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

Immigration detention remains lawful where an in-country appeal against refusal of an EEA residence card has no suspensive effect, and the claimant’s asserted EEA eligibility is not a precedent fact for reviewing removability under section 10. A previous grant of tribunal bail does not prevent redetention after surrender to an immigration officer, particularly where there is a genuine and material change of circumstances. Under Hardial Singh 3, the Secretary of State must keep detention under informed and repeated review, considering whether removal remains achievable within a reasonable time. Interim stays, human rights claims and judicial review proceedings do not automatically make detention unlawful. Adequate notification of a removal window may suffice under the applicable policy.

The claimant, a Nigerian national who had overstayed in the United Kingdom, challenged the legality of 33 days of immigration detention pending removal. She had appealed against refusal of an EEA residence card, previously been granted bail, and was detained when reporting as required. Removal was stayed by an interim order, followed by a human rights claim and judicial review proceedings. She argued that the appeal was suspensive, that she was objectively entitled to reside under the EEA Regulations, that her earlier tribunal bail remained extant, that procedural obstacles made removal unreasonable, and that the removal-window notice was ineffective. The central issue was whether any of those matters rendered detention unlawful.

1. The claim was dismissed. The appeal against refusal of an EEA residence card was not suspensive. Regulations 33, 36, 37 and 40 of the Immigration (European Economic Area) Regulations 2016 provided carefully defined protections, none of which applied. The absence of a requirement to appeal from abroad did not create a right to remain pending appeal. The reasoning in R (Ahmed) v Secretary of State for the Home Department was applicable.
2. A person whose claimed EEA eligibility had been rejected but remained appealable was a person who required and did not have leave for section 10(1) purposes. Eligibility under the 2016 Regulations was not a precedent fact for judicial review of removal or detention. Treating it as such would undermine the statutory scheme making the appeal non-suspensive.
3. The claimant’s First-tier Tribunal bail had ended when she appeared before an immigration officer to surrender to bail. The Court of Appeal’s decision in R (AR (Pakistan)) v Secretary of State for the Home Department authoritatively resolved that issue. Earlier tribunal bail could still generate public law obligations, but no such independent challenge had been established. A genuine and material change of circumstances, including imminent removal, could justify redetention following surrender to bail.
4. The Secretary of State had repeatedly reviewed detention and had considered the interim stay, human rights claim and judicial review proceedings. The evidence showed an objectively justifiable position throughout the period. It was not apparent at any identifiable stage that removal within a reasonable time was impossible. Hardial Singh 3 required close scrutiny, but allowed the primary decision-maker latitude and detention was not to be assessed through hindsight.
5. The removal-window notice had been collected by the claimant from the delivery office. In any event, the solicitors had secured a stay promptly. Any notification defect concerned the legality of removal on the proposed date, not automatically the legality of detention. No order for costs was made because the Secretary of State’s late filing of grounds and evidence was clear and inexcusable.

First-instance judicial review decision. No earlier appellate decision in the same proceedings was stated.