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In R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 436 (IAC) the Upper Tribunal concludes that there is no in country right of appeal where a non EEA foreign national marries an EEA national and applies for a residence card, the residence card application is refused on the basis that the marriage is a sham and the Home Office takes removal action against the non EEA national. The official headnote:
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
If this were to occur, the non EEA national were to suffer financial losses and the appeal were to succeed with the effect that the residence card is ultimately granted, the non EEA national would have a very good EU law damages claim against the Home Office.
UPDATE 3/9/15:
Looks like there will be a wait for any clarification from the CJEU on suspensive rights of appeal:
CJEU, asylum law: AG opinion says important national court questions re suspensive effect of appeal are inadmissible: http://t.co/rGq24KG26i
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.
I’m reading this on my phone, but is our me or had the UT not considered article 35 of the directive which appears to bring the appellant within the terms of article 31?
Gone back to rad it again, UT does mentions Art 35 but its interpretation does seem to be very narrow.
On the other hand if the UT are taking this view it appears to me that on appeal the HO are only going to be able to cross examine one of the parties to the relationship, meaning that there is less chance of different answers being given in evidence.
2 responses
I’m reading this on my phone, but is our me or had the UT not considered article 35 of the directive which appears to bring the appellant within the terms of article 31?
Gone back to rad it again, UT does mentions Art 35 but its interpretation does seem to be very narrow.
On the other hand if the UT are taking this view it appears to me that on appeal the HO are only going to be able to cross examine one of the parties to the relationship, meaning that there is less chance of different answers being given in evidence.