England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/05/2018

John Cavanagh QC:

Introduction

1. In these proceedings, the Claimant, Mr Ahmad, who is a national of Pakistan, claims that he was unlawfully detained by the Defendant from 13 July 2017 until he was released from detention on 28 July 2017, 15 days later. The Claimant was detained shortly after he was notified that his application for an EEA residence card had been rejected. The Claimant was an overstayer whose application for leave to remain on Article 8 (family and private life) grounds had been rejected and certified as clearly unfounded. On 2 February 2016, the Claimant had been notified of this decision and that he was liable to detention and removal. He renewed his application under Article 8 on 29 February 2016, but this was also rejected, on 20 December 2016. In the meantime, the Claimant had applied for a residence card on the ground of his marriage to Ms Giogiana Magdalena Podeanu, a Romanian national with Treaty rights to work in the UK. This application was rejected on 6 June 2017 on the basis of the Defendant's view that the marriage was a marriage of convenience that had been entered into in order to enable the Claimant to remain in the UK. At the time of the Claimant's detention on 13 July 2017, he had appealed against the decision to refuse him a residence card and the appeal was pending. Subsequently, on 9 March 2018, the First-Tier Tribunal (Judge Miles) allowed the Claimant's appeal against the Defendant's refusal to issue him with an EEA residence card.
2. The Claimant was detained at a reporting appointment on 13 July 2017, and removal directions were served on him, informing him that he was to be removed to Pakistan on 16 July 2017.
3. On 14 July 2017, a claim for judicial review was filed on behalf of the Claimant with the Upper Tribunal. The claim challenged the lawfulness of the decision to remove the Claimant from the UK and to detain him pending his removal, and also sought interim relief to prevent his removal and to procure his release from detention pending the outcome of the judicial review proceedings. The claim form contained three grounds of challenge. These were that:

i) The decision to decline to grant the Claimant a residence card was unlawful because the decision that the Claimant's marriage was a marriage of convenience was irrational, and the decision-maker had failed to take account of relevant material;

ii) The Claimant could not lawfully be removed whilst he had an outstanding appeal before the First-Tier Tribunal in relation to the refusal to grant him a residence card; and

iii) His detention was unlawful.

4. The proceedings were transferred to the Administrative Court by Upper Tribunal Judge O'Connor because the claim included a claim for unlawful detention. On 16 July 2017, Nicola Davies J granted a stay of removal and on the same day the Defendant deferred the removal directions. As I have said, the Claimant was released from detention on 28 July 2017. Permission to apply for judicial review was refused on the papers by Karon Monaghan QC on 27 October 2017, but permission was subsequently granted on all three grounds by Helen Mountfield QC on 20 December 2018, at an oral renewal hearing.
5. The Claimant has been represented by Mr Guy Davison and the Secretary of State by Mr Andrew Byass. I am grateful to them both for their assistance.
6. The issues have narrowed considerably since permission was granted. As the Claimant's appeal in respect of the residence card has been allowed, there is no longer any current risk that he might be removed from the United Kingdom. The only remaining issue is the claim for unlawful detention.
7. Moreover, Mr Davison has made clear in his oral submissions that he is no longer contending that it would automatically have been unlawful to remove the Claimant from the UK whilst he had an outstanding appeal before the First-Tier Tribunal in relation to the refusal to grant him a residence card. He accepts, rightly in my view, that such an argument would stand no prospect of success in light of the ruling of the Court of Appeal in Bilal Ahmed v Secretary of State for the Home Department [2016] EWCA Civ 303 (to which I will return) to the effect that an appeal against a decision not to grant a residence card is 'non-suspensive', in that it does not operate so as to suspend the Defendant's power to detain or remove an appellant.
8. Mr Davidson's main argument is that the decision to refuse to grant the Claimant a residence card on 6 June 2017 was irrational or otherwise in breach of public law, and that this rendered the Claimant's detention unlawful.
9. Mr Davison contends that the decision to refuse the residence card was in breach of public law in the following respects:

i) It was irrational;

ii) The decision-maker failed to take account of all relevant considerations and/or to refer all relevant considerations in the decision letter; and/or

iii) The decision was vitiated by procedural unfairness. The sole or main reason for rejection was that the Claimant and Ms Podeanu had been inconsistent in some answers they had given when interviewed by a representative of the Home Office on 19 October 2016, but this had not been put to them before the decision on the residence card was taken and they had not been given an opportunity to give their explanation.

10. Mr Davison accepts that it is not in every case that an error of public law in relation to a relevant decision will render a person's detention unlawful, but he contends that, in the circumstances of the present case, the errors of public law in relation to the residence card rendered the Claimant's detention unlawful.
11. Mr Davison submits, in the alternative, that it was unlawful for the Defendant to act on the decision that the Claimant's marriage was a marriage of convenience by taking steps to detain him and to arrange for his removal from the UK, without giving the Claimant the right to respond to the allegation that his marriage was a marriage of convenience.
12. On behalf of the Defendant, Mr Byass contends that there was no error of public law in the decision in relation to the residence card. The First-Tier Tribunal is not limited in its appeal jurisdiction to examining decisions about residence cards to check if they were irrational or otherwise vitiated by errors of public law. The First-Tier Tribunal is entitled to look at all of the evidence, including any fresh evidence, and to come to its own decision as regards whether the appellant is entitled to a residence card. It therefore does not follow from the fact that the First-Tier Tribunal allowed the appeal that the Defendant must have made a 'public law' error in its original decision. Mr Byass submits that, in fact, there was no such error.
13. Mr Byass further submits that, even if there had been a public law error in relation to the Defendant's decision regarding the residence card, it was not such as to render unlawful the decision to detain.
14. In addition, he submits that there was no obligation for the Defendant to give the Claimant an opportunity to respond to the finding that his marriage was a marriage of convenience before he was detained.
15. Against that background, there are four questions for me to decide in relation to liability. These are:

i) The significance of the ruling in Bilal Ahmed;

ii) Was there an error of public law in the Defendant's decision of 6 June 2017 in relation to the residence card?;

iii) If there was an error of public law in relation to the residence card decision, did this error render the detention itself unlawful?; and

iv) Did the Defendant act in breach of the Claimant's public law rights by deciding to detain and remove him without first giving him an opportunity to answer the Defendant's concerns that his marriage was a marriage of convenience?

