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Petition versus repudiation of EEA residence card does not suspend removal, as confirmed by the High Court

Immigration | 15-11-2018
Petition versus repudiation of EEA residence card does not suspend removal, as confirmed by the High Court

The High Court’s recent decision in R (Shafikul Islam) v Secretary of State for the Home Department[2018] EWHC 2939 (Admin) is yet another case on the aggravated issue of whether petitions against negations of EEA residence cards are suspensive of elimination.

Elimination after denial of EEA residence card was already settled law

 

Travelling back to three years ago (ancient history in immigration law) to the Upper Tribunal’s decision in (Bilal Ahmed) v SSHD (EEA/s 10 appeal rights: effect (IJR) [2015] UKUT 436 (IAC). The validation was that a person who applies for and is repudiated a residence card has no right to reside under EU law and can be removed under section 10 of the Immigration and Asylum Act 1999 as being without leave to remain.

The perplexing conclusion in Bilal Ahmed was sustained by the Court of Appeal. Further decisions of the High Court in R (Shote) v SSHD [2018] EWHC 87 (Admin) and R (Dogbey) v SSHD [2018] EWHC 1165 (QB), the Upper Tribunal in Ahmad v SSHD [2018] UKUT 84(IAC). So although the conclusion in Islam is not unanticipated, it’s thought-provoking to delve a little deeper into the law to see what the protest is all about.

 

Guidelines aimed at elimination are not an “EEA decision” engendering a right of petition

 

In this case, the claimant had protracted his Tier 4 visa and had applied to remain in the UK as an extended family member of his uncle. That application was repudiated and after various procedural back and forth the Upper Tribunal forwarded his case to the First-tier Tribunal for an appeal. This trailed the confirmation in Khan V SSHD (2017) EWCA Civ 1755 that Sala was erroneously decided and so extended family members of EU citizens did have a right of petition in cases like this after all.

Before the First-tier Tribunal hearing, Mr Islam was served with elimination directions against which he pursued a judicial review. He contended:

  1. That his appeal had suspensive consequence;
  2. That the principles set out in Kiarie and Byndlosshindered with his right to petition against the negation of the residence card.

The first dispute was, given the line of authority stated above, eradicated by deputy High Court judge Andrew Thomas QC. In particular, the judge found that a removal direction made under the 1999 Act did not count as an EEA decision to remove because it was not under the EEA Regulations.

On the second argument, the case of Dogbey had already determined that Kiarie and Byndloss did not apply to EEA cases. In particular, the Court of Appeal said:

  1. That an appeal against a residence card negation was not a human rights claim;
  2. That at an aforementioned time, the claimant had made a human rights claim which was certified and that certification had not been challenged; and
  3. No evidence had been shown why the appeal could not be effectively pursued if he had to return to Bangladesh

 

The thoroughfare unspoken for

 

Funnily enough, in an earlier decision of the Court of Appeal, Lord Justice Sales had precisely said that:

…if he is refused some EU entitlement to remain in the UK the decision made by the Secretary of State might be to the effect that he has no EU right to be in the UK and that accordingly she now sets removal directions to have him removed. In such a case, by virtue of the definition of “EEA decision” he is afforded an opportunity to raise his Convention rights against removal on his appeal to the FtT under regulation 26(1).

But the Upper Tribunal in another case called this observation “plainly obiter”. If what Sales LJ said in that case had been trailed, none of the succeeding cases would have been able to arrive at the conclusions they did.

 

Once eliminated, no pledge of return to be present at an appeal hearing

 

The vital flaw in cases where removal is attempted during the appeals process is that the Secretary of State cannot be the definitive arbitrator of whether an individual has right to reside under EU law. That is the unabridged point of having an autonomous and unprejudiced appeals process.

A supplementary problem is that, lest their appeal relates to their deportation, the EEA Regulations don’t have a mechanism for a person to return to attend their appeal hearing in person.

Outlandishly, Regulation 41 only allows people to be admitted to the UK provisionally for an appeal hearing in deportation cases however not in cases of people who are generally removed e.g. for being unlawful entrants or over stayers.

It is also speculative whether the phraseology is wide enough to comprehend having a legal counsel. However this is open to digression.