Shahbaz Ahmad (Anonymity Direction Not Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane |
| Judgment Date | 14 November 2017 |
| Neutral Citation | [2018] UKUT 84 (IAC) |
| Date | 14 November 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 00084 (IAC)
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Allen
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Ahmad (scope of appeals)
(1) A notice of removal window (Form RED.0004 (fresh)) is not an EEA decision for the purposes of the Immigration (European Economic Area) Regulations 2006. The notice cannot accordingly be appealed under those Regulations. Even if it could constitute a decision, the notice of removal window will constitute an EEA decision only if it concerns a person's removal from the United Kingdom under regulation 19 of those Regulations.
(2) Section 85(1) of the Nationality, Immigration and Asylum Act 2002 does not enable the Tribunal hearing an appeal in the United Kingdom to treat that appeal as including an appeal which has been certified under section 94 as clearly unfounded and which, as a result, can be brought only once the appellant is outside the United Kingdom.
(3) A statement made by an appellant under section 120 of the 2002 Act in response to a One-Stop notice is a statement made to the Secretary of State or an Immigration Officer. Accordingly, a statement made only in a ground of appeal to the Tribunal is not a statement under that section.
For the Appellant: Mr D Mold, Counsel, instructed by MTUK Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer
The appellant, a citizen of Pakistan, was born on 15 January 1973. He claims to have arrived in the United Kingdom unlawfully in December 2001. He subsequently claimed asylum unsuccessfully and his ensuing appeal was dismissed, following a hearing in August 2003.
After becoming appeal rights exhausted in December 2003, the appellant remained in the United Kingdom unlawfully. On 28 July 2014, he applied for an EEA residence card. That application was refused on 15 December 2015.
On 17 March 2016, the appellant made a further such application. This was refused on 13 September 2016.
The appellant appealed against that refusal. This appeal (“the residence card appeal”) has the reference EA/12374/2016.
In his grounds of appeal to the First-tier Tribunal, dated 6 October 2016, in respect of the residence card appeal, the appellant contended that the respondent's decision was not in accordance with the Immigration Rules or the Immigration (European Economic Area) Regulations 2006. Furthermore, the appellant stated that the decision was incompatible with his Article 8 rights.
It was not until August 2017 that the residence card appeal came before a Judge of the First-tier Tribunal, for substantive consideration. By that time, a number of other things had happened.
On 5 July 2017, the respondent served on the appellant a “notice of removal window” (Form RED.0004 (fresh)). The notice of removal window included (or was accompanied by; it matters not) a One-Stop Notice under section 120 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The power to serve this One-Stop Notice derives, in the present case, from section 120(1)(c), which covers the situation where “a decision to … remove [the appellant] has been or may be taken”.
Section 120(2) provides that the serving of the One-Stop Notice requires the recipient to provide a statement, setting out his or her reasons for wishing to remain in the United Kingdom, and any other grounds on which he or she should be permitted to remain, together with any grounds on which he or she should not be removed from or required to leave the United Kingdom. The provision is to set out in the Appendix to this decision, together with other relevant legislation.
On 4 July 2017, the appellant made an application to the respondent for leave to remain in the United Kingdom, on Article 8 grounds. He said that he was married to a British citizen who was present and settled in the United Kingdom. He had been living together with his wife in Chobham, Surrey, until he had been detained whilst reporting on 3 July 2017. His wife had established an internet café business in Spain, which required her to travel to that country. The appellant also made further submissions as to why his removal would constitute a disproportionate interference with his Article 8 rights.
On 12 July 2017, the respondent refused to grant the appellant leave to remain. Additionally, the respondent certified the appellant's human rights claim, pursuant to section 94 of the 2002 Act, on the basis that it was clearly unfounded.
On 14 July 2017, the appellant filed a notice of appeal with the First-tier Tribunal. The notice purported to challenge a refusal decision dated “13/09/2016” – that is to say, the residence card decision – and one dated “12.07.2017” – which is, as we have seen, the date of the certification of the appellant's human rights claim.
