thirdly the individual may be excluded from the state pending the redress procedure. (The person cannot be excluded from presenting their defence in person except on what might be called security grounds).
[35] The petitioner does not challenge any of the provisions within the Directive and in the absence of such a challenge it is difficult to see how there has been a fundamental breach of EU constitutional law. In my opinion the reliance on the speech of Lord Steyn in R (Anufrijeva) is misplaced. The rationale for the proposition that notification of the decision is required before it can have legal effect is so that the affected person can challenge the decisions in the courts if minded to do so; paragraph 26. As Lord Steyn says “it is simply an application of the right of access to justice”. As I have discussed above, the petitioner has a right to make an application to appeal to the FTT out of time and it would be expected that that would be granted.
[36] Service on the file is permitted under UK legislation. Mr O’Neil contends that the 2003 Regulations in so far as it provides for service on the file is ultra vires on the basis that section 105(3) of the 2002 Act provides that regulations made under the Act may only make presumption about service. This is not an argument advanced in the petition. Nevertheless, I consider it to be unsound. A deeming provision is simply an irrebuttable presumption and I find nothing in the 2002 Act which precludes irrebuttable presumptions. The 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.
[37] Accordingly had it been necessary to do so for these reasons I would have found against the petitioner that service on the file was unlawful.
[38] I will dismiss the petition. I reserve the question of expenses.