Islam, R (On the Application Of) v Secretary of State for the Home Department

The Claimant is 32 years old and a national of Bangladesh. He came to the UK on a Tier 4 (General) student visa in 2012 but overstayed. He does not currently have leave to remain but he has an outstanding appeal to the First Tier Tribunal (FTT) against the Defendant’s refusal to grant him an EEA residence card. He claims entitlement to residence on the grounds that he is the dependant of an extended family member who is an EEA national.

On 14^th March 2018 a notice of intention to remove (RED.0004) was served and the Claimant was detained with a view to his removal. Removal directions were served on 4^th April 2018 indicating that he was to be removed two days later, on 6th April 2018. At that stage, his appeal to the FTT was listed for hearing on 25^th April 2018.

This claim for judicial review was issued on 5^th April 2018, challenging the decisions to issue removal directions and to detain. On the same date, Choudhury J made an interim order granting a stay of the Claimant’s removal from the UK “until the determination of his application for permission to seek Judicial Review or the conclusion of the FTT hearing listed for 25 April 2018, whichever is earliest, or until further Order.” In fact, the appeal hearing before the FTT did not proceed on 25^th April 2018. The Claimant was released from detention on 20^th April 2018.

In these proceedings, the Claimant makes two challenges, namely:

The central issues which arise in this case are the following.

The relevant facts can be shortly stated. The Claimant first entered the UK in August 2012. He was 26 years old at the time and single. His mother, father and siblings have remained living in Bangladesh. He has a maternal uncle, who holds Italian nationality, who was already living in the UK.

The Claimant was given leave to enter as a student, initially until September 2013. This was later extended until December 2015 but for reasons outside his control it was curtailed so as to expire on 21^st March 2015.

The Claimant did not return to Bangladesh when his leave to remain expired. He has continued living in the UK as an overstayer since 22^nd March 2015. It is common ground that he has no lawful right to remain.

On 24^th June 2015, the Claimant made an application for an EEA residence card. He made the application on the basis that he was a dependant of an extended family member who is an EEA national (an ‘EFM’ claim). His claim was based upon his relationship with his maternal uncle.

The application was rejected by the Defendant by a decision dated 23^rd December 2015. The Defendant accepts the bare fact that the Claimant is related to an EEA national. However, in order to qualify under Regulation 8(2) of the Immigration (EEA) Regulations 2006 (which were the regulations applicable at the time) the Claimant also had to show that he had been dependent upon, or living in the same household as, his uncle before coming to the UK and that he has continued to be dependent upon him, or living in the same household, since arriving.

The Defendant decided that the Claimant had not established such a dependency and therefore did not qualify as an extended family member within the meaning of the Regulations. The decision letter went on to determine that the Claimant had no entitlement to remain in the UK on family or private life grounds, whether within the Immigration Rules or outside.

The letter of 23^rd December 2015 concluded:

“As you appear to have no alternative basis of stay in the United Kingdom you should now make arrangements to leave. If you fail to do so voluntarily your departure may be enforced. …

Regulation 26 of the Immigration (EEA) Regulations 2006 confers a right of appeal against this decision. However, this does not mean that, if you choose to appeal, you will be entitled to remain in the UK whilst the appeal is being considered.”

The Claimant appealed against the decision. No enforcement action was taken at that stage. On 2^nd December 2016, the FTT held (based on the Upper Tribunal’s decision in Sala (EFMs: Right of Appeal) (2016) UKUT 0411 IAC) that it did not have jurisdiction to hear the Claimant’s appeal. The Claimant appealed to the Upper Tribunal on the jurisdictional issue.

Meanwhile, on 11^th March 2017 the Defendant served a RED.0001 notice of removal on the Claimant, confirming that the Claimant did not have leave to remain and was liable to be removed. The notice states:

“You must now leave the UK. If you do not do so, you can be removed from the UK to Bangladesh. … Before removal you can now be detained or placed on reporting conditions.”

