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||Neutral Citation Number:  EWHC 2123 (Admin)
||Case No: CO/3012/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||6 August 2018
B e f o r e :
KARON MONAGHAN QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
|| R (on the Application of FARHAN ASLAM)
||- and -
||THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Mr Shahadoth Karim (instructed by Vision Solicitors) for the Claimant
Ms Jennifer Gray (instructed by Government Legal Service) for the Defendant
Hearing dates: 22 March 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
KARON MONAGHAN QC:
- By this claim the Claimant challenges the lawfulness of his detention between 19 May 2017 and 17 August 2017, when he was released on bail. The Claimant further challenges the Defendant's decision to issue removal directions on 19 May 2017.
The Factual Background
- The factual background to the Claimant's detention is long and complex and I must set it out in some detail to explain the basis of the Claimant's claim.
- The Claimant is a national of Pakistan. He arrived in the UK on 12 September 2009 on a student visa granting him leave to remain until 21 January 2011. On 18 January 2011, the Claimant's student visa was extended to 31 May 2014.
- The Defendant says that on 29 March 2012 the Claimant was served at his last known address with a notice of curtailment of leave dated 28 March 2012, with leave expiring on 27 May 2012. This followed a revocation of the licence of the college at which the Claimant was said to be studying. The Claimant says that he did not receive that notice and that it was not, therefore, effective and any subsequent proceedings in consequence of it were a nullity. I return to this below.
- The Claimant says that on 21 April 2012 he entered into a marriage by proxy in Accra to a French national, Ms Andrea Soares Goames. This marriage was said to have been registered on 4 May 2012.
- On 19 June 2012, the Claimant applied for an EEA residence card based on his claimed marriage to Ms. Goames. On 28 June 2012, the Claimant notified the Defendant of his change of address. The Claimant was thereafter invited to attend a marriage interview on 13 November 2012 and on this day the Claimant telephoned cancelling his interview on the ground that he had back pain. The Claimant sent the Defendant a copy of a prescription (not a medical letter/report) in support.
- On 17 December 2012, the Claimant's application for an EEA residence card was refused, the Defendant having decided that (i) the marriage certificate relied upon by the Claimant was not valid (ii) particularly in view of the fact that the Claimant failed to attend a marriage interview, there were doubts about the Claimant's claim to be in a genuine, subsisting relationship with Ms Goames (iii) there was insufficient evidence to show that the Claimant was in a durable relationship with Ms Goames akin to marriage and (iv) there was insufficient evidence to show that Mss Goames was exercising Treaty rights.
- The Claimant did not appeal the decision of 17 December 2012 but instead made a fresh application for an EEA residence card on 1 October 2013, purportedly to address the insufficiency of the evidence relied upon in his first application. On 13 February 2014, this application was refused on the basis that the marriage certificate was not valid and there was insufficient evidence of a durable relationship with Ms Goames. On 24 February 2014, the Claimant lodged an appeal against that refusal: that appeal was dismissed on 27 October 2014. At the appeal hearing (before Judge Monson) the Claimant withdrew his appeal in respect of the decision by the Defendant to refuse to recognise the validity of his purported marriage and so the only issue before the Tribunal was whether the Claimant was an extended family member for the purposes of the European Immigration (European Economic Area) Regulations 2006. Nevertheless, the Judge considered the circumstances of the marriage and the marriage certificate because he considered that these matters raised "credibility issues". The Judge concluded that the marriage certificate was a false document because "it conveys the false message that the bride and groom were present in Ghana to sign the marriage register". In his reasons, the Judge noted that Ms Goames had declined to give evidence at the hearing for reasons he plainly considered were not adequate and observed that that took on "an added significance" in light of the fact that the Claimant had failed to attend a marriage interview. The Judge found that there was no up-to-date evidence evidencing their continuing cohabitation at the address given (that is, during what was said by the Claimant to be the currency of their marriage). The Judge concluded that the Claimant had not discharged the burden of showing that at the date of the hearing he was an extended family member of Ms Goames. The Judge was also not satisfied that Ms Goames was exercising Treaty rights whilst in the UK, and nor were there arguably good grounds for the grant of Article 8 relief.
