Removal and appealing against the refusal of an EEA residence card

The latest report, in a long series of tribunal and court cases, has held that if an applicant decides to appeal against the refusal of an EEA residence card, the appeal application does not suspend the applicant’s removal from the UK.

The most recent decision is the case of Mr Islam, reported as the high court case of R (Shafikul Islam) v Secretary of State for the Home Department. To top London immigration solicitors, the high court decision, and indeed the earlier tribunal and court decisions, seem rather odd. That is because normally if an appellant appeals against a court decision, then whilst the appeal is being processed a court will not implement the order that is being appealed against. That is not the case with appeals against the refusal of an EEA residence card.

So what lead to the high court decision in R (Shafikul Islam) v Secretary of State for the Home Department, to confirm the previous tribunal and court decisions that an appeal against the refusal of an EEA residence card does not suspend the removal of the appellant during the appeal process?

The facts of the case were that Mr Islam had entered the UK on a Tier 4 visa and had overstayed on his visa. Accordingly, Mr Islam applied for a visa to remain in the UK on the basis that he was an extended family member of his uncle. The application was refused. After legal argument about whether or not an applicant could appeal against the decision to refuse entry to the extended family member of an EU citizen, Mr Islam appealed against the decision to refuse the EEA residence card.

However, that was not the end to Mr Islam’s legal woes as he was served with a removals direction. Mr Islam sought a judicial review of the removals direction. Mr Islam argued that his appeal against the decision to refuse entry to the UK should suspend the removal's direction. Mr Islam failed on his application for judicial review on the basis that he could pursue his appeal against the refusal of his EEA residence card whether or not he was physically present in the UK during the appeal process.

In Mr Islam’s case the high court decision and the implementation of the removals direction will mean a return to Bangladesh. What was the rationale behind the decision in Mr Islam’s case to progress the removals direction notwithstanding the appeal against the refusal of the EEA residence card?

In essence, the tribunals and courts dealing with Mr Islam’s application and appeal and similar earlier cases have decided that:

• A person who applies for an EEA residence card and is refused a EEA residence card has no right to reside in the UK under EU law;

• As a result, the person can be removed from the UK as they do not have leave to remain. This is by virtue of section 10 of the Immigration and Asylum Act 1999;

• The removals direction is not classed as an EEA decision to remove. This is because the decision to remove was not made under the EEA rules and regulations;

• The appeal against the decision to refuse an EEA residence card is not a Human Rights claim;

For Mr Islam, the implementation of the removals direction may result in removal to Bangladesh but with no right to return to the UK for the hearing of his appeal against the decision to refuse his EEA residence card. Why is that? To top London immigration solicitors it seems unfair that an appellant, who is in the process of an appeal, can be removed with no right of return to be present at his court case. The answer is that the Immigration Rules provided for people who are progressing an appeal against deportation to be able to enter or remain in the UK temporarily whilst the appeal is determined, but not appellants who are appealing against the refusal to grant an EEA residence card. The best London immigration solicitors say that this is down to the fact that EEA rules and regulations do not have a rule that provides for an appellant to return to the UK to attend their appeal case hearing.

From the point of view of the top London Immigration solicitor, or the average man in the London street, the rules and regulations seem odd, as they give the applicant a right to attend a deportation hearing but not the right to attend an appeal hearing. The outcome of a deportation or appeal hearing against the refusal of an EEA residence card is, however, the same as both hearings have the same effect as a deportation hearing, namely determining if an applicant can stay in the UK or not.

If nothing else, an examination of Mr Islam’s Immigration case shows just how complicated Immigration cases are, and with even the employment law solicitors concluding that there should be more consistency in the rules and regulations over who can attend court and tribunal hearings after a removals direction has been made. Mr Islam’s case also highlights the importance of getting top London immigration solicitors advice given the complexity of the rules and regulations surrounding his original EEA residence card application and appeal process.

OTS Solicitors are specialist in Immigration law matters. The firm is recommended for Immigration law in the Legal 500. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law. For more information on applications for EEA residence cards, Judicial Reviews and the appeal process or any alternative aspect of personal or business immigration law, please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors who will be happy to help.