R MD Shafikul Islam v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeAndrew Thomas
Judgment Date02 November 2018
Neutral Citation[2018] EWHC 2939 (Admin)
Docket NumberCase No: CO/1378/2018

[2018] EWHC 2939 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Andrew Thomas QC, sitting as a Deputy High Court Judge

Case No: CO/1378/2018

Between:
The Queen on the application of MD Shafikul Islam
Claimant
and
Secretary of State for the Home Department
Defendant

Zakir Hussain (instructed by Hubers Law) for the Claimant

Zane Malik (instructed by Government Legal Department) for the Defendant

Hearing dates: 25 th October 2018

Judgment Approved by the court for handing down

Andrew Thomas QC:

1

The Claimant is 32 years old and a national of Bangladesh. He came to the UK on a Tier 4 (General) student visa in 2012 but overstayed. He does not currently have leave to remain but he has an outstanding appeal to the First Tier Tribunal (FTT) against the Defendant's refusal to grant him an EEA residence card. He claims entitlement to residence on the grounds that he is the dependant of an extended family member who is an EEA national.

2

On 14 th March 2018 a notice of intention to remove (RED.0004) was served and the Claimant was detained with a view to his removal. Removal directions were served on 4 th April 2018 indicating that he was to be removed two days later, on 6th April 2018. At that stage, his appeal to the FTT was listed for hearing on 25 th April 2018.

3

This claim for judicial review was issued on 5 th April 2018, challenging the decisions to issue removal directions and to detain. On the same date, Choudhury J made an interim order granting a stay of the Claimant's removal from the UK “until the determination of his application for permission to seek Judicial Review or the conclusion of the FTT hearing listed for 25 April 2018, whichever is earliest, or until further Order.” In fact, the appeal hearing before the FTT did not proceed on 25 th April 2018. The Claimant was released from detention on 20 th April 2018.

4

In these proceedings, the Claimant makes two challenges, namely:

i) a challenge to the Defendant's decision to issue removal directions for 6 th April 2018; and

ii) a challenge to the Defendant's decision to detain the Claimant from 14 th March 2018 until 20 th April 2018.

5

The central issues which arise in this case are the following.

i) Was it lawful for the Defendant to seek to remove the Claimant from the UK when he had an appeal outstanding before the FTT relating to the refusal to grant him a residence card? The Claimant's case is that the decision was contrary to the legislation because the Defendant had already acknowledged that he was a family member of an EEA national. He submits that in those circumstances an appeal of this nature has suspensive effect. He also argues that the decision was irrational.

ii) Would the removal of the Claimant from the UK have unlawfully interfered with his right of appeal against the residence card decision? The Claimant relies on the decision of the Supreme Court in R (Kiarie) v SSHD; R (Byndloss) v SSHD (2017) UKSC 42, and the decision of the Court of Appeal in Ahsan & Ors v SSHD (2017) EWCA Civ 2009. Although the present case involves a different statutory scheme, the Claimant argues that the same analysis should be made of the restrictions on his ability to prepare and present his appeal effectively.

iii) Was his detention for an unlawful purpose? The Claimant's case is that he was detained for the purpose of the unlawful removal indicated above.

iv) Was his detention in breach of the Hardial Singh principles in any event? The Claimant argues that his detention was unjustified as there were no compliance issues in his case. Alternatively, his detention became unlawful when it became apparent that he was not going to be removed within a reasonable timescale.

Background

6

The relevant facts can be shortly stated. The Claimant first entered the UK in August 2012. He was 26 years old at the time and single. His mother, father and siblings have remained living in Bangladesh. He has a maternal uncle, who holds Italian nationality, who was already living in the UK.

7

The Claimant was given leave to enter as a student, initially until September 2013. This was later extended until December 2015 but for reasons outside his control it was curtailed so as to expire on 21 st March 2015.

8

The Claimant did not return to Bangladesh when his leave to remain expired. He has continued living in the UK as an overstayer since 22 nd March 2015. It is common ground that he has no lawful right to remain.

9

On 24 th June 2015, the Claimant made an application for an EEA residence card. He made the application on the basis that he was a dependant of an extended family member who is an EEA national (an ‘EFM’ claim). His claim was based upon his relationship with his maternal uncle.

