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

An appeal against refusal of a residence card by an extended family member under the Immigration (European Economic Area) Regulations 2006 does not suspend removal. Regulation 29 gives suspensive effect to appeals concerning admission and removal, but not to an appeal against refusal of a residence card. The EEA appeal regime is distinct from the general appeal regime under the Nationality, Immigration and Asylum Act 2002. Removal directions made because an overstayer has exhausted earlier appeal rights are not transformed into an appealable removal decision by a later residence-card application. The duty to undertake an extensive examination under regulation 17(5) arises only where the applicant has proved that he is an extended family member in a durable relationship.

The claimant, an Iraqi national, sought judicial review after being removed to Iraq while pursuing an application for a residence card as the unmarried partner of a Polish national. The Secretary of State refused the application and stated that there was no right of appeal. An Immigration Judge initially rejected the appeal notice, but the Asylum and Immigration Tribunal later accepted that an appeal appeared to lie and agreed to determine it.

The claimant argued that the appeal suspended his removal under regulation 29 of the Immigration (European Economic Area) Regulations 2006, or under section 78 of the Nationality, Immigration and Asylum Act 2002, and sought an order requiring his return to the United Kingdom.

1. The court accepted that the claimant had a right of appeal under regulation 26(1). Regulation 26(3), which restricts appeals by a person claiming to be a family member or relative, did not apply to a partner relying on the extended-family-member provisions. The court therefore accepted the parties’ common analysis that the earlier rejection of the appeal was legally wrong.
2. That right of appeal was not suspensive. The definition of an EEA decision distinguishes decisions concerning admission, residence documents and removal. Regulation 29 expressly suspends removal only for appeals concerning refusal of admission and decisions to remove. It does not suspend removal during an appeal against refusal of a residence card. No provision of the Citizens Directive required a different construction.
3. The EEA appeal regime and the regime under the Nationality, Immigration and Asylum Act 2002 were distinct. The original removal directions arose because the claimant was an overstayer whose earlier asylum appeal rights had been exhausted. They were not themselves an appealable decision, and the residence-card refusal did not convert them into one. Section 78 therefore did not prevent removal.
4. The duty under regulation 17(5) to undertake an extensive examination arose only if the applicant could prove that he was an extended family member under regulation 8(5), including proof of a durable relationship. Whether that relationship existed was left for the Tribunal to determine.
5. The court declined to determine whether the appeal had real prospects of success or whether the partner was a qualified person. Since removal was lawful, the question of ordering return did not arise. The claim was dismissed. Permission to appeal was refused and the claimant’s costs were ordered to be assessed.

This was a first-instance judicial review. Permission to apply was initially refused on the papers, but Nicol J granted permission at an oral hearing on 23 April 2009. The substantive claim was then dismissed by the Administrative Court.