16. I will first summarise the relevant facts in greater detail and will then deal with these issues in turn.
17. Before doing so, however, I should deal with one other matter. Since the Claimant is no longer in detention, the only remedy available to him if he is successful is the remedy of damages.
18. This judgment deals only with the issue of liability. With the agreement of counsel, the hearing on 24 April 2018 dealt only with the legal arguments that are relevant to the issue of liability. It was agreed that the Court would proceed in this way, on the basis that, if the Claimant succeeds on liability, then directions can at a later date be given as regards the future conduct of the remedy stage of these proceedings. In many cases, where the only issue is damages for unlawful detention, it is appropriate to transfer the proceedings from the Administrative Court to the County Court. This applies in particular where it will be necessary for there to be disclosure and cross-examination of witnesses: see Swaran v Secretary of State for the Home Department [2014] EWHC 1062 (Admin), per Dingemans J at paragraphs 30-34. I have taken the view that it would be in the interests of justice and in accordance with the overriding objective to deal first with liability, and for this to be done in the Administrative Court, as the issues relating to liability are matters of legal argument of the sort that are habitually dealt with in the Administrative Court. If the Claimant is successful on liability, then disclosure, further witness evidence, and, potentially, cross-examination will be necessary and consideration would have to be given to whether this is most conveniently done at a further hearing of the Administrative Court, with appropriate directions, or whether the proceedings should at that stage be transferred to the County Court. (I should add that I have given the Claimant leave to rely upon a witness statement and exhibits which he filed on 21 March 2018. This evidence deals principally with matters going to remedy.)

The relevant facts

19. The Claimant entered the UK on 16 April 2011 as a Tier 4 (General) student, with leave to remain until 11 August 2014. The Claimant's leave to remain was extended until 28 December 2015, but on 12 June 2015 the Tier 4 sponsoring college advised the Defendant that the Claimant had withdrawn from his studies. As a result, on 19 August 2015, the Defendant curtailed the Claimant's leave to remain so as to expire on 27 October 2015, with no right of appeal.
20. On 27 October 2015, the Claimant applied for leave to remain on the ground of Article 8 (private and family life). This was not on the basis of the Claimant's relationship with Ms Podeanu, but on the basis of the Claimant's relationship with his uncle and his uncle's children.
21. On 2 February 2016, the Defendant rejected the Claimant's application for leave to remain on Article 8 grounds, and certified his application as clearly unfounded. The Claimant was informed that he had an out-of-country right of appeal, and that he was liable to removal from the UK pursuant to s10 of the Immigration and Asylum Act 1999. The Claimant was also informed that he was liable to be detained.
22. On 29 February 2016, the Claimant served a renewed application for leave to remain under Art 8. He relied upon his relationship with his uncle and his uncle's children and also relied upon his relationship with Ms Podeanu. At this stage he had gone through an Islamic marriage ceremony with her (on 22 November 2015) but this is not recognised for civil purposes, and there had been no civil marriage ceremony that was recognised in UK law.
23. On 19 October 2016, after giving notice of marriage, the Claimant and Ms Podeanu underwent a marriage interview with the Defendant. The form that they signed at the commencement of the interview process said,

"You have been invited for interview to dispel concerns that the Home Office has as to whether your relationship is genuine or not. The information you provide will be taken into consideration in determining this… You will be interviewed separately from the other party who gave notice with you. You will be asked questions and will be given the opportunity to ask questions at the end of the interview."

24. It is clear, therefore, that the Claimant and Ms Podeanu were aware what the purpose of the interview was. They signed to indicate that they understood the explanation of the procedures. At the end of the interview, the Claimant also signed to confirm that he had been informed of the purpose of the interview, that he had understood the questions put to him, and that he had been given the opportunity to provide additional information. He further confirmed that he had been given the opportunity at the end of the interview to make further comments. After the interview, on the same day, the Claimant and Ms Podeanu were told that the Defendant considered their proposed marriage to be a marriage of convenience. They showed no emotion.
25. On 22 November 2016, the Claimant entered into a civil marriage ceremony with Ms Podeanu.
26. On 20 December 2016, the Defendant notified the Claimant that the Defendant did not regard the Article 8 application of 29 February 2016 as being a fresh claim with a reasonable prospect of success. The Claimant was informed that the decision of 2 February 2016 would not be reversed, and that, in the absence of strong countervailing circumstances, there were no barriers to his removal. He was encouraged to make arrangements to leave the UK voluntarily.
27. The day before, on 19 December 2016, the Claimant submitted an application for an EEA residence card as a family member of a person with Treaty rights to work in the UK, under the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052, 'the 2016 Regulations'). The 2016 Regulations replaced the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003, 'the 2006 Regulations'). Both sets of Regulations were made to give effect in UK law to the Free Movement of Persons Directive 2004/38/EC.
28. Under the 2016 Regulations (which were in force at the relevant time, but which are materially identical to the 2006 Regulations in all relevant respects), a person has the right to reside in the UK if that person is the spouse of a national of an EEA country who has Treaty rights to work in the UK. The Claimant was therefore claiming the right to reside as the spouse of Ms Podeanu, who is a person with Treaty rights to work in the UK.
29. On 6 June 2017, the Defendant notified the Claimant that his application for a residence card as the family member of Ms Podeanu had been refused. The explanation given was that the Home Office had concluded that the relationship between the Claimant and Ms Podeanu was one of convenience and was for the sole purpose of immigration. The decision-maker decided that the Claimant had not provided adequate evidence that he was related to his EEA spouse. The right to a residence card applies to a 'family member' of the EEA national with Treaty rights to work in the UK. This includes the EEA national's spouse: 2016 Regulations, reg 7(1). However, the definition provision, reg 2, provides that 'spouse' does not include a party to a marriage of convenience.
30. The letter of 6 June 2017 gave an explanation for the reason why the decision-maker had concluded that the Claimant's marriage was a marriage of convenience. The main reason given was that the Claimant and Ms Podeanu had given inconsistent answers when they were interviewed separately on 19 October 2016, and had given answers which would not have been expected from a couple who had a genuine relationship. In particular:

i) Ms Podeanu had not known the Claimant's date of birth;

ii) They had given different names for the friend of the Claimant who had obtained a job for Ms Podeanu at Pizza Hut;

iii) They had given completely different answers when they were asked where they had eaten dinner the previous night and what they had eaten;

iv) They had given different versions of events when asked about the proposal of marriage. The Claimant said that at first Ms Podeanu had said 'no', whereas Ms Podeanu said that she had immediately said 'yes';

v) There were discrepancies in their descriptions of a holiday they said that they had in Scotland in Summer 2016. The Claimant said that they stayed in a tent and Ms Podeanu said that they had stayed in a caravan. The Claimant said that they had visited Inverness and Edinburgh, whilst Ms Podeanu said that they had not visited any cities;

vi) The Claimant said that he had a provisional driving licence, whilst Ms Podeanu said that he did not have any driving licence;

vii) The Claimant said that he had a moped whereas Ms Podeanu did not know the Claimant had a moped; and

viii) The Claimant said that Ms Podeanu visited his uncle's home a lot and played with his children, whereas Ms Podeanu said that she had only been to the house twice and did not know the children's names.

