Ahmed, R (On the Application Of) v Secretary of State for the Home Department

An appeal against refusal of an EEA residence card has no suspensive effect under the Immigration (European Economic Area) Regulations 2006. Regulation 29 gives suspensive effect to appeals concerning refusal of admission and removal, but not refusal of a residence card. The omission indicates a deliberate legislative choice. The ability to lodge an appeal from within the United Kingdom does not create a right to remain to pursue it. Article 31.4 of Directive 2004/38/EC does not assist a person who has not established that he is an EEA family member. Where removal is based on overstaying, the existence of the removal power does not depend on a precedent fact requiring judicial determination of family-member status. The appropriate challenge is ordinary public-law review alongside the statutory merits appeal.

The appellant, a Pakistani national, entered the United Kingdom with leave as a Tier 4 student and later married a Romanian national. He applied for an EEA residence card, but his leave expired and the Secretary of State concluded that the marriage was one of convenience. He was detained and served with a removal decision under section 10 of the 1999 Act. His residence-card application was refused, and he appealed to the First-tier Tribunal.

He brought judicial review proceedings in the Upper Tribunal, arguing that his statutory appeal against refusal of the residence card prevented removal. The Upper Tribunal dismissed the claim. The appellant was not removed, and his residence-card appeal was later dismissed. The central issues were whether the appeal had suspensive effect, whether he had an in-country right of appeal against removal, and whether family-member status was a precedent fact.

The Court of Appeal unanimously entertained the appeal despite its having become moot, because the issue was important and arose with some frequency. The appeal was dismissed.

1. Suspensive effect. Under the Immigration (European Economic Area) Regulations 2006, refusal of a residence card is an EEA decision under regulation 2(1)(b). Regulation 29(2) gives suspensive effect to appeals concerning refusal of admission, and the provisions concerning removal give suspensive effect to removal appeals. No equivalent protection is provided for an appeal against refusal of a residence card. The structure of the Regulations therefore shows an intention to deny such an appeal suspensive effect. This conclusion accorded with Abdullah, R (on the application of) v Secretary of State for the Home Department & Anor [2009] EWHC 1771 (Admin); LO (Partner of EEA national) Nigeria [2009] UKAIT 00034 was wrongly decided.
2. In-country appeal and the Directive. The absence of a prohibition on bringing an appeal from within the United Kingdom is neutral. It does not confer a right to remain while the appeal is prosecuted. Article 31.4 of Directive 2004/38/EC operates in the context of Chapter VI, concerning restrictions and expulsion of Union citizens and their family members. It does not protect a person appealing a decision that he is not such a family member. Article 15 does not alter that conclusion. The decisions in Secretary of State for the Home Department v Islam, Rahman & Ors [2013] WLR 230 and McCarthy [2015] QB 151 provided no assistance.
3. Removal appeal and precedent fact. Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 refers to a person who is an EEA national or family member, rather than a person who merely claims that status. The issue was in any event moot because no appeal against the removal decision had been brought and the appellant was ultimately found not to be a family member.
4. Judicial review. The removal power under section 10 of the Immigration and Asylum Act 1999 arose from overstaying. Its existence did not depend on prior establishment of family-member status. The observations in Giri, R (On the Application Of) v Secretary of State for the Home Department [2015] EWCA Civ 784 concerning precedent fact were obiter and arose in a different context. The ordinary public-law approach was therefore appropriate; the statutory merits appeal under regulation 26(1) concluded the matter.

1. Court of Appeal (Civil Division). Entertained the moot appeal because of the importance and recurring nature of the issue, and dismissed it on 8 March 2016.
2. Upper Tribunal (Immigration and Asylum Chamber). Dismissed the appellant’s judicial review claim concerning the Secretary of State’s removal decision. The determination was promulgated on 24 July 2015.
3. First-tier Tribunal. Dismissed the appellant’s appeal against refusal of his EEA residence-card application on 14 August 2015. Permission to appeal to the Upper Tribunal was refused.