England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Upper Tribunal Judges Storey and Peter Lane)

		Royal Courts of Justice Strand London, WC2A 2LL
		8 March 2016

1. LORD JUSTICE LAWS: This is an appeal, with permission granted by Sales LJ on 7 October 2015, against a determination of the Upper Tribunal (Upper Tribunal Judges Storey and Peter Lane) promulgated on 24 July 2015. By its determination the Upper Tribunal dismissed the appellant's claim for judicial review of the decision of the Secretary of State made on 20 February 2015 to remove him from the United Kingdom.
2. The overriding issue in the case is whether the appellant could lawfully be removed pending the determination of his appeal against the refusal of a residence card as the family member of an EEA national. In fact as I shall show the appellant was not removed and remained in the United Kingdom to pursue his appeal which was at length dismissed on 14 August 2015. The issue is therefore moot from his point of view. We must accordingly decide whether we should nevertheless entertain the appeal in light of the acknowledged importance of the issue.
3. It will make for clarity if I first explain the case. The essential facts are short and not in dispute. They are summarised by the Upper Tribunal as follows:

"6. On 4 April 2011, the applicant, a citizen of Pakistan, arrived in the United Kingdom in possession of a Tier 4 Student visa. On 21 November 2014, the applicant married a Romanian national. On 17 December 2014, the applicant submitted an application for an EEA residence card, pursuant to the EEA Regulations. The applicant's leave to remain as a student expired on 22 December 2014.

7. On 20 February 2015, the applicant and his wife attended for interviews, conducted by a representative of the respondent. Following the interviews, the respondent concluded that the applicant's marriage was one of convenience. Since the applicant had by this point overstayed his leave, he was detained and served with a notice of a decision to remove, pursuant to section 10 of the 1999 Act. On 24 February 2015, the applicant issued his judicial review claim in the Upper Tribunal. The following day, the respondent refused the applicant's application for an EEA residence card. The applicant appealed against that decision to the First-tier Tribunal."

4. The judicial review claim was as I have said directed at the decision to remove the appellant made on 20 February 2015. Following an initial refusal, permission to seek judicial review was granted by Upper Tribunal Judge Storey on 23 March 2015. The judicial review came on for hearing on 8 June 2015 when the appellant was given leave to amend his grounds to contend that his statutory right of appeal against the refusal of the residence card on 25 February 2015 had the effect of suspending the Secretary of State's power to remove him from the United Kingdom pursuant to the decision of 20 February.
5. On 14 August, as I have said, the FTT (in fact constituted by the same judges, Judges Storey and Lane) dismissed his appeal against the refusal of the residence card, holding that the Secretary of State had proved that the appellant's marriage was one of convenience. Permission to appeal to the Upper Tribunal has, we are told, been refused.
6. The Upper Tribunal made it plain at the outset of the judicial review determination that the scenario of the present case, as they put it, is encountered in the tribunals with some frequency. It has been the subject of conflicting first instance decisions. Dicta in LO (Partner of EEA national) Nigeria [2009] UKAIT 00034 favour the appellant's position; whereas Abdullah, R (on the application of) v Secretary of State for the Home Department & Anor [2009] EWHC 1771 (Admin) favours that of the Secretary of State. It is well-established that the court should only proceed to entertain an appeal which on the facts is moot as between the parties "cautiously" or "sparingly". In this case on balance I would do so.
7. I turn to the relevant legislation. There are four statutory measures relevant to the issues in this case; three domestic, one European. They are in chronological order section 10 of the Immigration and Asylum Act 1999; provisions contained in the Nationality, Immigration and Asylum Act 2002; Directive 2004/38/EC on the right of EU citizens to move and reside freely within the territory of the Member States; and the Immigration (European Economic Area) Regulations 2006, which implement the Directive.
8. As the Upper Tribunal indicated, the Secretary of State decided to remove the appellant as an overstayer. The power to do so is given by section 10(1)(a) of the 1999 Act. The refusal of an EEA residence card is a "EEA decision" within the meaning of paragraph 2(1)(b) of the 2006 Regulations, which define an EEA decision thus:

"'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."