The grounds of appeal, however, drafted by Mr Mold, stated that the appeal lay “against the notice of removal window dated 5 July 2017”.
On 18 July 2017, a Duty Judge of the First-tier Tribunal caused a letter to be sent to MTUK Solicitors, in which it was stated that the “July 2017 decision is certified as clearly unfounded, with reference to section 94 of the 2002 Act. Consequently, the Tribunal has no jurisdiction to admit or to consider that appeal”.
Subsequently, a decision was taken that the Judge hearing the residence card appeal, which was listed for 11 August 2017, would also consider, as a preliminary issue, whether a right of appeal lay against the notice of removal window.
At that hearing, the First-tier Tribunal Judge addressed the preliminary issue. He noted that Mr Mold, on behalf of the appellant, relied upon regulations 2 and 26 of the Immigration (European Economic Area) Regulations 2006, in submitting that a right of appeal did lie in respect of the notice of removal window.
Mr Mold drew attention to the definition of “EEA decision” in regulation 2. Such a decision is there defined as “a decision under these Regulations that concerns –
“…
(c) a person's removal from the United Kingdom ….”
Mr Mold submitted to the Judge that the notice in Form RED.0004 concerned the appellant's removal from the United Kingdom. The Judge did not agree. His reasoning was as follows:-
“10. I am satisfied that Mr Mold's submissions in relation to a right of appeal against the notice of removal window are misconceived for two reasons. First, I find that the notice is not a decision “made under the regulations”. As the Home Office guidance makes clear,
“normally Protection or Human Rights claimants without leave will receive a fresh notice starting the 3 month removal window (RED.0004 (fresh)) when they are appeal rights exhausted (ARE) and they become removable. Vulnerable group will receive a further notice by way of removal directions (IS 151D) or limited notice of removal (IS 151G)”.
11. The appellant became appeal rights exhausted in December 2003 and has been liable to being removed since then. The RED.0004 notice of removal window is served because the appellant is deemed to be removable and has nothing to do with the EEA regulations and is not an EEA decision.
12. Secondly, I find that the RED.0004 notice of removal window is not a decision which is concerned with a person's removal from the United Kingdom. The notice is just that and it is not a decision. The fact that the appellant has been notified of a removal window is a pre-curser (sic) to his eventual removal. Accordingly, the notice is not concerned with his removal from the United Kingdom, rather it concerns his potential removal, if at all.
13. For the above reasons, I find that there is no right of appeal against the issuance of a RED.0004 notice of removal window. Accordingly, there is no valid appeal in front of me in relation to the issuance of the notice.”
Before the Upper Tribunal, Mr Mold submitted that the Judge had erred in law in those conclusions. Mr Mold said that the respondent's Guidance — General Instruction: Immigration returns, enforcement and detention — arranging removal Version 1.0 26 April 2017 contained nothing to suggest that Form RED.0004 (fresh) could be used only in a case of protection or human rights claims. According to Mr Mold, the Judge had erred in concluding that the notice of removal window did not “concern” the appellant's removal from the United Kingdom. In Mr Mold's submission, it plainly did. This could be seen from the fact that the notice stated the appellant “will be given further notice of when you will be removed”. The second box in the Form also made provision for the recipient to be told he would not be removed after a certain date, without further notice.
For all these reasons, according to Mr Mold, the notice of removal window constituted an EEA decision, falling within regulation 2. This meant that regulation 26 operated to give the appellant a right of appeal against the EEA decision.
The Upper Tribunal rejects these submissions. The reason why the notice of removal window does not constitute an EEA decision, within the meaning of regulation 2, is not to do with whether the notice concerns a person's removal from the United Kingdom. Plainly, the notice of removal window does concern removal.
The Tribunal agrees with Ms Isherwood that the notice of removal window is, in reality, no more than a statement of a person's liability to removal from the United Kingdom. That liability arises from the fact that the person in question falls within the ambit of section 10 of the Immigration and Asylum Act 1999, as being a person who requires leave to remain in the United Kingdom, but does not have it....
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