- On 3 December 2014, the Claimant made a further application for an EEA residence card. On 22 December 2014, that application was rejected on the basis that the application was invalid. On 11 January 2015, the Claimant made yet a further application for a residence card and on 12 May 2015 this application was refused on the basis that there was not enough evidence to show that Ms Goames was exercising Treaty rights. On 22 May 2015 the Claimant lodged an appeal against the decision of 12 May 2015. On 13 April 2016, the Claimant withdrew his appeal on the ground that he was getting divorced and, the Claimant says, he believed that this meant he was no longer entitled to a residence card.
- On 15 November 2016, the family court issued a decree absolute dissolving the Claimant's marriage with Ms Goames. The Claimant says that the family court thus proceeded on the basis that the marriage was a valid one and to the extent that Immigration Judge Monson concluded otherwise by the decision of 27 October 2014, that "cannot now stand" since the marriage had thereafter been shown to be valid.
- On 12 January 2017 the Claimant made a new application for permanent residence. This was because, he says, he discovered that notwithstanding his divorce, he retained rights of residence in consequence of what he now claimed was his marriage. In that application the Claimant stated that he had been married to his sponsor, Ms Goames and that he was now her "ex-spouse". In answer to the question which category he was relying upon in support of his application, he ticked the box indicating that he "was previously a family member of a relevant EEA national [named as Ms Goames] ..and have retained …rights of residence because the EEA national ..[and the] marriage.. has ended in divorce". The Claimant gave the date of the marriage as February 2012 and in answer to the question "were you and your sponsor both present at the ceremony", the Claimant answered "yes". This was not so.
- On 15 May 2017, the Claimant was informed by his solicitors that they had received a letter dated 10 May 2017 from the Defendant stating that the Claimant would be interviewed about his application.
- On 19 May 2017, the Claimant attended what has been described as a "credibility" interview. Following the interview the Defendant's decision-maker concluded that the Claimant's marriage was both invalid and a sham, that is, a marriage of convenience. The Claimant was told at this point by one of the Defendant's caseworkers that his application had been refused.
- The Claimant was then detained and in due course served with a removal notice pursuant to section 10 of the Immigration and Asylum Act 1999, the reasons for which were stated to be that his leave to remain as a Tier 4 student had been curtailed so that it had expired 27 May 2012, a matter to which I have already referred. A second decision was made on the same day - that is, 19 May 2017 - refusing the Claimant's application for a residence card. The reasons for detention were given in a separate notice to the Claimant as being that he was "likely to abscond if given temporary admission or release".
- On 20 May and then on 24 May 2017, the Claimant's detention was reviewed and maintained.
- The Claimant says that he first received the Defendant's decision of 19 May 2017 refusing his residence card application on 30 May 2017. This was some 11 days after commencement of his detention. I return to this below.
- In the decision of 19 May, the Defendant gave the reasons for refusing the Claimant's application for a residence card based on retained rights: firstly, that it was not accepted that the marriage was valid and thus the Claimant did not qualify "under retained rights" and secondly, "[d]ue to various discrepancies throughout the interview [on 19 May 2017] the Immigration Officers deemed your relationship to the EEA national to be one of convenience". Thus, the decision-maker decided that even if it were accepted that the marriage was valid (and it was not) the Claimant did not meet the requirements for a residence card because the marriage was entered into for the purposes of securing leave to remain in the UK. The decision letter informed the Claimant of his appeal rights and that if he did not wish to appeal but considered that he had further evidence to prove that he had a right of evidence, he could make a further application. The Claimant filed a notice of appeal against this decision on 30 May 2017.
- On 22 May 2017, the Claimant issued proceedings in the Upper Tribunal (JR 4599/17) challenging, in essence, his detention and the refusal of his application for an EEA residence card, and advancing human rights grounds.
