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

An appeal against refusal of an EEA residence card is not suspensive merely because it may be brought from within the United Kingdom. Unless an express statutory protection applies, the pending appeal does not prevent removal. A person whose claimed EEA entitlement has been rejected may therefore require leave to remain but have none, permitting removal under the statutory removal power and detention where the statutory reasonable-grounds test is met. Possible difficulties in conducting an appeal from abroad do not establish unlawfulness without evidence or an applicable human-rights procedural right. The effective-appeal reasoning in R (Kiarie and Byndloss) v Secretary of State for the Home Department is confined to materially different, arguable and uncertified Article 8 claims.

The claimant, a Ghanaian citizen, challenged his detention and removal directions. He had previously failed before the First-tier Tribunal and Upper Tribunal in relation to an alleged proxy marriage and durable relationship with an EEA national. A later residence-card application was refused, and a further appeal remained pending when he was detained and removal directions were issued.

He argued that the pending appeal was suspensive and that detention consequently lacked a lawful basis. He also relied on possible difficulties in presenting the appeal from Ghana. The central issues were whether the appeal prevented removal and whether the statutory powers to remove and detain were thereby unavailable.

1. Removal pending appeal. The application for judicial review was dismissed. Following R (Bilal Ahmed) v Secretary of State for the Home Department [2015] UKUT 436 (IAC) and its dismissal on appeal in [2016] EWCA Civ 303, the court held that an appeal against refusal of an EEA residence card has no suspensive effect.
2. The 2016 Regulations contained carefully defined protections for particular appeals, but an appeal against refusal of a residence card was not within those protections. The court agreed with the reasoning in R (Shote) v Secretary of State for the Home Department [2018] EWHC 87 (Admin) that there was no material distinction between the 2006 and 2016 Regulations. The pending appeal therefore did not prevent removal.
3. Article 8 and effective appeals. R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 was distinguishable. That decision concerned arguable Article 8 claims which had not been certified under section 94 of the Nationality, Immigration and Asylum Act 2002. Here the Article 8 claim had been certified as clearly unfounded, the certification was unchallenged, and no evidence established practical difficulties in conducting the appeal from Ghana. Such asserted possibilities did not make removal unlawful.
4. Detention. Since the claimant’s EEA claim had been rejected and the appeal was non-suspensive, he required leave to remain but did not have it. The Secretary of State therefore had removal powers under section 10 of the Immigration and Asylum Act 1999. There were reasonable grounds for suspecting that removal directions could be given, satisfying paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The detention challenge accordingly failed.
5. The claimant’s application was dismissed. Costs were ordered against him in the reduced sum of £10,360.

The judgment describes earlier proceedings in which the First-tier Tribunal dismissed the claimant’s residence-card appeal on 11 May 2016 and the Upper Tribunal refused permission to appeal on 8 November 2016. A later residence-card appeal was pending. This judicial review was dismissed by the High Court.