Imafidon v Secretary of State for the Home Department

Detention for removal is lawful only where removal has a reasonable prospect of occurring within a reasonable period. A residence card evidences an EEA right of residence; it does not create that right. The right derives from the Immigration (European Economic Area) Regulations 2006 and may be proved by other evidence. The Secretary of State may determine an application by reference to the material submitted with it and may rationally refuse to reconsider a refusal after further evidence is produced. That discretion does not alter whether the applicant has acquired a permanent right of residence. Where evidence before the Secretary of State establishes that right, removal cannot lawfully proceed and detention for that purpose is unlawful. Decisions affecting the legality of detention must be reconsidered where necessary to avoid unlawful detention.

The claimant, a Nigerian national and former spouse of a German national, sought judicial review of decisions to detain and remove him while he pursued permanent residence under the Immigration (European Economic Area) Regulations 2006. His challenges to removal based on entitlement to permanent residence and an outstanding application were no longer pursued. The remaining issue was whether his detention became unlawful after he supplied evidence that his former wife had exercised treaty rights continuously for five years. The Secretary of State maintained that she could refuse to reconsider the earlier application and require a fresh application. The central question was whether that procedural position justified continued detention despite the claimant having acquired a permanent right of residence.

Claim allowed in relation to detention.

1. The Hardial Singh principles, illustrated by R (Lumba) v SSHD [2011] UKSC 12, require a reasonable prospect of removal within a reasonable period. Detention cannot lawfully continue where removal is barred by an acquired right of permanent residence.
2. The Secretary of State was entitled to refuse the claimant’s third application on the material then available. She also had discretion to reconsider that refusal or to require a fresh application. Any refusal to reconsider had to be exercised rationally and with regard to applicable policy.
3. That procedural discretion was distinct from the substantive question whether the claimant had acquired a permanent right of residence under regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006. Under article 25(1) of the Citizens Directive, possession of a residence card could not be made a precondition to exercising the right. The court applied the principle confirmed in Dias [2011] EU ECJ C-325/09.
4. By 16 July 2013 the Secretary of State had the evidence necessary to establish that the claimant had acquired permanent residence. Her letter treated the evidence as showing no barrier to removal, but that conclusion rested on the erroneous understanding that the former wife’s income was zero. The claimant could not lawfully be removed, so his continued detention after 16 July was unlawful.
5. The reasoning in R(Abdullah) v SSHD [2009] EWHC 1771 (Admin) did not require a different result. That case concerned an extended family member and a discretionary residence card, whereas the present case concerned acquisition of permanent residence. The court expressed no view on the wider implications of Abdullah.
6. The defendant was ordered to pay the claimant’s costs. The damages claim was adjourned pending possible agreement.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.