…

“Consequences of staying in the UK unlawfully

If you stay in the UK without leave

-

You can be detained

-

You can be prosecuted, fined and imprisoned

-

You can be removed and banned from returning to the UK

-

You will not be allowed to work

…”

On 30^th March 2017 the Claimant was served with notification of liability to be detained (form IS96). The form stated that the Claimant would be allowed temporary admission subject to conditions of residence and fortnightly reporting. Form IS96 makes it clear that it is not a grant of leave to remain. It states: “You remain liable to be detained.” There is no dispute that the Claimant at all times diligently complied with the two requirements. The fortnightly reporting was later relaxed to monthly reporting.

On 9^th November 2017, the Court of Appeal ruled in Khan v SSHD (2017) EWCA Civ 1755 that the FTT did have jurisdiction to hear EFM appeals and that Sala was wrongly decided. The decision was determinative of the Claimant’s appeal to the UT, in his favour.

On 15^th December 2017, Upper Tribunal Judge Plimmer made an order allowing the Claimant’s appeal and remitting the case to the First Tier Tribunal for a full hearing. There was provision for liberty to apply to the Upper Tribunal. For reasons which are unclear, the case was then listed for an oral hearing on 26^th February 2018. UTJ Kelly confirmed that the appeal had been allowed and the case remitted.

On 14^th March 2018, the Claimant was detained on reporting and served with a RED.0004 fresh notice of liability for removal. I will deal separately below with the detail of the subsequent detention decisions.

Pausing there, the Claimant’s case is that the decision to exercise the power of removal under Section 10 of the Immigration and Asylum Act 1999 was irrational and unjustified. He also asserts that it was an abuse of the Secretary of State’s power because (he asserts) it came suspiciously soon after the Upper Tribunal had confirmed its decision to remit the case to the FTT for hearing.

Written representations were made by Solicitors on the Claimant’s behalf. As already indicated above, on 4^th April 2018 the Claimant was notified that that removal was to take place on the 6^th of April 2018. The present claim for judicial review was issued on 5^th April 2018. Chodhury J granted interim relief which prevented removal prior to the proposed hearing on 25^th April 2018. Meanwhile, on 4^th April 2018 the Claimant’s Solicitors also made a human rights claim, filed in response to a notice under Section 120 of the Nationality, Immigration and Asylum Act 2002.

The Claimant made a bail application which was heard on 20^th April 2018. In his written response to the bail application, the Defendant stated that it was intended that the Section 120 submissions would be responded to by 30^th April 2018.

The Claimant was granted bail, on condition that financial security was provided. Subsequently, the hearing on 25^th April 2018 did not proceed and the appeal against the refusal of the EEA card is currently re-listed to be heard on 19^th November 2018.

It appears that following the Claimant’s release on bail the Defendant did not immediately progress the response to the Section 120 submissions. The Defendant eventually responded on 24^th August 2018. The submissions were rejected and certified as clearly unfounded pursuant to Section 94(1) of the Nationality, Immigration and Asylum Act 2002. There has been no challenge to that decision.

The decision to remove the Claimant was pursuant to the Defendant’s powers under Section 10 of the Immigration and Asylum Act 1999 (as amended). This provides as follows:

“10

(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.”

Section 92 of the Nationality, Immigration and Asylum Act 2002 sets down circumstances in which a person is entitled to appeal against an immigration decision from within the United Kingdom. Section 92 provides as follows:

“92- Appeal from within the United Kingdom.

(1)

A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2)

This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).

…

(4)

This section also applies to an appeal against an immigration decision if the appellant—

(a)

has made an asylum claim, or a human rights claim, while in the United Kingdom, or

(b)

is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom.”

The Claimant’s application for a residence card was made pursuant to the Immigration (EEA) Regulations 2006, which gives effect in domestic law to the Free Movement Directive (2004/38/EC). Regulation 8 deals with claims for residence by extended family members. The provisions relevant to this case are as follows:

“8.— Extended family member”

(1)

In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2)

A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—

(a)

the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;

(b)

the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c)

the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.

…

(6)

In these Regulations “relevant EEA national” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).”

An extended family member who has established their claim and been issued with a registration card is then treated as a “family member” for the purposes of the Regulations. Regulation 7(3) states:

“(3)

Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.” [Emphasis added].

The refusal to grant a residence card is an “EEA decision”. The definition of that phrase appears in Regulation 2(1) which states:

“EEA decision” means a decision under these Regulations that concerns a person's—

(a)

entitlement to be admitted to the United Kingdom;

(b)

entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or

(c)

removal from the United Kingdom.”