- On 1 June 2017, the Claimant's detention was reviewed and maintained.
- On 8 June 2017, bail was refused.
- On 14 June 2017, the Claimant's detention was reviewed and maintained.
- On 19 June 2017, the Claimant's application for leave to remain under Article 8 was refused and certified as clearly unfounded under section 94(1), Nationality, immigration and Asylum Act 2002 (in response to submissions made in the Claimant's claim in judicial review before the Upper Tribunal), providing him with an out-of-country right of appeal only.
- On 20 June 2017, new solicitors for the Claimant went on the record.
- On 26 June 2017, this claim for judicial review was issued.
- On 30 June 2017, the Defendant filed an Acknowledgement of Service in the Claimant's first claim in judicial review before the Upper Tribunal, seeking expedition.
- On 12 July 2017, the Claimant's appeal against the decision of 19 May 2017 refusing a residence card was dismissed by the First-Tier Tribunal (Judge Khan). The Claimant declined to give evidence at that hearing and did not provide a written witness statement. It was submitted by the Claimant's representative at the hearing that the fact that a decree absolute had been granted on 15 November 2016 in respect of the Claimant's marriage meant that the marriage was a valid one. The Judge noted that that no documentation had been provided in relation to the divorce proceedings in the County Court and accordingly it was not known on what basis the Family Court reached its decision. The Judge further noted that the issue as to validity was not the only basis for the decision of 19 May 2017. The Judge then went on under his conclusions to consider the question whether the Defendant had established that the marriage was one of convenience and whether the Claimant had established that Ms Goames was exercising her Treaty rights at material times. The Judge concluded that the Defendant had failed to discharge the evidential burden of establishing that the marriage was one of convenience. However, he concluded that the Claimant had not shown that Ms Goames was exercising Treaty rights at the time divorce proceedings were commenced and accordingly he had not made out a claim for retained rights of residence under the European Immigration (European Economic Area) Regulations 2006. The Judge therefore dismissed the Claimant's appeal but without making any finding on the question whether the marriage was valid.
- On 14 July 2017, the Claimant's detention was reviewed and maintained.
- On 19 July 2017, the Defendant filed an Acknowledgement of Service and Summary Grounds in this claim.
- On 24 July 2017, the Claimant applied for permission to appeal the decision of the First-Tier Tribunal (Immigration Judge Khan). On 26 July 2017, permission to appeal the decision of the First-Tier Tribunal was granted (by Judge Scott Baker) on the ground that the question whether Ms Goames was exercising Treaty rights was not an issue relied upon by the Defendant in the appeal and arguably the Claimant was prejudiced in it being determined without the opportunity to address it. The Judge in granting permission noted in his reasons that Judge Khan had failed to make any findings on the validity of the marriage and this "arguably would have amounted to a basis of suspicion by the respondent" and failed to make any findings as to whether the decree absolute was "a genuine and reliable document".
- On 10 August 2017, the Claimant's detention was reviewed and maintained.
- On 17 August 2017, the Claimant was released on bail.
- On 5 September 2017, Swift DHCJ refused permission to apply for judicial review in this claim.
- On 8 September 2017, permission to apply for judicial review in the Claimant's first claim (JR 4599/17) was refused by Ockleton VP in the Upper Tribunal. In relation to the Claimant's challenge to the finding that the marriage was invalid/one of convenience, Ockleton VP refused leave on the ground that "the lawfulness of the respondent's decision has to be based on the facts as they were at the date of the decision. There was clearly ample reason to think that the applicant's marriage, if valid at all, was a marriage in name only. The interview shows that he knew so little of about his claimed partner that it is almost inconceivable that they had a real relationship. The decision refusing [the Claimant] a residence card was amply open to the respondent on the basis of the material before her and the contrary is not properly arguable". Ockleton VP also dismissed the Claimant's Article 8 claim. The Claimant did not renew his application for permission.
