R (on the application of Shehu) v Secretary of State for the Home Department (Citizens Directive: no suspensive appeals)
| Jurisdiction | UK Non-devolved |
| Judge | John Freeman |
| Judgment Date | 07 June 2016 |
| Neutral Citation | [2016] UKUT 287 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 07 June 2016 |
[2016] UKUT 287 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Upper Tribunal Judge John Freeman
Counsel for the applicant: Sandra Akinbolu (instructed by Malik & Malik)
Counsel for the respondent: William Irwin (instructed by GLD)
R (on the application of Shehu) v Secretary of State for the Home Department (Citizens Directive: no suspensive appeals) IJR
The redress procedure required by articles 31 and 35 of the Citizens Directive does not make it necessary to treat EEA appeals of any kind as suspensive, since arrangements can be made, on the conditions set out in article 31.4, for allowing the subject to submit his defence in person, which is reason enough for declining to treat the decision of the Court of Appeal in Ahmed as per incuriam for not dealing with article 35.
. This is an application for judicial review of the decision of the respondent on 7 July 2015, to make removal directions against a citizen of Albania, born 27 May 1995, being maintained while he had an appeal pending against refusal of an EEA residence card. The respondent had made that removal decision on the basis that the applicant was an overstayer; but she proceeded, on 14 July, to refuse a residence card, on the basis that she was not satisfied that he had a ‘durable relationship’ with an EEA citizen, as he had claimed; or that the EEA citizen concerned was a ‘qualified person’, in terms of the Immigration (European Economic Area) Regulations 2006 [the EEA Regulations].
. As the law stands since 6 April 2015, the removal decision carried no right of appeal, either in or out-of-country. The EEA decision was appealable; but the point raised was whether or not such an appeal had suspensive effect. On that basis, following the grant of a stay on removal on 15 July, permission was given on 2 December. The Upper Tribunal decision in BilalAhmed (EEA/s 10 appeal rights: effect (IJR) [2015] UKUT 436 (IAC) had already been sent out, on 24 July, so had not been referred to in the grounds filed. However, those representing the applicant should not have allowed the permission judge to make the order he did, without referring him to that decision. It has since been comprehensively upheld in Ahmed [2016] EWCA Civ 303.
. It follows that the challenge to the decision to remove, because there was an EEA appeal pending, can only succeed if Miss Akinbolu can distinguish, or otherwise avoid the effect of that decision of the Court of Appeal. She sought for the first time in her skeleton argument, produced for the first time on the date of the present hearing, without previous notice to the respondent or to the Tribunal, to raise another ground, which was that the respondent was obliged to make a full examination of the applicant's EEA rights before deciding to remove him, which entitlement raised a question of precedent fact, as in Khawaja [1983] UKHL 8, and other well-known authorities. This point appears also to have been disposed of by the Court of Appeal in Ahmed, at paragraphs 24 – 27; but, even if I am wrong about that, and it is arguable, the interests of justice require that it should be dealt with in a case where both sides, and the Tribunal, have had a proper opportunity to prepare to do so.
. Returning to the pending appeal point, Miss Akinbolu's main argument was that the Court of Appeal had reached their decision without adequate consideration of Directive 2004/38/EC of the European Parliament and of the Council [the Citizens Directive] on which the EEA Regulations were based. It would be a bold decision on my part to hold that one by a Court of Appeal composed of three judges, the author of the leading judgment being Laws LJ, whose experience in this field is unrivalled by anyone, was in effect per incuriam. However, since permission was granted on the basis it had been, even though (or even because) the applicant's representatives had neglected their professional duty to keep the Tribunal informed of relevant decisions, especially those which went against their client's interests, I shall have to deal with Miss Akinbolu's submissions.
. Laws LJ dealt with the Citizens Directive point as follows: it is worth citing what he had to say in full.
- The appellant next has a submission arising out of the terms of the Directive. He relies particularly on Article 31.4: “Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual...
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Upper Tribunal (Immigration and asylum chamber), 2016-06-07, [2016] UKUT 287 (IAC) (R (on the application of Shehu) v Secretary of State for the Home Department (Citizens Directive: no suspensive appeals)(IJR))
...R (on the application of Shehu) v Secretary of State for the Home Department (Citizens Directive: no suspensive appeals) IJR [2016] UKUT 00287 (IAC) IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW Heard at Field House Decision signed: 26 May 2016 On: 24 May 2016 Handed down: 7 June 2016......
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(1) Elkhateb v Secretary of State for the Home Department
...in the line of authorities, including Ahmed itself, Abdullah v Secretary of State [2009] EWHC 1771, and R (on the application of Shehu) v Secretary of State for the Home Department [2016] UKUT 287 that an appeal of that nature does not have a suspensive effect and any challenge ought to be ......