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No in country appeal against EEA sham marriage removals says Upper Tribunal
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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  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.
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
— Steve Peers (@StevePeers) September 3, 2015
Permission to appeal to the Court of Appeal has apparently been granted:
Sales LJ grants permission to appeal from UT's recent decision in Bilal Ahmed) (EEA/s 10 appeal rights: effect) IJR: http://t.co/fbQLhZpxZq
— Zane Malik QC (@ZaneMalikQC) October 9, 2015
See detailed critique of Bilal Ahmed by Elspeth Guild: Reflecting EU law faithfully? R (Bilal Ahmed) v SSHD IJR  UKUT 00436 (IAC).