31. The other points made in the letter of 6 June 2017 were that the Claimant and Ms Podeanu had entered into an Islamic marriage within six weeks of her arrival in the UK from Romania, and that when, on 19 October 2016, they were told the conclusion reached as result of the interview (that the marriage was one of convenience), neither of them showed any shock or emotional response.
32. A note dated 6 June 2017 on the 'Integrity Search Detailed Report' maintained by the Defendant, but which would not have been disclosed to the Claimant (were it not for these proceedings) and which was plainly written by the decision-maker, states:

"For a detailed summary of the reasons for refusal please refer to the DGP refusal letter. Application for a Biometric Residence Card is refused under regulation: Sham…. Interviewed and there are too many blatant errors in basic answers given. Sponsor [Ms Podeanu] entered the UK 22/09/15, claims to have met sponsor 1 month later and then moved in on 02/11/15 (less than 6 weeks). Leads me to suspect she is a fly-in bride."

33. On 19 June 2017, the Claimant appealed to the First-Tier Tribunal. The grounds of appeal, settled by solicitors, included the contention that the Defendant 'interpreted information in a way which was manifestly unjust and unfair to the [Claimant]', that the Defendant had not sufficiently discharged the burden of proving that the marriage was a marriage of convenience, that the decision-maker had not given appropriate weight to substantial corroborating evidence, and that the decision-maker had drawn unreasonable inferences. The grounds of appeal also invited the First-Tier Tribunal to review the merits of this case, and to take account of further evidence which would be provided in due course.
34. On 29 June 2017, the Claimant was served with a fresh notice of a removal window. On 4 July 2017, the Claimant's solicitors notified the Defendant that the Claimant had appealed against the refusal of the residence card. A note dated 6 July 2017 on the 'Integrity Search Detailed Report' stated, 'been advised that appeal subject has pending is non-suspensive and therefore subject is still removable'.
35. On 13 July 2017, when reporting, the Claimant was detained, and removal directions were served on him to the effect that he was to be removed to Pakistan on 16 July 2017. The form that was served upon the Claimant said, 'I am ordering your detention under powers contained under the Immigration Act 1971, the National Immigration and Asylum Act 2002, the UK Borders Act 2007, or the Immigration (EEA) Regulations 2016'. In fact, as I understand it, the Claimant was not detained under powers contained the 2016 Regulations. Rather, the decision to detain him was based on the fact that the Claimant was an overstayer who had failed in his application for leave to remain based on his Art 8 rights. The contemporaneous documentation produced by the Defendant makes clear that this was the position. In other words, the Claimant's detention was pursuant to the certification on 2 February 2016 that the Claimant's reliance upon Art 8 was clearly unfounded. The decision to detain was made under paragraph 16 of Schedule 2 to the Immigration Act 1971. The fact that the Claimant's application for a residence card had been unsuccessful, and the fact that he was regarded as having entered into a marriage of convenience, were not the reasons for his detention and proposed removal. It would have happened anyway. Rather, the residence card issue was regarded as not being a barrier to his removal, because the appeal right in relation to a residence card was non-suspensive. Put another way, even if the Claimant had not applied for a residence card, and even if he had not (in the Defendant's view) entered into a marriage of convenience, he would still have been detained with a view to removal.
36. As I have already mentioned, the Claimant issued proceedings for judicial review the following day, and on 16 July 2017, Mrs Justice Nicola Davies granted a stay of removal directions. The removal directions were deferred, and the Claimant was released from detention on 28 July 2017.
37. The Claimant's appeal against the decision not to grant him a residence card was heard on 20 February 2018 by Judge Miles. The Claimant supplied the First-Tier Tribunal with further evidence in addition to the evidence that had been provided to the Defendant in advance of the original decision. The appeal was allowed and written reasons were given by Judge Miles on 9 March 2018. Judge Miles's reasons make clear that he had considered all of the evidence, including the fresh evidence, at length and in the round, and that he took the view that the overwhelming preponderance of the evidence as a whole supported the Claimant's contention that his marriage to Ms Podeanu was genuine. Judge Miles was shown a transcript of the interview notes. Judge Miles expressed the view that a number of the matters relied upon by the Secretary of State in the refusal letter were of little weight and that, whilst some individual answers might raise some concerns, when the evidence was looked at holistically, it was clear that the marriage was genuine. Judge Miles said that, even on the interviews themselves, and without regard to the other supporting evidence, it seemed to him that there was a far greater degree of consistency than inconsistency between the Claimant and Ms Podeanu.

Discussion

The significance of the judgment in Bilal Ahmed

38. During oral argument, I raised with both counsel the question whether the ruling of the Court of Appeal in Bilal Ahmed provides an insuperable obstacle to the Claimant's claim. Neither Mr Davison, for the Claimant, not Mr Byass, for the Defendant, submitted that it does. Mr Byass submitted that Bilal Ahmed is relevant to the extent that it supports his submission that, even if there was a public law error in the Defendant's decision in relation to the residence card, the public law error was not of such a fundamental nature that it infected and rendered unlawful the decision to detain the Claimant. However, he did not go further and submit that Bilal Ahmed was a complete answer to the claim of unlawful detention.
39. In my judgment, however, the ruling in Bilal Ahmed does provide a complete answer to the Claimant's claim. However, given that the point was not relied upon by counsel for the Defendant, I will not decide the case solely on this basis.
40. Bilal Ahmed is authority for the proposition that an appeal against the refusal of a residence card is non-suspensive, ie it does not suspend the Defendant's power to remove a person from the UK. Bilal Ahmed was a case on the 2006 Regulations, but there is no material difference between the 2006 Regulations and the 2016 Regulations.
41. Mr Bilal Ahmed was, like the Claimant, an overstayer. Just before his leave to remain expired, he married a Romanian national. After his leave to remain had expired, he and his wife were interviewed by a representative of the Home Office and the conclusion was reached that the marriage was a marriage of convenience. Mr Ahmed was detained and served with a notice of a decision to remove under section 10 of the Immigration and Asylum Act 1999. Like the Claimant, therefore, the decision to remove Mr Ahmed was taken under section 10 of the 1999 Act, and on the basis that he was an overstayer, not under the EEA Regulations. Mr Ahmed issued a judicial review claim in the Upper Tribunal and, the following day, was notified of the decision to refuse his application for a residence card. Mr Ahmed appealed but, unlike the Claimant, his appeal was ultimately unsuccessful and the First-Tier Tribunal upheld the Home Office's finding that the marriage was a marriage of convenience.
42. Before the Court of Appeal, Mr Ahmed contended that his statutory right of appeal against the refusal of a residence card had the effect of suspending the Secretary of State's power to remove him from the United Kingdom pursuant to the decision made under s10 of the 1999 Act.
43. The Court of Appeal rejected Mr Ahmed's argument. The Court accepted that a right of appeal against the refusal of a residence card (given by regulation 26(1) of the 2006 Regulations and regulation 36(1) of the 2016 Regulations) may be brought whilst the appellant remains within the jurisdiction. However, the Court of Appeal approved the statement of the Upper Tribunal that:

"The basic flaw in the applicant's case is to conflate the absence of a statutory provision 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" (Judgment, paragraph 10)

44. The Court of Appeal pointed out that regulation 29 of the 2006 Regulations (now regulation 40 of the 2016 Regulations) specified the classes of appeal against an 'EEA decision' which had the effect of suspending the power of the Secretary of State to give directions for the person's removal, pending the outcome of the appeal. Regulation 2(1) of the 2006 Regulations (and regulation 2(1) of the 2016 Regulations) defined three classes of 'EEA decision', namely a decision concerning a person's (a) entitlement to be admitted to the United Kingdom; (b) entitlement to be issued with or have renewed, or not have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or (c) removal from the United Kingdom. The Court of Appeal pointed out that Regulation 29 of the 2006 Regulations gave suspensive effect to an appeal against an EEA decision of a kind set out at regulation 2(1)(a) and 2(1)(c), but did not give suspensive effect to an appeal against an EEA decision under regulation 2(1)(b) consisting of the refusal of a residence card. At paragraph 13 of the judgment, Laws LJ said that this 'raises the plain inference that it was the specific intention of the subordinate legislator to deny a 2(1)(b) appeal against a refusal of a residence card any suspensive effect whatsoever.'
45. The Court of Appeal also rejected an argument on behalf of Mr Ahmed to the effect that Directive 2004/38/EC required that UK law provide that an appeal against a residence card decision has automatic suspensory effect, pointing out that an observation by the European Commission on an earlier version of what became the Directive stated that, 'Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangement open to abuse.' (Judgment, paragraph 19).
46. As I have said, Bilal Ahmed was decided under the 2006 Regulations, but the relevant language of the 2016 Regulations is the same and so the ruling in Bilal Ahmed is binding as regards appeals under the 2016 Regulations, such as the Claimant's.
47. There is another part of the Bilal Ahmed judgment which is relevant to the present case. At paragraphs 25-30, the Court recognised that there may be a difference between cases in which the question is whether an EEA right that had previously been established should be removed, and a case, like Bilal Ahmed (and the present case), in which the application under the EEA Regulations raised the question whether the application enjoyed an EEA right in the first place. The Court of Appeal pointed out that the decision to remove Mr Ahmed had not been based upon the EEA decision, but was because he was an overstayer. At paragraphs 26 and 27, Laws LJ said:

"26…. It seems to me that the Secretary of State was 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 a residence card did not, by the 2006 Regulations, bar his removal.'

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."

48. As I have said, Mr Davison accepts that the authority of Bilal Ahmed means that it is not open to him to contend that the very fact that the Claimant was pursuing an appeal against the residence card decision means that it was not lawful for the Defendant to remove him, or to detain him pending removal. However, his argument, as I understand it, is that if a decision to decline to grant a residence card was not just wrong (in the sense that the First-Tier Tribunal disagreed with it) but was defective on public law grounds, then the position is different. His argument is that there was no valid basis for deciding that the marriage was a marriage of convenience and that this means that, from the date of the marriage onwards, the Claimant had a right to reside in the UK. The erroneous decision to decline to grant him a residence card did not detract from this. It follows, he says, that, as at 13 July 2017, it was not lawful for the Defendant to issue removal directions for the Claimant or to detain him pending removal: at that point, the Claimant had a right to remain in the UK, given to him by the EEA Regulations.
49. As I have also said, Mr Byass on behalf of the Secretary of State did not submit that the premise upon which this argument was based was wrong. He accepted that, if there had been a public law error in respect of the refusal of a residence card, then the Defendant had no legal right to remove him, even if that public law error had not yet been put right by the First-Tier Tribunal. His argument was that (a) there was no such public law error and (b) if there was, it was not such as to render unlawful the decision to detain the Claimant pending removal, on the basis of the principle set out in Draga (see below).
50. In my judgment, however, this premise is wrong. Even if the decision by the Defendant to refuse a residence card was tainted by a public law error, this did not affect or render unlawful the decision to remove the Claimant or the decision to detain him pending removal. This is because the legal authority for the Claimant's detention and proposed removal was not derived from the EEA Regulations. There is a power under the 2016 Regulations to remove an EEA national or a family member because they do not have a right to reside under the 2016 Regulations, or because they have misused their rights to reside by seeking to rely on a marriage of convenience (see 2016 Regulations, regulations 23(6)(c) and 26(3)), and there is a power to detain pending removal (see regulation 32), but that is not the power under which the Defendant was acting in the Claimant's case. Rather, the Defendant detained the Claimant pending removal, under s10 of the 1999 Act, on the basis that he was an overstayer (indeed, it may well be that the Defendant could not have used her powers under regulations 23 and 32 of the 2016 Regulations, because these powers apply to EEA nationals and their family members, and, at the time, the Claimant was not considered to be a family member of an EEA national, because a party to a marriage of convenience does not come within the meaning of 'family member').
51. It follows that, even if there was an error in relation to the residence card decision, this did not directly affect the decisions to detain and remove, because these decisions were not based on the residence card decision. The question therefore becomes whether the power to remove an overstayer, and to detain pending removal, is suspended by the fact that he has an appeal in relation to the allegedly defective decision in relation to the residence card. This is the very question that was definitively answered by Bilal Ahmed: the answer is 'no'.
52. Is the position different if the decision in relation to the residence card is not merely 'wrong', in the sense that the First-Tier Tribunal subsequently disagrees with it, but 'wrong' in the sense that it was tainted by a public law error? In my view, the answer is 'no'. The fact remains that the challenge to a residence card decision, whether it is on public law grounds or not, is by way of an appeal to the First-Tier Tribunal. Even if there was a fundamental public law error, the remedy would still be by way of an appeal to the First-Tier Tribunal. It would not be possible to succeed with a claim by way of judicial review to the Upper Tribunal or the Administrative Court, because there is an alternative remedy: the appeal to the First-Tier Tribunal. It is true that the Court of Appeal in Bilal Ahmed did not specifically state that its reasoning applies even if the Defendant has made a public law error in relation to the residence card decision but, as I read the judgment, its reasoning applies regardless of the nature of the grounds for challenge to the original residence card decision.
53. In my judgment, paragraphs 26-27 of Laws LJ's judgment in Bilal Ahmed lend support to this reasoning. As with the present case, Mr Ahmed's removal directions were issued because he was an overstayer, not because he had failed to obtain a residence card. It is true that, if he had been granted a residence card, that would have prevented his removal, but that did not happen. Where an applicant is refused a residence card, any prior reasons for removal still apply, and the fact that an appeal has been lodged does not suspend the power to remove.
54. A similar, though not identical, argument to that which has been advanced on behalf of the Claimant in the present case was recently considered by Michael Fordham QC in R (on the application of Shote) v Secretary of State for the Home Department [2018] EWHC 87 (Admin). In Shote, the Claimant submitted that a person who can demonstrate, objectively, that they meet the tests of eligibility under the 2016 EEA Regulations so as to have a right to a residence permit has thereby an entitlement to residence and does not require leave to enter or remain, and that where the Defendant has wrongly failed to recognise that eligibility, the person asserting it, and able objectively to demonstrate it, is irremoveable under section 10(1) of the 1999 Act. At paragraph 22 of his judgment, Michael Fordham QC said:

"22. I cannot accept the claimant's argument. A person whose claimed eligibility under the 2016 EEA Regulations has been rejected, and who wishes to contest that conclusion through a legal remedy, has statutory appeal rights. In the present circumstances, they are non-suspensive…… Indeed, it would subvert that statutorily non-suspensive character if removal could prospectively be challenged on judicial review by determining the merits of that eligibility."

55. In my judgment, Michael Fordham QC's analysis is correct. If a person who was appealing against a refusal of a residence card was able to suspend removal for other reasons by challenging that refusal on public law grounds by way of judicial review, this would subvert the legislator's decision that a challenge to the refusal decision should be made by way of appeal to the First-Tier Tribunal and should be non-suspensive.
56. The only difference between the argument in Shote and the argument in the present case is that the claimant in Shote was arguing that, in judicial review proceedings, the Court should decide for itself whether the marriage was a marriage of convenience, as a matter of precedent fact. In the present case, in contrast, the Claimant is submitting that the Court should decide for itself whether the residence card decision was defective on public law grounds, not whether it was factually incorrect. However, I think that this difference is immaterial: the point is that the remedy for an incorrect decision in relation to the residence card is an appeal to the First-Tier Tribunal, and such an appeal does not have a suspensive effect in relation to detention or removal.
57. In light of the above, I consider that, even if the Claimant is right that the residence card decision was tainted by a public law error, and even it was a serious public law error, this does not and cannot render unlawful the decision to detain him and to issue removal directions in July 2017. The Defendant had power to issue such directions in July 2017 as a result of the fact that the Claimant was an overstayer whose Article 8 claim has failed and had been certified as clearly unfounded. There had been a decision to decline to grant the Claimant a residence card under the 2016 Regulations, and this decision stood and was legally-binding, unless and until it was overturned on appeal by the First-Tier Tribunal. Although, in the Claimant's case, the residence card decision was overturned by the First-Tier Tribunal, this did not happen until February 2018. Any public law defects in relation to the residence card decision were capable of challenge at the appeal but, in the meantime, they did not affect or invalidate the decision to detain and to remove the Claimant. It would run counter to the reasoning of the Court of Appeal in Bilal Ahmed for the Administrative Court to hold that detention in these circumstances was unlawful because, at the time of detention, the Claimant was appealing against the residence card decision, whether or not the appeal was on the basis that the decision was irrational or was otherwise unlawful on public law grounds.
58. As I have indicated, the Defendant did not contend that the Bilal Ahmed judgment was a complete answer to the Claimant's claim. For that reason, I will not decide this case solely on the view that I have formed of the Bilal Ahmed point, but I will go on to deal with the arguments as they were presented to me by counsel.

Was there an error of public law in the Defendant's decision on 6 June 2016 in relation to the residence card?

59. Mr Davison has, properly, accepted that the mere fact that the First-Tier Tribunal came to a different conclusion on the residence card issue does not mean that this Court has to find that there was a public law error in the Defendant's decision-making as regards the residence card. This is because the First-Tier Tribunal's jurisdiction is not limited to deciding if the original decision was vitiated by an error of law. Rather, the role of the First-Tier Tribunal is to investigate the facts afresh, including taking account of additional evidence which was not before the original decision-maker, and to form its own view on the facts from the evidence presented: see Sadovska and another v Secretary of State for the Home Department [2017] UKSC 54; [2017] 1 WLR 2926, at paragraph 28. Indeed, very sensibly, the grounds of appeal, drafted by the Claimant's solicitors on his behalf, are not couched in the language of a public law challenge. There is no reference to 'irrationality' or to 'breach of natural justice'. The focus was upon the contention that the decision-maker had not given sufficient weight to evidence which suggested that the marriage was not a marriage of convenience, although reference was also made to alleged unfair treatment and an alleged failure to take account of all the relevant evidence.
60. As stated at paragraph 9, above, the public law grounds put forward by Mr Davison to challenge the residence card decision can be considered in three categories, which I will look at in turn.

The decision was irrational

61. I cannot accept the submission that the decision by the decision-maker to the effect that the marriage was a marriage of convenience was irrational. It is trite law that the hurdle of proving that a decision was irrational is a high one. There was material before the decision-maker which was capable of supporting the conclusion that the marriage was a marriage of convenience. The decision-maker was entitled reasonably to take the view that the timing was suspect. The sponsor, Ms Podeanu, had entered into an Islamic marriage with the Claimant within about six weeks of arriving in the UK, and so within no more than six weeks, at the very most, after meeting him. The decision-maker was entitled to take the view that some of the answers given at the marriage interview on 19 October 2017 were inconsistent, and so suggested that the relationship between the Claimant and Ms Podeanu was not as close as they claimed. I have summarised the allegedly inconsistent answers at paragraph 30, above. There were eight apparent inconsistencies or surprising gaps in their knowledge. In my judgment, the decision-maker was entitled to take the view that some of these were very surprising, such as the inconsistency as regards what they had eaten the night before, where they had eaten, and whether the Claimant possessed a moped. It was surprising that they gave very different descriptions of the proposal of marriage, and it was surprising that Ms Podeanu was not able to give the names of the Claimant's uncle's children, with whom the Claimant said she often played. Ms Davison points out that they gave correct answers to many other questions, but, nonetheless, in my judgment it was not irrational for the decision-maker to form the view that the marriage was a marriage of convenience on the basis of these answers. Mr Davison also points out that the interview took place before the civil marriage, but it took place about eleven months after the Claimant and Ms Podeanu had gone through an Islamic marriage. The third reason why the decision-maker thought that the marriage was a marriage of convenience was because of the lack of emotion that was shown by the Claimant and Ms Podeanu when, at the end of the interviews, they were told that the decision-maker had formed the view that their marriage was a marriage of convenience. In my judgment, this was a matter that the decision-maker was entitled to take into account. The Claimant had said how devoted he was to Ms Podeanu and how they never spent any time apart, and yet he did not react when told of a decision which might have led to them being separated for a considerable period. Whilst I recognise that people react to bad news in different ways, and that the Claimant and Ms Podeanu might have felt inhibited by the circumstances they were in, nevertheless, I think that the decision-maker was entitled to take this reaction, or non-reaction, into account as some supporting evidence.
62. Mr Davison has emphasised that there was a wealth of other evidence which supported the conclusion that the marriage was genuine. This included photographs of the wedding, correspondence from the landlord, and photographs from the holiday in Scotland. I have not seen all of this evidence but I am fully prepared to accept that there was evidence in support of the genuineness of the marriage. Nonetheless, in my view, the decision that was reached by the decision-maker in relation to the genuineness of the marriage was not irrational.
63. I am aware that the First-Tier Tribunal Judge, Judge Miles, expressed the view that the overwhelming preponderance of the evidence as a whole supports the Claimant's contention that his marriage is genuine and subsisting, and that even on the interviews themselves there was a far greater degree of consistency rather than inconsistency between the Claimant and Ms Podeanu. However, this does not go so far as to say that the conclusion reached by the decision-maker was irrational, and this was not the issue that was before Judge Miles. Moreover, Judge Miles was, quite correctly, taking account of all of the evidence, including additional evidence that had not been provided to the decision-maker.