- On 4 October 2017, Marquand DHCJ at an oral hearing granted permission to apply for judicial review in the claim that now comes before me.
- On 5 October 2017, the Upper Tribunal (Deputy Upper Tribunal Judge O'Ryan) set aside the decision of the First-Tier Tribunal (Judge Khan) dismissing the Claimant's appeal against the decision of 19 May 2017. This was on the ground, firstly, that Judge Khan had made no finding as to the validity of the marriage. In the absence of any authority to support the proposition, the Judge rejected the submissions made by the Claimant's representative that the grant of a decree absolute must be taken as determinative of the validity of a marriage (in particular where there was no evidence that that was in issue before the Family Court). However, the Upper Tribunal Judge concluded that since there had been no finding one way or another as to the validity of the marriage that matter remained to be determined. Secondly, the Upper Tribunal Judge concluded, "by a narrow margin only", that the Claimant was caused procedural unfairness by the decision of Judge Khan given that there was a degree of ambiguity about what issues were actually raised in the decision letter, and the appeal hearing, relating to Ms Goames' exercising (or otherwise) Treaty rights. The Upper Tribunal did not disturb the finding of Judge Khan that the marriage was not one of convenience. The matter was remitted to the First-Tier Tribunal to decide whether the marriage was valid and/or whether Ms Goames was at material times economically active. As I understand it, the re-hearing before the First-Tier Tribunal is to take place in October 2018.
- Section 10(1), Immigration and Asylum Act 1999 (IAA) provides that:
"(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it."
- The Immigration (EEA) Regulations 2006 (2006 Regulations) govern the entitlement to be issued with a residence card as a spouse or extended family member of an EEA national exercising Treaty rights. The parties largely relied on the 2006 Regulations in their un-amended form. The only material difference between the amended and un-amended 2006 Regulations (to which my attention was drawn) concerned regulation 24 to which I will turn to below.
- As to the material provisions of the 2006 Regulations:
2(1) - …..
"EEA decision" means a decision under these Regulations that concerns a person's—
entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or
removal from the United Kingdom…
6.—(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as—
(c)a self-employed person;
7(1) - ….for the purposes of these Regulations the following persons shall be treated as the family members of another person—
"Extended Family member"
8(1) - In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), ….and who satisfies the conditions in paragraph …..(5).
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
"Family member who has retained the right of residence"
10(1) - In these Regulations, "family member who has retained the right of residence" means…..a person who satisfies the conditions in paragraph ….(5).
(5) A person satisfies the conditions in this paragraph if—
(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(6) The condition in this paragraph is that the person—
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the ….the termination of the marriage …..and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15.
Extended right of residence
14.—(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) …is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person….
(3) A family member who has retained the right of residence is entitled to reside in the United Kingdom for so long as he remains a family member who has retained the right of residence.
(4) A right to reside under this regulation is in addition to any right a person may have to reside in the United Kingdom under regulation 13 or 15.
(5) But this regulation is subject to regulation 19(3)(b). 
Permanent right of residence
15.—(1) The following persons shall acquire the right to reside in the
United Kingdom permanently—
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
(f) a person who—
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of residence.
- Regulation 15, like regulation 14, is subject to regulation 19(3)(b). Regulation 19(3) governs the exclusion and removal from the UK of those who have acquired the right to reside in the UK under the 2006 Regulations, in certain prescribed circumstances. Although there is no question of the Claimant having been subject to removal directions on any of these grounds, Mr Karim relies on these provisions as I deal with below. Regulation 19(3) provides as follows:
Exclusion and removal from the United Kingdom
(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if—
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
Decisions taken on public policy, public security and public health grounds
21.—(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin. "
- Although not in the bundle, as I have already adverted to, amended regulation 24 of the 2006 Regulations was referred to by the parties (in argument on the effect of Santos v Secretary of State for the Home Department  EWHC 609 (Admin) to which I return below). That regulation, as it was set out in amended form in Santos, provided at material times:
"24. - (1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3), that person may be detained under the authority of an immigration officer pending a decision whether or not to remove the person under that regulation……..
