Islam, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 2939 (Admin)

It had not been accepted that the Claimant was the nephew of an EEA national and therefore acknowledged that he was a “family member” for the purposes of Section 92(4)(b) of the 2002 Act. The Claimant is not a “family member” unless and until he satisfied all of the conditions in Regs 7(3) and 8 of the EEA Regulations. The Claimant did not satisfy the final clause of Section 92(4)(b) (ie. that his removal is in breach of a right of residence in the UK).
The decision to remove the Claimant from the UK when he still has an outstanding appeal to be heard is not unlawful and did not interfere with his rights to prepare and present his case before the Tribunal, relying upon the decisions of the Supreme Court in Kiarie and Byndloss and the Court of Appeal in Ahsan. The Claimant’s outstanding appeal to the FTT is an appeal against the refusal to grant him a residence card. It is not a human rights claim. The rationale for the decisions in both Kiarie and Byndloss and Ahsan was that removal would be unlawful by virtue of Section 6 of the Human Rights Act 1998. That arose because the Claimant’s appeal involved a determination of rights under Art 8 ECHR and therefore the procedural safeguards in Art 8(2) and Art 13 were engaged. In the present case, the Claimant’s appeal to the First Tier Tribunal does not raise any Art 8 issue.

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