Islam, R (On the Application Of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, November 02, 2018, [2018] EWHC 2939 (Admin)

Resolution Date:November 02, 2018
Issuing Organization:Administrative Court
Actores:Islam, R (On the Application Of) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWHC 2939 (Admin)

Case No: CO/1378/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/11/2018

Before :

Andrew Thomas QC, sitting as a Deputy High Court Judge

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Between :

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Zakir Hussain (instructed by Hubers Law) for the Claimant

Zane Malik (instructed by Government Legal Department) for the Defendant

Hearing dates: 25th October 2018

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8

Andrew Thomas QC :

  1. 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.

  2. On 14th 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 4th 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 25th April 2018.

  3. This claim for judicial review was issued on 5th 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 25th April 2018. The Claimant was released from detention on 20th April 2018.

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

    i) a challenge to the Defendant's decision to issue removal directions for 6th April 2018; and

    ii) a challenge to the Defendant's decision to detain the Claimant from 14th March 2018 until 20th April 2018.

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

    i) Was it lawful for the Defendant to seek to remove the Claimant from the UK when he had an appeal outstanding before the FTT relating to the refusal to grant him a residence card? The Claimant's case is that the decision was contrary to the legislation because the Defendant had already acknowledged that he was a family member of an EEA national. He submits that in those circumstances an appeal of this nature has suspensive effect. He also argues that the decision was irrational.

    ii) Would the removal of the Claimant from the UK have unlawfully interfered with his right of appeal against the residence card decision? The Claimant relies on the decision of the Supreme Court in R (Kiarie) v SSHD; R (Byndloss) v SSHD (2017) UKSC 42, and the decision of the Court of Appeal in Ahsan & Ors v SSHD (2017) EWCA Civ 2009. Although the present case involves a different statutory scheme, the Claimant argues that the same analysis should be made of the restrictions on his ability to prepare and present his appeal effectively.

    iii) Was his detention for an unlawful purpose? The Claimant's case is that he was detained for the purpose of the unlawful removal indicated above.

    iv) Was his detention in breach of the Hardial Singh principles in any event? The Claimant argues that his detention was unjustified as there were no compliance issues in his case. Alternatively, his detention became unlawful when it became apparent that he was not going to be removed within a reasonable timescale.

    Background

  6. 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.

  7. 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 21st March 2015.

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

  9. On 24th 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.

  10. The application was rejected by the Defendant by a decision dated 23rd 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.

  11. 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.

  12. The letter of 23rd 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.''

  13. The Claimant appealed against the decision. No enforcement action was taken at that stage. On 2nd 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.

  14. Meanwhile, on 11th 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

    ...''

  15. On 30th 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.

  16. On 9th November 2017, the Court of Appeal ruled in Khan v SSHD (2017) EWCA...

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