(2) Where a decision is taken to remove a person under regulation 19(3)(a), the person is to be treated as if he were a person to whom section 10(1)(a) of the 1999 Act applied, and section 10 of that Act (removal of certain persons unlawfully in the United Kingdom) is to apply accordingly.
(3) Where a decision is taken to remove a person under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.
(6) A person to whom this regulation applies shall be allowed one month to leave the United Kingdom, beginning on the date on which he is notified of the decision to remove him, before being removed pursuant to that decision ……
- As to appeal rights in respect of decisions made under the Regulations, regulation 26(1) provides that, "[s]ubject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision". It does not require in terms that any such appeal be in-country. Further, the Regulations do not generally suspend removal pending an appeal. Regulation 29 prescribes (exhaustively) the circumstances in which an appeal will have suspensory effect as follows:
"29.—(1) This Regulation applies to appeals under these Regulations ….
(3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom (other than a decision under regulation 19(3)(b)), any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending."
- In this way the Regulations draw a distinction between EEA decision "to remove" and all other EEA decisions. Any appeal in relation to an EEA decision which is not a removal decision is non-suspensive and does not operate as a bar to removal (Ahmed v Secretary of State for the Home Department  EWCA Civ 303). This means that an EEA decision refusing an application for a residence card, whether based on retained rights of residence or otherwise (as in the Claimant's case), and any appeal against that decision falls outside the suspensory provisions in regulation 29 (Abdullah v Secretary of State for the Home Department  EWHC 1771 (Admin), para 27). In the Claimant's case he was not issued with a removal decision under the EEA Regulations. As is obvious from regulation 19, and as I shall come back to, such a decision could only have been made if he had a right to reside in the UK under the Regulations in the first place. As I have mentioned above, the removal decision in the Claimant's case was made under section 10, IAA.
- As can be seen from the above narration of the facts and as will be seen from the consideration of the Grounds below, of central concern to the Claimant is the decision of 19 May 2017 that his marriage was one of convenience (assuming that there was a valid marriage which is disputed). Regulation 2(1) of the 2006 Regulations provides that "'spouse' does not include a party to a marriage of convenience". Further, under Article 35 of the Citizens Directive (2004/38/EC) provides (under the heading "Abuse of Rights"):
"Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 [notification of decision] and 31 [procedural safeguards]."
- In Sadovska and another v Secretary of State for the Home Department (Scotland)  UKSC 54, the Supreme Court defined a "marriage of convenience" as one which has as its "predominant purpose" the gaining of rights of entry to and residence in the European Union. It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose. Furthermore, except in cases of deceit by the non-EU national, this must be the purpose of them both and the burden of so establishing lies on the Secretary of State. On any appeal the facts and circumstances must be fully investigated and a First-Tier Tribunal must form its own view of the facts from the evidence presented (para 28). As to the scrutinising of any discrepancies in interview, the circumstances in which an interview took place must be borne fully in mind, consistencies (as well as inconsistencies) must be taken into account and the totality of the information available considered (para 16, citing Papajorgji v Entry Clearance Officer, Nicosia  UKUT 38, and 34).
- This is not an appeal, of course. I must consider whether the Defendant's decision of 19 May 2017 that the marriage was one of convenience was irrational, based on what the Defendant knew at that point (and the same is true of the decision that the marriage was not valid). It is right, nevertheless, that I take account of the guidance in Sadovska since no doubt the Defendant would be expected to take account of such guidance in coming to a view as to the status of the marriage.
The Claimant's Claim
- The Claimant's grounds were clarified and clearly articulated in his Skeleton Argument and it is to those grounds that the Defendant has responded.
