R (on the application of Bilal Ahmed) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | Peter Lane |
| Judgment Date | 24 July 2015 |
| Neutral Citation | [2015] UKUT 436 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 July 2015 |
[2015] UKUT 436 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Peter Lane
Mr S Karim, instructed by Law Lane Solicitors, appeared on behalf of the applicant.
Ms J Smyth, instructed by Government Legal Department, appeared on behalf of the respondent.
R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR
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(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
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(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
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(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P's application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
JUDGE Peter Lane
What follows is the judgment of the Tribunal.
A scenario currently encountered with some frequency by the Upper Tribunal in the course of its immigration judicial review work is as follows. P, who is not an EEA national, and who is in the United Kingdom with limited leave granted by the respondent under the Immigration Acts (or whose leave has already expired) marries Q, an EEA national who is in the United Kingdom exercising Treaty rights (or purporting to do so). Relying on the marriage, P applies to the respondent for a residence card under the Immigration (European Economic Area) Regulations 2006, as confirmation of a right of residence in the United Kingdom as the family member of Q. At some point, P's limited leave has expired, with the result that, so far as the respondent is concerned, P is an overstayer. This may have happened before or after the marriage and/or P's application for a residence card.
Having interviewed P and Q on separate occasions, the respondent considers that the marriage is “a marriage of convenience”, with the result that, so far as the respondent is concerned, P is not a family member of Q because regulation 2 of the EEA Regulations provides that a “‘spouse’ does not include a party to a marriage of convenience”. The respondent therefore refuses P's application for a residence card.
Since P is an overstayer, the respondent makes a decision under section 10 of the Immigration and Asylum Act 1999 (as it was before amendment by the Immigration Act 2014) to remove P from the United Kingdom. The section 10 decision can occur before or after the refusal of P's application. The respondent sets directions for P's removal.
P brings judicial review proceedings to challenge the lawfulness of removal on the basis that P has a right of appeal to the First-tier Tribunal under the EEA Regulations, which is suspensive of P's removal. P may also contend that there is a separate right of appeal to the First-tier Tribunal against the section 10 removal decision, which P says is also suspensive of removal.
As can be seen, there is scope in this scenario for a number of variants (including some that we have not mentioned). The central questions, however, remain the same; namely (a) whether a right of appeal against the refusal of the residence card and/or or against the section 10 decision is suspensive; and (b) whether P's contention that the marriage is not one of convenience is a “precedent fact” to be determined by the Upper Tribunal in the judicial review proceedings, particularly if the answer to (a) is in the negative and it is intended to remove P before the issue of the marriage has been decided by the First-tier Tribunal in the course of P's appeal.
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.
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.
On 27 February 2015, the Upper Tribunal refused to grant permission and also refused a stay on the applicant's removal. On 5 March 2015, fresh removal directions were set, for 17 March 2015. Following an oral hearing at which both the applicant and the respondent were represented by Counsel, the Upper Tribunal granted permission to bring judicial review proceedings. The Tribunal considered it arguable that the applicant's right of appeal fell within the scope of section 92(4) of the Nationality, Immigration and Asylum Act 2002, so that it should have attracted an in-country right of appeal; and that the relevance of section 92(4) was not addressed by the High Court in R (on the application of Abdullah) v Secretary of State for the Home Department [2009] EWHC 1771 (Admin). It was also thought that there was “an apparent conflict between the Abdullah decision and the subsequent decision of the Upper Tribunal in LO [2009] UKAIT 00034”.
Case management directions were made. Regrettably, however, the applicant failed to serve a skeleton argument until immediately before the substantive hearing on 8 June 2015. At that hearing, Mr Karim applied orally to amend the grounds of application, so as to contend that the right of appeal arising from the refusal of the residence card on 25 February 2015 was suspensive of the applicant's removal. In order to ensure fairness, both parties were given the opportunity (which they took) of making written submissions, subsequent to the hearing, on this issue, in the light of which the respondent withdrew her objection to Mr Karim's application. Permission was, accordingly, given to the applicant to amend his grounds. In deciding to withdraw her objection, the respondent referred not only to the fact that the proposed ground was, in the event, the subject of submissions at the hearing but also that it “arises in other cases”.
In accordance with directions given following the grant of permission to bring judicial review proceedings, the present panel of the Upper Tribunal also sat as a panel of the First-tier Tribunal on 8 June, in order to hear the applicant's appeal against the refusal to grant him a residence card as the family member of an EEA national.
The relevant legislation is to be found in:
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(a) Directive 2004/38 (“the Directive”);
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(b) The Immigration (European Economic Area) Regulations 2006;
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(c) section 10 of the Immigration and Asylum Act 1999 (prior to its amendment by the Immigration Act 2014);
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(d) sections 78 and 92 of the Nationality, Immigration and Asylum Act 2002 (again, before amendment by the 2014 Act).
The relevant provisions are set out in the Appendix to this judgment.
Mr Karim submitted that the applicant's right of appeal against the decision to refuse him a residence card, which it is common ground may be brought whilst he is in the United Kingdom, means that the appeal proceedings must fully run their course before the applicant's removal can take place. Were it otherwise, the right of appeal would become “redundant and useless”. In this regard, Mr Karim relied upon the determination of the Asylum and Immigration Tribunal in LO (Partner of EEA national) Nigeria [2009] UKAIT 00034, in which it was held that there existed an in-country right of appeal against a decision to refuse a person a residence card as a partner of an EEA national within regulation 8(5) of the EEA Regulations. In the course of its determination, the AIT held:-
“10. The appellant's claim to be an ‘extended family member’ and to be entitled to a residence card was met by a refusal to give him a residence card. That was an EEA decision within the meaning of regulation 2 of the 2006 Regulations. It therefore carried a right of appeal unless paragraphs ( 2) or (3) of reg 26 apply to it. Neither of those paragraphs do apply. The appellant is not himself an EEA national; and he does not claim to be a ‘family member’ or relative. Quite apart from the terms of reg 8(1), the Regulations as a whole distinguish clearly between family members and extended family members. It therefore seems clear to me that the appellant had an in-country right of appeal against the refusal of a residence...
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