Regulation 29 makes provision for certain appeals to have suspensive effect. It states:

The Claimant submits that his case falls within the provisions of Section 92(4)(b) because he is a member of the family of an EEA national and the refusal to grant him a residence card is a breach of his rights under Directive 2004/38/EC (the ‘Free Movement Directive’). The Claimant therefore submits that the decision to remove him was unlawful because it was contrary to a statutory restriction on removal. He also submits that it was consequentially unlawful to detain him for the purpose of effecting an unlawful removal.

The Defendant submits that the Claimant’s case is misconceived. There is clear authority that an appeal against the refusal to grant an EEA residence card does not have suspensive effect. Unless and until the Claimant is granted a residence card, he is not a family member for these purposes and he has no right to remain.

These issues were considered by the Upper Tribunal in R (Bilal Ahmed) v SSHD (2015) UKUT 436 (IAC) and by the Court of Appeal R (Ahmed) v SSHD (2016) EWCA Civ 303. That case concerned an application for a residence card by a person claiming to be a spouse of an EEA national. The Defendant had determined that it was a marriage of convenience. On the issue of whether the appeal had suspensive effect, the Upper Tribunal summarised its decision as follows:

The Upper Tribunal held that there was no inherent right to be present in the UK in order to pursue an appeal against an immigration decision, and the right to be present only arose from statute. By virtue of Reg 29 of the Immigration (EEA) Regulations 2006, Parliament had specified which categories of appeal would have suspensive effect, and an appeal against the refusal to grant a residence card was not one of them. Section 92(4)(b) applied only to applicants who had already established that they were an EEA national or a family member of an EEA national, not those who were merely claiming that status.

The Court of Appeal upheld the decision. Laws LJ said (at para 13):

“13.

… there is in my judgment nothing in these statutory provisions to give the appellant's appeal against the refusal of a residence card suspensive effect so as to prevent his removal from the United Kingdom while the appeal is pending. On the contrary, the conferment of suspensive effect on appeals relating to EEA decisions listed at Regulation 2(1)(a) and (c) but not (b) raises the plain inference that it was the specific intention of the subordinate legislator to deny a 2(1)(b) appeal against refusal of a residence card any suspensive effect whatever.”

In respect of the Section 92(4)(b) argument, Laws LJ said (at para 24):

“Section 92(4)(b) refers to a person who is a family member of an EEA national, not a person who claims to be such.”

Similar arguments were advanced before Michael Fordham QC (DCHJ) in R (Shote) v SSHD [2018] EWHC 87 (Admin). In that case, the Claimant’s mother was an EEA national but her claim for the issue of a residence card was rejected on the grounds that she was not genuinely dependent upon her mother. The only distinction from Ahmed was that the case was brought under the revised 2016 EEA Regulations. The Deputy Judge held this was immaterial.

In Shote, the Claimant also advanced the further argument that, for the purposes of Section 10 of the 2002 Act, the question of whether or not the Claimant required leave to remain was an issue of precedent fact. She argued that if she could show that “objectively” she was eligible to a residence card as the family member of an EEA national she could not be removed under those provisions. The Deputy Judge rejected that submission (at paras 22 to 30 of his judgment) for reasons which I both agree with and adopt. This is not an issue of precedent fact.

In the present case, as in Shote, the Claimant has no more than a claim of eligibility for EEA rights. That claim has already been rejected. He is incapable of coming within Section 92(4)(b) because he has not yet established any right to remain in the UK, and in any event he is not deemed to be a family member unless and until he has been granted a residence card. To hold otherwise on the grounds that it was nonetheless “objectively” proven would require the Court to subvert and/or pre-empt the statutory appeal to the First Tier Tribunal. The most which the Claimant can legitimately say is that he has an outstanding appeal against the rejection of his claim, and that argument simply leads back to Reg 29 of the EEA Regulations.

Again, very similar arguments were advanced before Butcher J in R (Dogbey) v SSHD [2018] EWHC 1165 (QB). As in Ahmed, the case concerned a claim by the spouse of an EEA national which was rejected on the grounds that it was a marriage of convenience. Butcher J rejected the claim, adopting the reasoning given by the Deputy Judge in Shote.

