R Ahmed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Beatson,Lady Justice King |
| Judgment Date | 08 March 2016 |
| Neutral Citation | [2016] EWCA Civ 303 |
| Docket Number | C2/2015/2828 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 2016 |
[2016] EWCA Civ 303
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Upper Tribunal Judges Storey and Peter Lane)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Laws
Lord Justice Beatson
Lady Justice King
C2/2015/2828
Mr Z Malik and Mr S Karim (instructed by Law Lane Solicitors) appeared on behalf of the Appellant
Mr C Thomann and Ms J Smyth (instructed by the Government Legal Department) appeared on behalf of the Respondent
This is an appeal, with permission granted by Sales LJ on 7 October 2015, against a determination of the Upper Tribunal (Upper Tribunal Judges Storey and Peter Lane) promulgated on 24 July 2015. By its determination the Upper Tribunal dismissed the appellant's claim for judicial review of the decision of the Secretary of State made on 20 February 2015 to remove him from the United Kingdom.
The overriding issue in the case is whether the appellant could lawfully be removed pending the determination of his appeal against the refusal of a residence card as the family member of an EEA national. In fact as I shall show the appellant was not removed and remained in the United Kingdom to pursue his appeal which was at length dismissed on 14 August 2015. The issue is therefore moot from his point of view. We must accordingly decide whether we should nevertheless entertain the appeal in light of the acknowledged importance of the issue.
It will make for clarity if I first explain the case. The essential facts are short and not in dispute. They are summarised by the Upper Tribunal as follows:
"6. On 4 April 2011, the applicant, a citizen of Pakistan, arrived in the United Kingdom in possession of a Tier 4 Student visa. On 21 November 2014, the applicant married a Romanian national. On 17 December 2014, the applicant submitted an application for an EEA residence card, pursuant to the EEA Regulations. The applicant's leave to remain as a student expired on 22 December 2014.
7. On 20 February 2015, the applicant and his wife attended for interviews, conducted by a representative of the respondent. Following the interviews, the respondent concluded that the applicant's marriage was one of convenience. Since the applicant had by this point overstayed his leave, he was detained and served with a notice of a decision to remove, pursuant to section 10 of the 1999 Act. On 24 February 2015, the applicant issued his judicial review claim in the Upper Tribunal. The following day, the respondent refused the applicant's application for an EEA residence card. The applicant appealed against that decision to the First-tier Tribunal."
The judicial review claim was as I have said directed at the decision to remove the appellant made on 20 February 2015. Following an initial refusal, permission to seek judicial review was granted by Upper Tribunal Judge Storey on 23 March 2015. The judicial review came on for hearing on 8 June 2015 when the appellant was given leave to amend his grounds to contend that his statutory right of appeal against the refusal of the residence card on 25 February 2015 had the effect of suspending the Secretary of State's power to remove him from the United Kingdom pursuant to the decision of 20 February.
On 14 August, as I have said, the FTT (in fact constituted by the same judges, Judges Storey and Lane) dismissed his appeal against the refusal of the residence card, holding that the Secretary of State had proved that the appellant's marriage was one of convenience. Permission to appeal to the Upper Tribunal has, we are told, been refused.
The Upper Tribunal made it plain at the outset of the judicial review determination that the scenario of the present case, as they put it, is encountered in the tribunals with some frequency. It has been the subject of conflicting first instance decisions. Dicta in LO (Partner of EEA national) Nigeria [2009] UKAIT 00034 favour the appellant's position; whereas Abdullah, R (on the application of) v Secretary of State for the Home Department & Anor [2009] EWHC 1771 (Admin) favours that of the Secretary of State. It is well-established that the court should only proceed to entertain an appeal which on the facts is moot as between the parties "cautiously" or "sparingly". In this case on balance I would do so.
I turn to the relevant legislation. There are four statutory measures relevant to the issues in this case; three domestic, one European. They are in chronological order section 10 of the Immigration and Asylum Act 1999; provisions contained in the Nationality, Immigration and Asylum Act 2002; Directive 2004/38/EC on the right of EU citizens to move and reside freely within the territory of the Member States; and the Immigration (European Economic Area) Regulations 2006, which implement the Directive.
As the Upper Tribunal indicated, the Secretary of State decided to remove the appellant as an overstayer. The power to do so is given by section 10(1)(a) of the 1999 Act. The refusal of an EEA residence card is a "EEA decision" within the meaning of paragraph 2(1)(b) of the 2006 Regulations, which define an EEA decision thus:
"'EEA decision' means a decision under these Regulations that concerns a person's—
(a)entitlement to be admitted to the United Kingdom;
(b)entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or
(c)removal from the United Kingdom."
By Regulation 17 the Secretary of State must issue a residence card to a person who is not an EEA national but is the family member of an EEA national. By Regulation 7(1) family member includes spouse, but Regulation 2(1) shows that spouse does not include a party to a marriage of convenience. The Secretary of State refused the appellant's application for a residence card because she had concluded that he was such a party.
The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1). It is common ground that there is no provision which forbids such an appeal to be brought while the appellant remains within the jurisdiction. But the question is whether the law confers on such an appellant a positive right not to be removed until his appeal has been determined. The Upper Tribunal held (paragraph 26) that:
"The basic flaw in the applicant's case is to conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion."
What then do the statutory provisions tell us about the right, if any, to an in-country appeal? Section 82(1) of the 2002 Act confers a right of appeal against what is there described as an "immigration decision". Section 78(1) prohibits the removal from the United Kingdom of certain section 82(1) appellants (see section 78(4)) from the United Kingdom while their appeals are pending. Certain provisions of the 2002 Act are by Schedule 1 to the 2006 Regulations to have effect in relation to appeals under those Regulations; but section 78 is not one of them. However, Regulation 19 of the 2006 Regulations provides that certain appeals under the Regulations are to have suspensive effect. Regulation 29 provides in part:
"(1) This Regulation applies to appeals under these Regulations made to the First-tier Tribunal or the Upper Tribunal.
(2) If a person in the United Kingdom appeals against an EEA decision to refuse to admit him to the United Kingdom, any directions for his removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been...
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