9. By Regulation 17 the Secretary of State must issue a residence card to a person who is not an EEA national but is the family member of an EEA national. By Regulation 7(1) family member includes spouse, but Regulation 2(1) shows that spouse does not include a party to a marriage of convenience. The Secretary of State refused the appellant's application for a residence card because she had concluded that he was such a party.
10. The right of appeal against an EEA decision, including the refusal of a residence card, is given by Regulation 26(1). It is common ground that there is no provision which forbids such an appeal to be brought while the appellant remains within the jurisdiction. But the question is whether the law confers on such an appellant a positive right not to be removed until his appeal has been determined. The Upper Tribunal held (paragraph 26) that:

"The basic flaw in the applicant's case is to conflate the absence of a statutory prohibition on the bringing of an appeal from within the United Kingdom with the existence of a right to be so present in order to bring such an appeal and to prosecute it to its conclusion."

11. What then do the statutory provisions tell us about the right, if any, to an in-country appeal? Section 82(1) of the 2002 Act confers a right of appeal against what is there described as an "immigration decision". Section 78(1) prohibits the removal from the United Kingdom of certain section 82(1) appellants (see section 78(4)) from the United Kingdom while their appeals are pending. Certain provisions of the 2002 Act are by Schedule 1 to the 2006 Regulations to have effect in relation to appeals under those Regulations; but section 78 is not one of them. However, Regulation 19 of the 2006 Regulations provides that certain appeals under the Regulations are to have suspensive effect. Regulation 29 provides in part:

"(1) This Regulation applies to appeals under these Regulations made to the First-tier Tribunal or the Upper Tribunal.

(2) If a person in the United Kingdom appeals against an EEA decision to refuse to admit him to the United Kingdom, any directions for his removal from the United Kingdom previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending.

(3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom, any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending."

12. It will be recalled that Regulation 2(1) defined three classes of EEA decision, of which a decision on an application for a residence card was the second, appearing at Regulation 2(1)(b). It will be seen that Regulation 29(2) gives suspensive effect to an appeal against an EEA decision of the kind set out at Regulation(2)(1)(a) and Regulation 19(3) gives such effect to an appeal against an EEA decision of the kind set out at Regulation 2(1)(c). But no suspensive effect is given to a Regulation 2(1)(b) EEA appeal against the refusal of a residence card.
13. Accordingly 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.
14. Regulation 27, to which Mr Malik referred this morning, is, with respect, neither here nor there.
15. This conclusion is in line with that of Blair J in Abdullah, whose reasoning, with respect, I need not set out. The contrary decision in LO is wrongly decided. I note that Regulation 29 was not there referred to.
16. Mr Malik (at paragraph 16 of his skeleton) asserts that the Upper Tribunal accepted that the appellant had a "in-country right of appeal" and (paragraph 17) that since that was so it was unnecessary for such an appeal to be catered for in Regulation 29. But the observation at paragraph 16 is I fear an egregious misdescription of what the Upper Tribunal said. I have cited the passage at paragraph 26 where the Upper Tribunal accept in terms that there is no "prohibition on the bringing of an appeal from within the United Kingdom" but rightly contrasts this uncontentious fact with the very different proposition that there is a right to be present to bring and prosecute such an appeal. The fact that an in-country appeal in relation to a residence card is not prohibited is in my judgment simply neutral.
17. The appellant next has a submission arising out of the terms of the Directive. He relies particularly on Article 31.4:

"Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory."

18. However, this provision has to be seen in context. It is succinctly explained in the reasoning of the Upper Tribunal at paragraph 28:

"Mr Karim's attempt to invoke Article 31 as in some way covering an appeal against the refusal of a residence card must fail. That Article occurs within Chapter VI of the Directive, which is headed 'RESTRICTIONS ON THE RIGHT OF ENTRY AND THE RIGHT OF RESIDENCE ON GROUNDS OF PUBLIC POLICY, PUBLIC SECURITY OR PUBLIC HEALTH'. Article 27 (general principles) states that, subject to the provisions of Chapter VI 'Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health'. Article 27, together with Article 28 (protection against expulsion) and Article 29 (public health) accordingly informs who are the 'persons concerned' referred to in Article 31(1). They are Union citizens and their family members, subject to expulsion or removal measures. As a result, Article 31 has nothing whatsoever to say about a person who is not being expelled as a Union citizen or family member but who is appealing against a decision that he or she is not such a family member."

19. I do not think that this reasoning is affected by Article 15, to which Mr Malik referred this morning. That Article is concerned effectively with prohibitions as such. In my judgment the Upper Tribunal's reasoning is plainly correct. I note, as the Upper Tribunal did at paragraph 27, that in an observation by the Commission on an earlier version of what became the Directive, COM/2001/0527 final, it was stated that:

"Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse."

