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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ahmad, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 1082 (Admin) (09 May 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/1082.html Cite as: [2018] 4 WLR 85, [2018] EWHC 1082 (Admin), [2018] WLR(D) 284 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
____________________
THE QUEEN (on the application of ZAHIR AHMAD) |
Claimant |
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- and – |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mr Andrew Byass (instructed by Government Legal Department) for the Defendant
Hearing date: 24 April 2018
____________________
Crown Copyright ©
John Cavanagh QC:
Introduction
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.
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.
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?
The relevant facts
"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."
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.
"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."
Discussion
The significance of the judgment in Bilal Ahmed
"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)
"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."
"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."
Was there an error of public law in the Defendant's decision on 6 June 2016 in relation to the residence card?
The decision was irrational
The decision-maker failed to take account of all relevant considerations and/or to refer to all relevant considerations in the decision letter
The decision to refuse a residence card was tainted by procedural unfairness
Conclusion on the public law challenge to the residence card decision
If there was an error of public law in relation to the residence card decision, did this error render the detention itself unlawful?
"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 decisionultra 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."
"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."
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?
Conclusion