Mexhun Shehu, R (on the application of) v The Secretary of State for the Home Department

An appeal against the refusal of an EEA residence card does not, without more, suspend removal. The redress safeguards in Citizens Directive, article 31 do not require every EEA appeal to have automatic suspensive effect. Article 31(4) permits exclusion pending the redress procedure, provided that arrangements exist for the individual to submit a defence in person, subject to its stated exceptions.

That conclusion remains so even if article 35 applies article 31 safeguards to a measure concerning alleged abuse of rights. It was therefore not appropriate to treat Ahmed [2016] EWCA Civ 303 as decided per incuriam because it did not address article 35.

The applicant, an Albanian citizen, sought judicial review of removal directions made while an appeal against the refusal of an EEA residence card was pending. The Secretary of State had treated him as an overstayer and later refused the residence card because she was not satisfied that he was in a durable relationship with an EEA citizen or that the EEA citizen was a qualified person.

The removal decision carried no appeal right. The residence-card refusal was appealable. The central issue was whether that pending EEA appeal had suspensive effect, particularly under articles 31 and 35 of the Citizens Directive. The applicant also sought, at the hearing, to raise a new precedent-fact ground.

1. The application was dismissed. The challenge could succeed only if the applicant could distinguish or avoid the effect of Ahmed [2016] EWCA Civ 303. The Tribunal declined to regard that Court of Appeal decision as per incuriam.

2. Even assuming that article 35 of the Citizens Directive caused the procedural safeguards in article 31 to apply to the decision in issue, article 31(4) did not require an EEA appeal to suspend removal. It expressly permits a Member State to exclude the individual pending the redress procedure, while preserving the ability to submit a defence in person subject to the specified exceptions.

3. Regulation 29AA of the Immigration (European Economic Area) Regulations 2006, although not directly applicable to this proposed removal, showed that arrangements could be made to enable a person to submit a case in person. That was sufficient to meet the redress requirement without treating the appeal as suspensive.

4. The proposed new precedent-fact ground was raised without proper notice and had not been adequately prepared by either side or the Tribunal. The interests of justice required that it not be determined in this claim.

• Upper Tribunal (Immigration and Asylum Chamber): A stay on removal was granted on 15 July 2015 and permission for judicial review was granted on 2 December 2015. The substantive application was dismissed.