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

An outstanding appeal against refusal of an EEA residence card does not generally suspend removal under section 10 of the Immigration and Asylum Act 1999. A person claiming, but not yet establishing, extended-family-member status cannot rely on section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002. Removal will be unlawful on procedural human-rights grounds only where the claimant shows that removal would prevent effective participation in an appeal engaging Article 8 rights. Detention must satisfy the Hardial Singh principles: it must pursue removal, last no longer than reasonably necessary, remain supported by a realistic prospect of removal within a reasonable time, and be pursued with reasonable diligence.

The claimant, a Bangladeshi national and overstayer, challenged removal directions and detention pending removal. He had an outstanding appeal against refusal of an EEA residence card based on alleged dependency on an Italian maternal uncle. He argued that the appeal had suspensive effect, that removal would unlawfully impair his ability to present the appeal, and that his detention was unlawful both because its purpose was unlawful and under the Hardial Singh principles.

The central questions were whether the statutory scheme prevented removal while the residence-card appeal was pending, whether the principles in R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department and Ahsan v Secretary of State for the Home Department applied, and whether detention remained justified.

1. Removal. The claim challenging removal was dismissed. Regulation 29 of the Immigration (EEA) Regulations 2006 gives suspensive effect to appeals against refusal of admission and removal decisions, but not to an appeal against refusal of a residence card. A claimant who merely asserts eligibility is not thereby a family member for section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002. Under regulation 7(3), extended-family-member status arises only after the relevant conditions have been established and the required card or document issued. The reasoning in R (Bilal Ahmed) v Secretary of State for the Home Department, (2015) UKUT 436 (IAC), R (Ahmed) v Secretary of State for the Home Department, [2016] EWCA Civ 303, and R (Shote) v Secretary of State for the Home Department, [2018] EWHC 87 (Admin), was applied. The claimant’s removal was neither irrational nor an abuse of power.
2. Effective participation in the appeal. The principles in R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department, (2017) UKSC 42, and Ahsan v Secretary of State for the Home Department, (2017) EWCA Civ 2009, did not apply. Those cases concerned human-rights appeals engaging Article 8. The claimant’s residence-card appeal did not raise an Article 8 issue, and he produced no evidence that removal would prevent effective presentation of his appeal, including by live link. His separate human-rights claim had been certified as clearly unfounded and was unchallenged.
3. Detention. The detention challenge was dismissed. The Secretary of State had power under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. Applying the principles in R v Governor of Durham Prison, ex parte Hardial Singh, [1984] 1 All ER 983, and R (Lumba) v Secretary of State for the Home Department, [2011] UKSC 12, detention was justified by the claimant’s prolonged overstaying, failure to leave voluntarily and assessed absconding risk. Removal had a realistic prospect within a reasonable period. The stay and consideration of the later human-rights submissions did not make continued detention unlawful before the appeal was postponed. The late challenge concerning release one day earlier was unsupported by evidence and had not been properly raised.

First-instance judicial review. The Administrative Court dismissed all challenges to the removal directions and detention.