The decision-maker failed to take account of all relevant considerations and/or to refer to all relevant considerations in the decision letter

64. Again, I do not accept the Claimant's argument that the decision in respect of the residence card was tainted by public law error in this regard. This is essentially a Wednesbury challenge on the basis that the decision-maker looked only at the inconsistencies and gaps in certain answers and did not look at the whole picture, including the many correct answers and the supporting documentation. In my judgment, this is not a valid criticism of the decision. It was inevitable, and sensible, that the decision letter would refer to the unsatisfactory answers, not to the answers that did not raise suspicions, and there is no basis for inferring that the decision-maker failed to take account of the other answers or of the supporting documents that were submitted. The note on the system that was filed by the decision-maker on 6 June 2017 (and is contained in the Integrity Search Detailed Report) refers to some of the supporting documentation that had been filed, and so it is clear that the decision-maker reviewed them.
65. The Claimant also makes the point that the decision-maker did not see a copy of the full transcript of the interview before the decision was taken, but in my judgment this does not invalidate the decision on public law grounds. The Claimant could have asked for a transcript of the interview when he made his application for a residence card on 19 December 2016 (which was after the interview). He did not do so. The first time a transcript was requested was when his solicitors filed the notice of appeal. It is clear that the decision-maker saw a note of the interview that was prepared by the interviewer, and that the decision-maker was aware of the answers that had given rise to concern – they are mentioned in the decision letter. There is no suggestion that the description of the relevant answers that was relied upon by the decision-maker was inaccurate. There is no principle of public law that the decision-maker in a residence card case, who will usually not be the person who conducted the interviews, has to review a full transcript of the interviews before s/he can make a decision. The decision-maker is entitled to rely upon the summary of the interviews provided by the interviewer, as happened in this case (see Papajorgji, below).
66. As for the submission that the Claimant was not given adequate reasons for the decision, I do not accept that this was the case. The decision letter gave a detailed explanation of the reasons why the decision-maker reached the conclusion that the marriage was a marriage of convenience, including setting out each of the answers which was inconsistent or contained surprising gaps in knowledge and explaining, in each case, why the answer was suspicious. The letter also referred to the other two matters that contributed to the decision-maker's conclusion that the marriage was not genuine, namely the speed with which the Claimant and Ms Podeanu married after her arrival in the UK and their unemotional response when they were told that the decision-maker had concluded that the marriage was a marriage of convenience.

