Case of R ( on the application of Bilal Ahmed) v SSHD (EEA/s10 appeal rights: effect) IJR (2015) UKUT 436 (IAC)
Headnote:
(1) The fact that P ( who is not an EEA national) has a right of appeal under the Immigration (EEA) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92 (4)(b) of the Nationality, Immigration and Asylum Act 2002 does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First Tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the UK. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
What does this mean ? It means that where you are a ‘third country’ national ie not an EEA national, married to an EEA national, you have applied for a Residence card on the basis of that marriage, and the Home Office (‘UKVI’) thinks that you have entered into a ‘sham marriage’ you do not have a right of appeal from inside the UK where the Home Office decides to remove you from the UK, even though you have a right of appeal against the decision to refuse you are Residence card under the 2006 EEA REgulations.
The First Tier Tribunal in the UK decides as a matter of fact whether you are in fact a family member of an EEA national when an appeal is brought before them, regardless of whether tyou are inside or outside the UK at that point.
If you decide to challenge your removal from the UK by way of Judicial Review, a remedy of last resort when you have no other route of legal challenge, this will not succeed where the Home Office ‘reasonably’ suspects that you are part of a marriage of convenience.
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