Back in July 2015, the Upper Tribunal delivered a puzzling judgment in the case of R (Bilal Ahmed) v SSHD (EEA/s 10 appeal rights: effect (IJR) [2015] UKUT 436 (IAC). The nub of the decision was that where the Secretary of State refuses an application on the basis that the marriage is one of convenience, that person is no longer a “spouse” under the EEA Regulations.

The rationale is that such a person has no right to reside under EU law and thus can be removed during the appeal process under section 10 of the Immigration and Asylum Act 1999 as being unlawfully resident. What was even more surprising was that the decision was upheld by the Court of Appeal.

Whilst the focus of that case (and almost all subsequent cases in this line) have been centred around a “marriage of convenience”, it is important to remember that the decision extends to all EEA appeals by non-EEA nationals.

Personally, I have found that removals in such cases are beginning to crop up more and more. This is one specific area of the law in which I have significant reservations about whether the judges really understand what’s going on. My observations which follow may be slightly biased because my attempts to prove Bilal Ahmed was wrong in the Court of Session in Scotland did not pan out too smoothly. Thankfully I didn’t have to worry as my client eventually succeeded after five minutes in the Tribunal!

The line of cases in this area has thus far seen judges too afraid to properly engage with the relevant provisions, with almost all cases being dismissed on technicalities. But the fundamental defect in cases where removal is attempted during the appeals process is that the Tribunal simply fails to appreciate that the Secretary of State cannot be the ultimate adjudicator of whether a person has right to reside under EU law. That is the whole point of having an independent and unbiased appeals process.

So whilst the Upper Tribunal’s recently reported decision in Ahmad (scope of appeals) [2018] UKUT 84 (IAC) is timely, it takes a completely wrong turn.

When a decision to remove is not a removal decision

The Ahmad case addresses whether a person can appeal against a notice of removal window, having been refused an EEA Residence Card and where an appeal is pending. The official headnote reads (so far as relevant for this post):

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.

Mr Ahmad was a Pakistani national who had married a British citizen. Strangely, there was no argument that the principles in Lounes were applicable so I’m surprised the Tribunal entertained the case at all. After his application for an EEA residence card was refused, he appealed. During the appeals process he was detained and made a human rights application. The application was refused and certified as “clearly unfounded”; Mr Ahmad was served with notice of a removal window (Form RED.0004). He then tried to lodge an appeal against the removal window notice.

Mr Ahmad’s main argument was a simple one (and a good one): that the notice giving him a window in which he would be removed was an “EEA decision” because it concerned his “removal from the United Kingdom”. That gave Mr Ahmad a right of appeal against the removal notice and as a result, any directions for his removal would have no effect for the duration of the appeals process.

The Tribunal squirmed out of this by saying that it was not a decision which been made under the EEA Regulations:

The Tribunal agrees… 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. The notice of removal window is not, therefore, a EEA decision, as defined by regulation 2.

In any event, even if the notice of removal window could be said to constitute a decision, in the present case, it is manifestly not made under the 2006 Regulations, as required by the definition in regulation 2

This was despite a passage from the judgment of Lord Justice Sales in Amirteymour v Secretary of State for the Home Department [2017] EWCA Civ 353 which said:

…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).

This was brushed under the carpet as being “plainly obiter” with the Tribunal stating that the Court of Appeal in Amirteymour had not heard argument on the matter.

Decision to remove following EEA residence card refusal is surely an EEA decision

With respect to the Tribunal, the contention that a removal window is not a decision to remove is far-fetched. It just so happened in Mr Ahmad’s case that the notice said he would be given further notice of when he would be removed. However, in a significant majority of cases, the directions simply state that a person will not be removed for seven days but then can be removed for up to three months thereafter without notice.

It cannot be the case that such a notice does not “concern” a person’s removal, simply because the removal window does not specify a date and time for the person’s removal, when it may be the very last warning sign before they are forced to step on a plane.

Using that logic, surely the Secretary of State would never serve removal directions with specific dates (which would allow for an appeal against the decision to remove) but could instead circumvent the system by simply serving removal windows (which would allow her to remove the person without notice and against which the Tribunal has said no appeal can be brought).

It must follow that the whole reason removal directions are being served is because the Secretary of State has refused to recognise that person’s rights under EU law. That is all the truer if the notice states that the decision is being made specifically because the marriage has been deemed one of convenience.

The Upper Tribunal has missed an excellent opportunity to answer the question of whether directions setting out the specific time of removal would be an “EEA decision”.

Let’s find a better test case

Having talked this over with the wonderful Joe Bryce (who you might remember from the Brexit Conference in September 2017), it does seem that in such cases the best remedy is not to judicially review the removal directions but to appeal them to the Tribunal instead, as Mr Ahmad did. Of course, the next step would be explaining why your case should be distinguished from Mr Ahmad’s. It seems to me that cases where the Secretary of State has said removal will take place without further notice or where a specific time has been set for removal stand the best chance of acting as test cases to overturn the Upper Tribunal’s decision.