The decision to refuse a residence card was tainted by procedural unfairness

67. The Claimant contends that the decision to refuse a residence card was unlawful on public law grounds because of procedural unfairness, namely the failure, in advance of the rejection, to inform the Claimant and Ms Podeanu of the Defendant's concerns about some of the answers that they gave, and to give them an opportunity to give an explanation.
68. Unencumbered by authority, my view would be that this ground of challenge was misconceived. The Claimant and Ms Podeanu were informed in advance of the marriage interview on 19 October 2016 that the Defendant was concerned that their marriage might be a marriage of convenience, and so they were well aware when they were asked questions in interview what the purpose of the questions were, and, in particular, that the interviewer was seeking to establish whether their relationship was a genuine one. At the end of the interviews, and on the same day, they were informed that the conclusion that had been reached in light of the interviews was that their relationship was a marriage of convenience. This happened before the formal application for a residence card was made (on 19 December 2016) and so the Claimant and Ms Podeanu had an opportunity to address the concerns and provide further evidence and make further representations, in advance of the decision, to show that the marriage was genuine. It is true that they may not have been informed which of the answers had given rise for suspicion (I do not know what if anything they were told at the end of the interviews but I will assume, in their favour, that they were told nothing), but that is beside the point. Anything they said later could not rewrite history and change the answers that they had given on 19 October 2016. Rather, their focus had to be to provide additional evidence in support of the genuineness of their marriage.
69. Furthermore, the Claimant could have asked for a transcript of the interviews. There is a place on the form that he signed at the end of the interview for him to request that, but he did not do so. Having failed to do so, I do not think that he can fairly criticise the Defendant for failing to provide him with a transcript which would have enabled him to work out which answers had given rise to suspicion. It is, no doubt, expensive to produce a transcript, and I do not think that the principles of public law require this to be done on every occasion.
70. Still further, even if, as happened, the Defendant decided that the Claimant was not entitled to a residence card, this was not the end of the road. He had a right of appeal, and this right was not limited to establishing that the original decision-maker had erred in law. He had the right to have another go at persuading the First-Tier Tribunal and had the opportunity to make comments and give explanations about the answers that had concerned the decision-maker. He did so and he was successful in his appeal.
71. In light of the above, and subject to the case-law relied upon by Mr Davison on behalf of the Claimant, I do not think that the approach that was taken by the decision-maker resulted in any procedural unfairness. I move on, therefore, to consider the three authorities relied upon by Mr Davison.
72. The first authority is Papajorgji (Greece) [2012] UKUT 00038 (IAC). In this case, an Albanian national who was married to a Greek national applied for entry clearance to accompany her husband on a visit to the UK. Her application was refused on the basis that she had failed to provide sufficient evidence that her marriage was not a marriage of convenience. The Upper Tribunal held that the Entry Clearance Officer had erred in law in his approach to this case. The main issue for which this decision is authority concerns the burden of proof. The Upper Tribunal held that the Home Office has an evidential burden in the first place to demonstrate that there were reasonable grounds for suspicion that the marriage was a marriage of convenience, and the evidential burden then shifted to the applicant to show, in light of the relevant information, that the marriage was not a marriage of convenience (see judgment, paragraph 20). Mr Davison relies in particular on paragraph 27 of the judgment, in which the Upper Tribunal said that, 'Where there is such suspicion, the matter requires further investigation and the claimant should be invited to respond to the basis of suspicion by producing evidential material to support it.'
73. In my judgment, Papajorgji does not assist the Claimant. In keeping with the guidance in Papajorgji, the Defendant in the present case made clear that she had reasonable grounds for suspecting that the Claimant's marriage was not genuine and called him and Ms Podeanu in for a marriage interview. The reasonable ground for suspicion arose because the marriage had taken place only a few weeks after Ms Podeanu had first arrived in the UK. The Claimant was given the opportunity to respond by giving answers in interview and by providing evidential material to show that the marriage was genuine.
74. The second case relied on by Mr Davison is Miah (interviewer's comments: disclosure: fairness) [2014] UKUT 00515 (IAC). Mr Davison submits that this decision indicates that it is essential that the concerns arising from the interview are put to the applicant, so that he or she can address them, before the decision is taken. In my view, this is not what Miah decided. In Miah, a decision under the 2006 EEA Regulations that a marriage was a marriage of convenience was challenged on the basis that the interviewer provided the decision-maker with a note of the interviewer's assessment of the genuineness of the applicant's marriage. This note was not provided to the applicant in advance of the decision being made and so the applicant was not able to comment on it. The Upper Tribunal (McCloskey J) held that this did not amount to procedural unfairness and that 'in the generality of cases, this practice will not contaminate the fairness of the decision making process' (judgment, paragraph 19). McCloskey J held that fairness requires that interviewer's comments are disclosed to the applicant at the appeal stage, however.
75. Applying this guidance to the present case, I think it follows from what McCloskey J said that it was not necessary to notify the Claimant of the exact nature of the concerns expressed by the interviewer in the written comments to the decision-maker, before the decision was taken. It was, however, necessary to inform the Claimant of the nature of the concerns in advance of the appeal and this was done; indeed it was done in the decision letter. It follows that Miah does not lend support to the Claimant's contention that there was procedural unfairness in the present case.
76. The third authority relied upon by the Claimant in support of his procedural unfairness challenge is The Queen (on the application of Sapkota) v Secretary of State for the Home Department [2016] EWHC 3710 (Admin) (Richard Clayton QC, sitting as a Deputy High Court Judge). Sapkota was a claim of unlawful detention. Mr Sapkota had leave to remain in the UK as a Tier 4 (General Student) migrant, until his leave to remain was curtailed and he was detained. The reason for his detention was the Secretary of State's belief that he had entered into a marriage of convenience to defraud the immigration authority. Unlike the present case, therefore, the statutory power to detain and remove was based on the fact of the marriage of convenience. There was no separate, free-standing, reason for detention or removal. The reason for the Secretary of State's belief that Mr Sapkota's forthcoming marriage to a Portuguese national would be a marriage of convenience was that an email came to light which purported to come from Mr Sapokta and which stated that he had married a Nepalese national some three years previously. Mr Sapokta was not forewarned that the Secretary of State had the email in her possession and it was 'sprung on' him at the marriage interview. A decision that the marriage was a marriage of convenience was then taken almost immediately, without Mr Sapotka being given the opportunity to put his side of the story. Subsequently, evidence was produced from the Nepalese woman who corroborated Mr Sapotka's evidence that they had never married.
77. The judge decided that these circumstances gave rise to procedural unfairness (see judgment, para 59). However, he made clear that he was not setting out any general principle and was deciding the issue of fairness 'in the circumstances of this particular case'. In my judgment, the facts of Sapotka are distinguishable from the facts of the present case. In Sapotka, the Secretary of State relied upon a specific factual allegation (that he was already married) which the applicant was not given any reasonable opportunity to address. There is no such specific factual allegation in the present case. Rather, in the present case, the decision-maker's conclusion that the Claimant's marriage was a marriage of convenience was based on a number of impressionistic factors, arising from the speed in which the relationship developed into marriage, the inconsistent answers given at interview, and the lack of emotion shown when the Claimant and Ms Podeanu were told the outcome of the interview.
78. For these reasons, in my judgment the three authorities relied upon by Mr Davison do not support the conclusion that there was procedural unfairness in the present case.

Conclusion on the public law challenge to the residence card decision

79. For the above reasons, in my judgment the decision by the Defendant to refuse the Claimant a residence card was not tainted by any public law errors, notwithstanding that it was subsequently reversed by the First-Tier Tribunal.

If there was an error of public law in relation to the residence card decision, did this error render the detention itself unlawful?

80. In light of my conclusion on the previous issues, this question does not arise but, if it did arise, the answer would be 'no'. As I have just explained, I do not think that the Defendant's decision in relation to the residence card was unlawful on public law grounds. In any event, I have stated my view, based on Bilal Ahmed, that even if the decision in relation to the residence card had been unlawful, this has no relevance to the decision to detain and remove the Claimant, because that decision was not taken in reliance upon the residence card decision. Any public law error in relation to the residence card did not infect the decision to detain.
81. However, as it was the subject of argument, I will deal, albeit briefly, with a point that arises only if I am wrong and (a) the residence card decision was an error as a matter of public law and (b) this error was relevant to the decision to detain the Claimant. If that were the position, Mr Davison accepts that it would not automatically follow that the detention, too, was unlawful. He accepts that if a person is detained pending removal, and it subsequently turns out that the decision to remove was wrong in law, it is not in every case that the detention will be unlawful.
82. The leading authority is Secretary of State for the Home Department v Draga [2012] EWCA Civ 842. In that case, Mr Draga was detained pending removal because his refugee status was revoked. In deciding to revoke Mr Draga's refugee status, the Secretary of State relied upon a statutory instrument that was later held to be ultra vires. Mr Draga contended that as the reason for his proposed removal was unlawful on public law grounds, this meant that his detention was unlawful. The Court of Appeal held that the mere fact that the Secretary of State had relied upon an ultra vires statutory instrument as the authority for removing a person did not mean that detention pending removal was unlawful.
83. At paragraph 60 of the judgment in Draga, Sullivan LJ said:

