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 vexed issue of whether appeals against refusals of EEA residence cards are suspensive of removal (spoiler: no).

I previously expressed grave reservations that the law in this area had not developed in the right direction. But the current line of authority has developed so far that arguments to the contrary will probably be ripped apart by judges.

Removal after denial of EEA residence card was already settled law

Let’s travel 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 rationale was that a person who applies for and is refused 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 puzzling conclusion in Bilal Ahmed was upheld 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 and a case of my own in the Court of Session effectively shut the door on re-opening these types of cases. All confirmed the original decision in Bilal Ahmed.

So whilst the conclusion in Islam is not surprising, it’s interesting to delve a little deeper into the law to see what the fuss is all about.

Directions for removal are not an “EEA decision” generating a right of appeal

In this case, the claimant had overstayed his Tier 4 visa and had applied to remain in the UK as an extended family member of his uncle. That application was refused and after sundry procedural to-ing and fro-ing the Upper Tribunal remitted his case to the First-tier Tribunal for an appeal. This followed the confirmation in Khan v SSHD (2017) EWCA Civ 1755 that Sala was wrongly decided and so extended family members of EU citizens did have a right of appeal in cases like this after all.

Before the First-tier Tribunal hearing, Mr Islam was served with removal directions against which he sought judicial review. He argued:

1. That his appeal had suspensive effect;
2. That the principles set out in Kiarie and Byndloss interfered with his right to appeal against the refusal of the residence card.

The first argument was, given the line of authority mentioned above, obliterated 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 point, the case of Dogbey had already established 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 refusal was not a human rights claim;
2. That at a previous 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 road not taken

Funnily enough, in a previous decision of the Court of Appeal, Lord Justice Sales had specifically 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 followed, none of the subsequent cases would have been able to arrive at the conclusions they did.

Once removed, no guarantee of return to attend appeal hearing

The fundamental defect in cases where removal is attempted during the appeals process is 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.

An additional problem is that, unless 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.

Strangely, Regulation 41 only permits people to be admitted to the UK temporarily for an appeal hearing in deportation cases but not in cases of people who are generally removed e.g. for being illegal entrants or overstayers.

I also wonder whether the wording (“P wants to make submissions before the First-tier Tribunal…in person”) is wide enough to encompass having a legal representative. But I digress.

The bottom line is that if a person is removed under Section 10 of the 1999 Act, the law doesn’t provide any mechanism for them to return temporarily to attend their appeal. To expel a person with a pending appeal, who is not a criminal, from giving evidence in person, seems plainly wrong and a huge omission in our immigration law.