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))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge John Freeman |
| Status | Reported |
| Date | 07 June 2016 |
| Published date | 16 June 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 24 May 2016 |
| Subject Matter | Citizens Directive: no suspensive appeals)(IJR |
| Appeal Number | [2016] UKUT 287 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
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 |
Before
Upper Tribunal Judge John FREEMAN
Between
The Queen on the application of Mexhun SHEHU
Applicant
and
The Secretary of State for the Home Department
Respondent
Representation:
Counsel for the applicant: Sandra Akinbolu (instructed by Malik & Malik)
Counsel for the respondent: William Irwin (instructed by GLD)
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.
JUDGMENT
1. 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].
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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 Bilal Ahmed (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.
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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.
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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.
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Laws LJ dealt with the Citizens Directive point as follows: it is worth citing what he had to say in full.
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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 from submitting his/her defence in person except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory."
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However, this provision has to be seen in context. It is succinctly explained in the reasoning of the Upper Tribunal at paragraph 28:
"Mr Karim's attempt to invoke Article 31 as in some way covering an appeal against the refusal of a residence card must fail. That Article occurs within Chapter VI of the Directive, which is headed 'RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH'. Article 27 (general principles) states that, subject to the provisions of Chapter VI 'Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health'. Article 27, together with Article 28 (protection against expulsion) and Article 29 (public health) accordingly informs who are the 'persons concerned' referred to in Article 31(1). They are Union citizens and their family members, subject to expulsion or removal measures. As a result, Article 31 has nothing whatsoever to say about a person who is not being expelled as a Union citizen or family member but who is appealing against a decision that he or she is not such a family member."
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I do not think that this reasoning is affected by Article 15, to which Mr Malik referred this morning. That Article is concerned effectively with prohibitions as such. In my judgment the Upper Tribunal's reasoning is plainly correct. I note, as the Upper Tribunal did at paragraph 27, that in an observation by the Commission on an earlier version of what became the Directive, COM/2001/0527 final, it was stated that:
"Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse."
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I have not found any assistance in the cases of Secretary of State for the Home Department v Islam, Rahman & Ors [2013] WLR 230 or McCarthy [2015] QB 151 (?) [sic: 651, or McCarthy and others [2014] EUECJ C-202/13], both decided in the Court of Justice. Mr Malik referred to them in the course of his submissions this morning.
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Accordingly in my judgment the Directive does not assist the appellant. His appeal against the refusal of a residence card had no suspensive effect, nor is there any provision conferring upon him a right not to be removed from the United Kingdom during the time provided for the giving of notice of appeal against a refusal of the residence card. Mr Malik contends otherwise at paragraph 25 of his skeleton.
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Miss Akinbolu boldly submitted that the Court of Appeal’s decision on this point in particular must be treated as per incuriam, since there was nothing to show that they had had the full text of article 31 before them. Lest I should be accused of the same failing, I shall set it out here: the title is ‘Procedural Safeguards’.
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1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.
2. Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except:
— where the expulsion decision is based on a previous judicial decision; or
— where the persons concerned have had previous access to judicial review; or
— where the expulsion decision is based on imperative grounds of public security under...
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