20. I have not found any assistance in the cases of Secretary of State for the Home Department v Islam, Rahman & Ors [2013] WLR 230 or McCarthy [2015] QB 151 (?), both decided in the Court of Justice. Mr Malik referred to them in the course of his submissions this morning.
21. Accordingly in my judgment the Directive does not assist the appellant. His appeal against the refusal of a residence card had no suspensive effect, nor is there any provision conferring upon him a right not to be removed from the United Kingdom during the time provided for the giving of notice of appeal against a refusal of the residence card. Mr Malik contends otherwise at paragraph 25 of his skeleton.
22. There is a further point based on section 92(4)(b) of the 2002 Act. This is to the effect that the appellant enjoyed an in-country right of appeal against the decision of 20 February 2015 to remove him from the United Kingdom. That decision was an immigration decision attracting a right of appeal under section 82 of the 2002 Act. Section 92 prevents a section 82 appeal from being brought in country unless it falls within a specified category, including that provided for by section 92(4)(b), which is in these terms:

"(4)This section also applies to an appeal against an immigration decision if the appellant—

...

(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."

23. Mr Malik says that this provision applies to his client.
24. In my judgment it does not. 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. In fact, in one sense the point is idle in this case. The appellant has never sought to appeal the decision to remove him, and his marriage in the event has been definitively held to be one of convenience. He is not a family member of an EEA national. Thus Anwar v Secretary of state for the Home Department [2011] Volume 1 WLR 2252 does not assist Mr Malik. The power of a tribunal before which an appeal against a removal decision is brought to decide for itself whether the bar in section 92 applies to the case is moot: there is no such appeal here.
25. The appellant contended before the Upper Tribunal in dealing with the judicial review that the tribunal should have treated the issue of marriage of convenience, and therefore of the appellant's family membership, as one of precedent fact; that is the Upper Tribunal should itself have decided whether he was a family member and so entitled to a residence card and so not liable to removal. In fact the tribunal proceeded upon the footing that the issue for them was whether the Secretary of State had made a public law error in reaching his decision. Mr Malik referred this morning to Giri, R (On the Application Of) v Secretary of State for the Home Department [2015] EWCA Civ 784, where at paragraph 20 Richards LJ said this:

"The position would be different if we were concerned not with the exercise of the power under section 3 of the 1971 Act to grant leave to remain but with a decision to remove a person under section 10 of the 1999 Act on the ground that he or she had used deception in seeking leave to remain ... In that event, as a matter of statutory construction, the very existence of the power to remove would depend on deception having been used; and in judicial review proceedings challenging the decision to remove, the question whether deception had been used would be a precedent fact for determination by the court in accordance with Khawaja [the latter is a reference to the decision in their Lordships' House of Khawaja v Secretary of State for the Home Department [1984] AC 74]."

26. Those observations were of course obiter, but it seems to me that the Secretary of State is in any event right to submit at paragraph 70 of his skeleton as follows:

"The present case is not, however, one in which the very existence of the power to remove was dependent upon the establishing by the Secretary of State of a precedent fact. The Appellant had overstayed his leave. He was, accordingly, removable. His presentation of an appeal against the refusal of his residence card did not, by the 2006 Regulations, bar his removal."

27. Here, it was for the appellant to establish his EEA claim. That is done in such a case as this by application to the Secretary of State with a right of appeal thereafter, for which however the appellant has no right to be present in this country. It is not a case of precedent fact.
28. I see no reason therefore why in this class of case the Upper Tribunal should have departed from the ordinary public law approach. The legislature has by Regulation 26(1) of the 2006 Regulations provided for a merits appeal to the tribunal against the refusal of a residence card. That seems to me to conclude the matter.
29. For all the reasons that I have given I would dismiss the appeal.
30. LORD JUSTICE BEATSON: I agree. I emphasise, as I was party to the appeal in Giri, that the passage which my Lord has set out is clearly obiter. The context there is different because in this case there is no question of restricting or withdrawing an EEA right previously established. This appellant's application raises the different issue of whether he enjoys an EEA right to remain in the first place; in other words whether he is a beneficiary of the Directive. I agree with all that has fallen from my Lord.
31. LADY JUSTICE KING: I also agree, and would specifically endorse the comments of my Lord, Beatson LJ, in respect of Giri, as I too was a member of that constitution.