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

An appeal against refusal of an EEA residence card is non-suspensive. It does not suspend removal or detention where the person is otherwise removable, including as an overstayer. That remains so where the refusal is alleged to contain a public law error, because the statutory appeal is the prescribed remedy. A later decision by the First-tier Tribunal allowing the appeal does not retrospectively invalidate detention based on an independent power. A decision-maker may rely on a reasoned interview summary and need not disclose every precise concern before deciding the residence-card application, provided the applicant has a fair opportunity to address the substance of the concerns on appeal.

The claimant, a Pakistani national and overstayer, was detained pending removal after his application for an EEA residence card, based on his marriage to a Romanian national, was refused on the ground that the marriage was one of convenience. His appeal against that refusal was pending when he was detained. The appeal was later allowed by the First-tier Tribunal.

The judicial review claim initially challenged the residence-card decision, removal and detention. By the hearing, only liability for unlawful detention remained. The central questions were whether the residence-card appeal prevented detention or removal, whether the refusal involved public law error or procedural unfairness, and whether any such error would invalidate the detention.

1. Claim dismissed. The claimant’s detention from 13 to 28 July 2017 was lawful. The removal and detention decisions were made because he was an overstayer whose Article 8 application had failed and been certified as clearly unfounded. They were not made under, or dependent on, the residence-card decision.
2. Following Bilal Ahmed v Secretary of State for the Home Department [2016] EWCA Civ 303, an appeal against refusal of a residence card under the EEA Regulations is non-suspensive. The same reasoning applied under the materially identical 2006 and 2016 Regulations. A challenge based on alleged irrationality or other public law error must still be pursued by appeal to the First-tier Tribunal and does not suspend removal or detention.
3. The later allowance of the appeal did not establish that the original decision was unlawful. The First-tier Tribunal determines the merits afresh and may consider further evidence: Sadovska and another v Secretary of State for the Home Department [2017] UKSC 54; [2017] 1 WLR 2926.
4. The refusal was not irrational. There was material capable of supporting the conclusion that the marriage was one of convenience, including the timing of the relationship, inconsistent interview answers and the parties’ reaction when concerns were communicated. The decision-maker was entitled to rely on the interviewer’s summary and was not required to inspect a full transcript or refer to every piece of favourable evidence.
5. There was no procedural unfairness. The couple knew that the interview concerned whether the relationship was genuine, were told the conclusion reached, and could provide further evidence before the residence-card decision and on appeal. Papajorgji (Greece) [2012] UKUT 00038 (IAC) and Miah (interviewer’s comments: disclosure: fairness) [2014] UKUT 00515 (IAC) did not require disclosure of every precise concern before the original decision. Sapkota was distinguishable on its materially different facts.
6. Even if a public law error had existed, it would not have infected this detention. Applying the approach in Secretary of State for the Home Department v Draga [2012] EWCA Civ 842, the alleged errors were not of a kind that invalidated detention based on the independent overstayer power.