In the present case, Mr Hussain sought to distinguish these decisions. He argued that the Defendant had accepted as long ago as 23^rd December 2015 that the Claimant was the nephew of an EEA national and therefore had acknowledged that he was a “family member” for the purposes of Section 92(4)(b) of the 2002 Act. I reject that argument. I accept Mr Malik’s submission that the Claimant is not a “family member” for these purposes unless and until he has satisfied the all of the conditions in Regs 7(3) and 8 of the EEA Regulations. In any event, the Claimant does not satisfy the final clause of Section 92(4)(b) (ie. that his removal is in breach of a right of residence in the UK).

Finally, I am satisfied also that the decision to exercise the power of removal under Section 10 of the 1999 Act was not unlawful on grounds of irrationality or abuse. There is no evidence that the power was exercised for an oblique or improper motive. As Mr Malik pointed out by reference to the various notices which had been served, the Claimant had been given ample warning that he had no right to remain in the UK pending the hearing of his appeal. It was not irrational to exercise the Section 10 power.

The Claimant submits that the decision to remove him from the UK when he still has an outstanding appeal to be heard is unlawful because it interferes with his rights to prepare and present his case before the Tribunal. He relies upon the decisions of the the Supreme Court in Kiarie and Byndloss and the Court of Appeal in Ahsan.

In my judgment, this argument fails in the present case, for a number of reasons.

Once again, the Claimant’s submissions in the present case mirror arguments which were considered and dismissed by Butcher J in Dogbey (at paras 15 to 18). I am satisfied that the Claimant’s argument fails for the same reasons.

In my judgment, the Claimant has not established that his removal would be unlawful contrary to Section 6 of the Human Rights Act 1998 or otherwise. He has not established that the procedural aspects of Art 8 are engaged, and in any event he has not established that such rights would be breached if he was required to present his appeal from abroad.

The conclusion is therefore that the Claimant’s challenge to the lawfulness of the removal decision fails on all grounds.

The Claimant’s case under this heading is that it would be unlawful to detain him in order to effect an unlawful removal. As such, the claim was dependent upon him succeeding on the first part of his claim. For the reasons already given, that claim fails.

The Claimant’s alternative case is that his detention was unlawful in any event on the grounds that it was at all stages unnecessary and that it was for an unreasonable period.

The decision to detain the Claimant was taken on the basis that that there was a risk that he would abscond in order to frustrate his removal. The Defendant relied upon the fact that the Claimant was an overstayer who had failed despite repeated requests to depart voluntarily. The Defendant also relied upon the fact that the Claimant did not have any close ties in the UK. At the time of his initial detention there were no barriers to the Claimant’s removal. As the chronology shows, he was detained on 14^th April 2018 and would have been removed on 6^th April 2018 but for the grant of the stay. In his favour, the Claimant has no criminal convictions. It is also relevant to note that for about 12 months he was subject to reporting conditions and that he always complied with them. Finally, it is relevant that he had an outstanding appeal and therefore an incentive to remain in contact with the authorities.

The Claimant’s case is that the decision to detain him was unjustified. There was at all times a presumption of release. The Claimant’s case is that the risk of absconding should have been determined as “low” (the forms show that it was considered to be “medium”). The Claimant also submitted that there were factual errors in the decision, such as an assessment of “medium risk of harm” and the conclusion that he had no close ties. I am satisfied that nothing turns on the alleged factual errors. Mr Malik was able to demonstrate that the medium risk of harm was a correct determination on the guidance, based on the Claimant’s long period of non-compliance with immigration law. There was also some evidence that HMRC records showed unlawful working, although this was not explored by either side. The conclusion that there were no close ties was appropriate in the circumstances. The fact that the Claimant had relatives in the UK was noted and taken into account, but it is very different from the sort of case where family responsibilities (such as supporting a spouse or children) are a factor which strongly mitigates against the risk of absconding.

