Bilal Ahmed, R (on the application of) v The Secretary of State for the Home Department

An appeal against refusal of an EEA residence card is not, merely because it may be lodged from within the United Kingdom, suspensive of removal. Immigration (European Economic Area) Regulations 2006, reg 29, and Nationality, Immigration and Asylum Act 2002, s 78, distinguish a permitted in-country appeal from a statutory right to remain while it is determined.

Former s 92(4)(b) applied only where the appellant is an EEA national or family member. It did not give an in-country appeal merely because family-member status was disputed. A judicial review of removal does not require the court to determine that factual dispute. It succeeds only if the Secretary of State’s reasonable suspicion of a marriage of convenience is unlawful on ordinary public-law principles.

The applicant, a Pakistani national whose student leave had expired, married a Romanian national and applied for an EEA residence card. Following separate interviews, the Secretary of State concluded that the marriage was one of convenience, refused the application and made a removal decision under s 10 of the Immigration and Asylum Act 1999.

He appealed the residence-card refusal to the First-tier Tribunal and sought judicial review of removal. He contended that the EEA appeal, or an appeal against the s 10 decision under former s 92(4)(b) of the Nationality, Immigration and Asylum Act 2002, prevented removal until the marriage issue had been factually determined.

The central issues were whether either appeal was suspensive and whether judicial review had to determine whether the marriage was one of convenience.

1. The application was dismissed. The applicant had no legal entitlement to remain in the United Kingdom while pursuing his appeal against refusal of an EEA residence card.

2. The Tribunal followed R (Abdullah) v Secretary of State for the Home Department and Asylum and Immigration Tribunal [2009] EWHC 1771 (Admin). Regulation 29 of the Immigration (European Economic Area) Regulations 2006 gives suspensive effect to specified appeals against refusal of admission and removal decisions. It does not do so for an appeal against refusal of a residence card. The absence of a bar on lodging an appeal from within the United Kingdom does not create a right to remain to prosecute it.

3. The contrary statement in LO (Partner of EEA national) Nigeria [2009] UKAIT 00034 was obiter and per incuriam. The earlier tribunal had not been referred to reg 29 or to the fact that s 78 of the Nationality, Immigration and Asylum Act 2002 was not applied to EEA appeals by Schedule 1 to the Regulations.

4. Article 31 of Directive 2004/38/EC concerns procedural safeguards for Union citizens and family members whose existing rights are restricted on public-policy, public-security or public-health grounds. It does not apply to a person challenging a decision that he is not a family member. Article 47 of the Charter did not require a general suspensive appeal right.

5. Former s 92(4)(b) applied where the appellant actually is an EEA national or family member; “is” could not be read as “may be”. The factual issue of family-member status was for the First-tier Tribunal on the EEA appeal or any removal appeal, including if conducted after removal.

6. Judicial review remained available on ordinary public-law principles. The Secretary of State needed a reasonable basis to suspect a marriage of convenience, not a prior judicial determination of that issue. The interview material plainly supplied such a basis, and no irrationality or other unlawfulness was shown.

• Upper Tribunal (Immigration and Asylum Chamber): Permission for judicial review was initially refused, but was granted after an oral hearing. The substantive judicial-review application was dismissed.
• First-tier Tribunal: In parallel, the Upper Tribunal panel sat as a First-tier Tribunal panel to hear the applicant’s appeal against refusal of the residence card. The outcome of that appeal is not stated in the judgment.