10

The application was rejected by the Defendant by a decision dated 23 rd December 2015. The Defendant accepts the bare fact that the Claimant is related to an EEA national. However, in order to qualify under Regulation 8(2) of the Immigration (EEA) Regulations 2006 (which were the regulations applicable at the time) the Claimant also had to show that he had been dependent upon, or living in the same household as, his uncle before coming to the UK and that he has continued to be dependent upon him, or living in the same household, since arriving.

11

The Defendant decided that the Claimant had not established such a dependency and therefore did not qualify as an extended family member within the meaning of the Regulations. The decision letter went on to determine that the Claimant had no entitlement to remain in the UK on family or private life grounds, whether within the Immigration Rules or outside.

12

The letter of 23 rd December 2015 concluded:

“As you appear to have no alternative basis of stay in the United Kingdom you should now make arrangements to leave. If you fail to do so voluntarily your departure may be enforced.

Regulation 26 of the Immigration (EEA) Regulations 2006 confers a right of appeal against this decision. However, this does not mean that, if you choose to appeal, you will be entitled to remain in the UK whilst the appeal is being considered.”

13

The Claimant appealed against the decision. No enforcement action was taken at that stage. On 2 nd December 2016, the FTT held (based on the Upper Tribunal's decision in Sala (EFMs: Right of Appeal) (2016) UKUT 0411 IAC) that it did not have jurisdiction to hear the Claimant's appeal. The Claimant appealed to the Upper Tribunal on the jurisdictional issue.

14

Meanwhile, on 11 th March 2017 the Defendant served a RED.0001 notice of removal on the Claimant, confirming that the Claimant did not have leave to remain and was liable to be removed. The notice states:

“You must now leave the UK. If you do not do so, you can be removed from the UK to Bangladesh. … Before removal you can now be detained or placed on reporting conditions.”

“Consequences of staying in the UK unlawfully

If you stay in the UK without leave

You can be detained

You can be prosecuted, fined and imprisoned

You can be removed and banned from returning to the UK

You will not be allowed to work

…”

15

On 30 th March 2017 the Claimant was served with notification of liability to be detained (form IS96). The form stated that the Claimant would be allowed temporary admission subject to conditions of residence and fortnightly reporting. Form IS96 makes it clear that it is not a grant of leave to remain. It states: “You remain liable to be detained.” There is no dispute that the Claimant at all times diligently complied with the two requirements. The fortnightly reporting was later relaxed to monthly reporting.

16

On 9 th November 2017, the Court of Appeal ruled in Khan v SSHD (2017) EWCA Civ 1755 that the FTT did have jurisdiction to hear EFM appeals and that Sala was wrongly decided. The decision was determinative of the Claimant's appeal to the UT, in his favour.

17

On 15 th December 2017, Upper Tribunal Judge Plimmer made an order allowing the Claimant's appeal and remitting the case to the First Tier Tribunal for a full hearing. There was provision for liberty to apply to the Upper Tribunal. For reasons which are unclear, the case was then listed for an oral hearing on 26 th February 2018. UTJ Kelly confirmed that the appeal had been allowed and the case remitted.

18

On 14 th March 2018, the Claimant was detained on reporting and served with a RED.0004 fresh notice of liability for removal. I will deal separately below with the detail of the subsequent detention decisions.

19

Pausing there, the Claimant's case is that the decision to exercise the power of removal under Section 10 of the Immigration and Asylum Act 1999 was irrational and unjustified. He also asserts that it was an abuse of the Secretary of State's power because (he asserts) it came suspiciously soon after the Upper Tribunal had confirmed its decision to remit the case to the FTT for hearing.

20

Written representations were made by Solicitors on the Claimant's behalf. As already indicated above, on 4 th April 2018 the Claimant was notified that that removal was to take place on the 6 th of April 2018. The present claim for judicial review was issued on 5 th April 2018. Chodhury J granted interim relief which prevented removal prior to the proposed hearing on 25 th April 2018. Meanwhile, on 4 th April 2018 the Claimant's Solicitors also made a human rights claim, filed in response to a notice under Section 120 of the Nationality, Immigration and Asylum Act 2002.

21

The Claimant made a bail application which was heard on 20 th April 2018. In his written response to the bail application, the Defendant stated that it was intended that the Section 120 submissions would be responded to by 30 th April 2018.

22

The Claimant was granted bail, on condition that financial...

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