In any event, the Claimant’s case is that there was a change of circumstances which should have led to the realisation that removal was not going to take place within a reasonable time. Specifically, on 4^th April 2018, the Claimant’s Solicitors advanced a human rights claim (the Section 120 submissions referred to above) which required investigation and response by the Defendant. On 5^th April 2018 Choudhury J granted a stay pending the appeal on 25^th April 2018. Further, Mr Hussain submits that it was wrong for the Defendant to assert in the written response to the bail application that the Section 120 submissions would be responded to by 30^th April 2018. Later evidence suggests that they were overlooked for some time and only responded to on 24^th August 2018.

Finally, Mr Hussain points to the fact that the decision granting the Claimant’s bail was made on 19^th April 2018 but the Claimant was not in fact released until 20^th April 2018. This argument was raised for the first time in a document headed “Response to Detailed Grounds of Defence” which is undated but included within the trial bundle. The Claimant submits that the Defendant has failed to explain the apparent delay. I was shown a copy of the bail decision during the hearing. The time at which the order was made is not stated. It is also signed by the financial surety on 19^th April 2018 but again there is no evidence of when that condition was complied with. There is no indication of when the decision was communicated to the detention centre.

There is no dispute that the Defendant had the power to detain the Claimant for the purpose of deciding whether or not to give removal directions and/or for effecting his removal, pursuant to Paragraph 16(2) of Schedule 2 to the Immigration Act 1971. That power arises where there are reasonable grounds for suspecting that a person is someone in respect of whom removal directions may be given.

The burden of justifying detention is on the Defendant. The exercise of such powers is subject to the ‘Hardial Singh’ principles. See: R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 All ER 983 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12. They are as follows:

What amounts to a reasonable period depends on all the circumstances of the case. There is no specified time. The Defendant is not required to identify a fixed date by which removal can reasonably be expected to take place, but there has to be a realistic prospect that it will be within a reasonable time. (See: R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and in particular the list of relevant factors at para 48). The risk of absconding is a critical and paramount factor in the balancing exercise, because if the person absconds it will defeat the primary purpose for which Parliament granted the power to detain. (See: Lumba at para 121 and Fardous v SSHD [2015] EWCA Civ 951 at paras 37 to 41). However, it is not a trump card which permits detention of any length.

The Court determines the proper boundaries of lawful detention but will have proper regard to any relevant factual determinations which the Secretary of State made at the time. Ultimately, it is for the Court to decide whether the power of detention has been lawfully used. (See: R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at para 62).

Although I recognise that the grounds for detention were not as strong as in many other cases, I am satisfied that the decision to detain the Claimant was justified. The fact that he had overstayed for approximately three years and that he had refused to return voluntarily were relevant factors. The relationship with his uncle was acknowledged and taken into account, but it was not the sort of close tie which would have had a significant impact on the risk of absconding. There were no ‘at risk’ factors in the present case. The Defendant was justified in concluding that that removal was likely to take place within a reasonable time.

I have given particularly careful consideration to the decision to maintain detention after 4^th April 2018. Again, I am satisfied that the decision was reasonable and justified. The effect of Choudhury J’s order was to stay removal only until 25^th April 2018 (or perhaps shortly thereafter, when the decision would be promulgated) which was a relatively short period of time. Also, I am satisfied that it was reasonable to conclude that a decision could be reached on the Section 120 submissions within 3 to 4 weeks. The matters raised by the Claimant were relatively straightforward and for the most part overlapped with the issues in the residence card appeal. It was therefore permissible to conclude as at 5^th April 2018 and all relevant stages thereafter that it was likely that the Claimant would be removed within a short period of time. The true change in circumstances only occurred when the FTT hearing was postponed towards the end of the month.

The argument that the Claimant should have been released on 19^th April 2018, not the next day, is one which was only raised at a late stage of these proceedings. There was no application to amend the Statement of Facts and Grounds under Rule 54.15 CPR or otherwise. The point was only raised in the undated Response to Detailed Grounds of Defence, a document which has no status under the rules, and no evidence was submitted on the issue. In particular, there was no evidence as to the timings of the decision on 19^th April 2018, the signing of the form and the communication of the outcome to the relevant authorities. Whilst recognising that it is for the Defendant to justify detention, I am not satisfied that an arguable case has been properly raised and established in the present case.

For the reasons stated, I therefore dismiss all claims for unlawful detention.