"60. In the great majority of cases, the mere fact that an appeal has been allowed under section 82(1) [of the Nationality, Immigration and Asylum Act 2002: appeals against deportation orders] will not mean that the decision to make the deportation order was unlawful in a way which was relevant to the decision to detain. An appeal may be allowed because, eg the Tribunal takes a different view as to the proportionality of an interference with an appellant's rights under article 8 of the ECHR, or because, with the benefit of further evidence, the Tribunal reaches a different conclusion as to the risk of persecution on removal, the application of a particular immigration rule, or the manner in which a discretion should have been exercised under the rules. There will, however, be some cases where appeals are allowed by the Tribunal on the basis that there was a breach of a rule of public law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the detention unlawful. Examples of such breaches are mentioned in Ullah: where the Tribunal concludes that the appellant was not a person liable to deportation, or the decision to make a deportation order was made in bad faith (see paragraphs 44 and 45 above). It must, however, be acknowledged that it is difficult to identify any principled basis for distinguishing between those public law errors which will render the decision to detain unlawful and those which will not. Errors of law are many and various and, as Lord Dyson said in paragraph 66 of Lumba [R(Lumba v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245]:

"The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires … "

61. The statutory scheme does not provide any mechanism for challenging the lawfulness of the kind of decision that was in issue in Lumba: an (unlawful) decision to detain where there had been a (lawful) decision to make a deportation order/the making of a (lawful) deportation order. The lawfulness of such a decision can be challenged only by way of judicial review. In sharp contrast, Parliament has established a comprehensive statutory scheme for determining the lawfulness of a decision by the Secretary of State to make a deportation order. The Secretary of State may not make the order until an appeal against the decision to make it has been "finally determined" (see paragraph 33 above). In order to give effect to the statutory scheme there is a very strong case for treating the Tribunal's decision on an appeal under section 82(1) as determinative (subject to any appeal to the Court of Appeal) of the issues as between the parties to the appeal in order to ensure finality in litigation and legal certainty.

62. The law, particularly in this field, is constantly evolving, as shown by the number of reported cases. The fact that a decision by the Court of Appeal or the Supreme Court in a later case, perhaps many years later, may, with the benefit of hindsight, make it clear that a Tribunal's decision in an earlier case to allow or dismiss an appeal against a decision to make a deportation order was made on an erroneous legal basis is not a ground for re-opening the earlier decision by the Tribunal. It would frustrate the operation of the statutory scheme if the Secretary of State was not able to rely upon the Tribunal's decision, dismissing an appeal, once time for applying for permission to appeal against the decision had expired, as a lawful basis for making a deportation order.

63. In the present case, these judicial review proceedings were commenced in June 2008 and the law was not clarified until the judgment in EN (Serbia) was handed down in June 2009, some 21 months after the Tribunal's decision. If a Tribunal's decision is not to be treated as finally determining, as between the parties to an appeal under section 82(1) , the lawfulness of a decision to make a deportation order, there can be no certainty as to whether there is lawful authority for detention under either paragraph 2(2) or 2(3) of Schedule 3 , because at any stage it might be decided in a subsequent case that the legal basis for making the deportation order – the dismissal of the appeal against the decision to make the order – had been flawed.

64. If a person subject to a deportation order has not been removed from the UK, a subsequent decision by the Court of Appeal or the Supreme Court in another case which makes it clear that the Tribunal's decision to dismiss his appeal against the decision to make the order was made on a flawed legal basis, would be a proper ground for an application to the Secretary of State to revoke the order, and for appealing against a decision to refuse to revoke the order, but it would not invalidate either the Tribunal's decision finally determining the appeal, or the deportation order made in reliance upon that final determination.

….

72. While it may be difficult to distinguish between those public law errors which will render a decision to detain unlawful, and those which will not (see paragraph 60 above) I have no doubt that reliance upon a "device" to maintain a deportation order without which continued detention could not lawfully be authorised is a public law error in the decision making process which renders the continued detention unlawful."

84. It is clear from Draga that it is a question of degree, based on the facts and circumstances of each case, as to whether a breach of a rule of public law in respect of a decision to remove or deport will render the detention pending removal or deportation unlawful.
85. If this issue had arisen in the present case, on the basis of my other findings, I would have found that the errors of public law alleged by the Claimant to have taken place in respect of the residence card decision did not infect and render unlawful the decision to detain. This was not a case of mistaken identity. It was not a case in which the Secretary of State had acted in bad faith in relation to the residence card decision. The Court of Appeal in Draga referred to the guidance given by the Court of Appeal in the earlier case of Ullah v The Home Office and another [1995] Imm AR 166. In that case, the Court said:

"A decision made by the Secretary of State in good faith against a person liable to be deported is a decision within the contemplation of the paragraph, even if it later appears that it is a decision which he should not have made or should not have made without further consideration. If, for whatever reason, such a decision is withdrawn or set aside, the person in question must be immediately released…… Until the decision is set aside, however, it is sufficient to support the notice and authorise the detention."

86. In my judgment, the same would apply in the present case, if there had been an error of public law of the type claimed by the Claimant in the residence card decision, and if that decision was relevant to the decision to remove. In those circumstances, the fact that the decision to remove later turned out to be wrong in law would not retrospectively invalidate the decision to detain. Mr Davison pointed out that the unlawful detention claim succeeded in Sapkota, where the judicial review challenge had been on the basis of procedural unfairness, but in that case the procedural unfairness was much more fundamental that the unfairness that was alleged in the present case, and the Draga case does not appear to have been cited to the judge, or to Dinah Rose QC, sitting as a Deputy High Court Judge, who dealt with the remedies hearing ([2017] EWHC 2857 (Admin)).
87. I stress again, however, that, in any event, the Draga issue does not arise in the present case because I have found that there was no error of public law in the Defendant's residence card decision and because I have found that the residence card decision played no part in the decision to detain and remove the Claimant.

Did the Defendant act in breach of the Claimant's public law rights by deciding to detain and remove him without first giving him an opportunity to answer the Defendant's concerns that his marriage was a marriage of convenience?

88. I have already dealt with this question when I dealt with the Bilal Ahmed question, above. The decision to detain and remove the Claimant was not based on the residence card decision, but on the fact that the Claimant was an overstayer whose Article 8 claim had been rejected and certified as clearly unfounded. It follows that the Defendant was not under any obligation to investigate further the issue of the Claimant's alleged marriage of convenience, which was only relevant to the residence card issue, before taking the decision to detain him.
89. For completeness, I should add that the Grounds accompanying the Claim Form also contended that the Claimant's detention was unlawful because it was in breach of the 2016 Regulations and Directive 2004/38/EC. This argument was not pursued orally but in any event, it is misconceived, because, as I have explained, the decisions to detain and remove the Claimant were not made pursuant to any actual or purported powers of the Defendant under the 2016 Regulations, which implements the Directive into UK law.

Conclusion

90. For the above reasons, this application for judicial review is dismissed.