Muhammad Saleem Rajput v Secretary of State for the Home Department

Regulation 29 of the Immigration (European Economic Area) Regulations 2006 suspends removal only where the appeal concerns admission or removal. It does not suspend removal where the appeal concerns refusal of a residence card. Regulation 15B preserves or deems residence for limited purposes; it does not itself confer a right of residence or create an in-country appeal. The Nationality, Immigration and Asylum Act 2002 and the 2006 Regulations operate in parallel. A person subject to an existing removal decision under the 2002 Act must claim any later in-country appeal right under section 92(4). Failure to do so means that section 78 does not prevent removal. A removal following an earlier removal decision is not transformed into a removal under the EEA Regulations merely because a residence-card application or marriage has intervened.

The claimant, an overstayer, was subject to a removal decision under section 10 of the Immigration and Asylum Act 1999, following an immigration decision under the Nationality, Immigration and Asylum Act 2002. His human rights claim was refused and certified as clearly unfounded. After marrying an EEA national, he applied for a residence card. The Secretary of State refused the application on the basis that the marriage was one of convenience, detained him and removed him while his appeal against refusal of the residence card remained unresolved.

He sought judicial review, declarations, mandatory return and damages. The central issues were whether the pending residence-card appeal suspended removal, whether the EEA Regulations or section 78 of the 2002 Act prevented removal, and whether the detention and removal breached domestic, EU or Convention rights.

Application dismissed. The claimant had no arguable case.

1. Regulation 29(3) of the Immigration (European Economic Area) Regulations 2006 was not engaged. The appeal was against refusal of a residence card, not against an EEA decision to remove him. Following R (on the application of Abdullah) v Secretary of State for the Home Department [2009] EWHC 1771, the suspensory provisions did not extend to that category of appeal.
2. Regulation 15B did not confer an independent right of residence. Its function was to deem residence to continue for limited purposes, including the computation of residence periods. It did not convert the claimant’s residence-card appeal into an in-country removal appeal.
3. The 2002 Act and the 2006 Regulations operated in parallel. The existing removal decision under the 2002 Act remained effective. The claimant could have sought an in-country appeal under section 92(4) by claiming and establishing that the marriage was genuine, but he did not do so.
4. The one-month procedural protection in Article 30 of Directive 2004/38/EC was satisfied because more than a month elapsed between the earlier removal decision and removal. The later refusal of the residence card was not itself a removal decision.
5. Section 78 of the 2002 Act did not apply because the claimant had not brought an in-country appeal against the relevant immigration decision. The remaining arguments concerning free movement, proportionality, detention, Article 8 and mandatory return therefore failed.

The judgment states that permission had previously been refused on the papers by John Howell QC sitting as a Deputy High Court Judge. The renewed application for permission to seek judicial review was dismissed.