- The Claimant relies on the following Grounds:
i) Ground 1: There was no service of the curtailment letter of 28 March 2012;
ii) Ground 2: The allegation (which I take to mean the decision) that the marriage was one of convenience was irrational;
iii) Ground 3: The procedure adopted by the Defendant, namely the interview process was unlawful and in breach of the Defendant's guidance;
iv) Ground 4: The removal decision and the proposed removal was unlawful and/or unreasonable
v) Ground 5: The detention was unlawful at common law, under the Human Rights Act 1998 and as a matter of EEA law.
- The Claimant also argued under Ground 4 that the decision of 19 May 2017, refusing his application for a residence card, was not served until 30 May 2017 and accordingly was not legally valid until then. For this reason, the Claimant contends that his detention in the interim was unlawful. I deal with this aspect of the claim separately below.
- I will take each of the grounds in turn.
Ground 1: Service of Curtailment of Leave
- I accept the Claimant's submission that the notice dated 28 March 2012 curtailing his leave was only effective if and when it was communicated to the Claimant (R (Mehmood and A'r) v Secretary of State for the Home Department  EWCA Civ 744, para 42; Anufrijeva v Secretary of State for the Home Department  UKHL 36). The Defendant contends that the notice was served and points to certain facts and matters in support of that contention. I do not have to resolve that issue because, as the Defendant correctly points out, even if the curtailment letter were not served, this means only that the Claimant's leave expired on 31 May 2014 at the latest. At this point, if not earlier, the Claimant was therefore liable to removal under section 10(1), IAA (unless he had acquired the right to reside under the 2006 Regulations in the meantime).
- The Claimant contends, however, that the fact that he did not receive the notice and then act upon it in some way may have influenced the Defendant's later decision to detain him. This is because, the Claimant says, it would have been relevant to the Claimant's "immigration profile". The Claimant says that there is a marked difference between a person who innocently overstays because he has not received a notice of curtailment and a person who has deliberately overstayed knowing his leave has been curtailed. However, there is no evidence at all indicating that the fact that the Claimant remained beyond 27 May 2012 (the date upon which his leave expired) made any difference whatsoever to the much later decision to detain.
- Subject to arguments based on the 2006 Regulations, then, following expiry of his leave on at the latest 31 May 2014, the Claimant was liable to removal as someone who required but who did not have leave under section 10, IAA and this ground fails.
- The Claimant further submitted under this ground that while his leave would not have been extended by section 3C, Immigration Act 1971 pending a determination on his application for a residence card, since a decision under the 2006 Regulations is "confirmatory", that is it does not confer status but confirms it, if he had an entitlement to a residence card on his marriage to Ms Goames he had an entitlement to reside and accordingly was not liable to removal. Thus, he says, if it was irrational to conclude that the marriage between the Claimant and Ms Goames was one of convenience, then it follows that the Claimant had a right to remain as a family member so that he did not require leave. Whether the Claimant is correct in this depends upon the lawfulness of the Defendant's decisions made under the 2006 Regulations which I deal with under Ground 2.
Ground 2: Decision Marriage was one of Convenience was Irrational
- The Claimant contends that he enjoys retained rights of residence since he was married to Ms Goames – who he submits was a "qualified person" (ie an EEA national exercising Treaty rights) – and he otherwise met the requirements for retained right of residence under regulations 10 / 14 of the 2006 Regulations. Accordingly, he contends that he is entitled to reside in the United Kingdom and was not subject to removal under section 10, IAA.
- The Claimant's central argument is that the decision that he did not enjoy retained rights of residence because his marriage was one of convenience was irrational and therefore unlawful. I am reminded by Ms Gray that this is not a precedent fact case; that is, the power to remove was not dependent on the Defendant establishing that the marriage was invalid and/or one of convenience (Ahmed v Secretary of State for the Home Department  EWCA Civ 303) and thus it is not for me to determine whether as a matter of fact the marriage was invalid or a marriage of convenience. My function is to determine whether the conclusion that the Claimant's marriage was one of convenience was irrational and if so what effect that had, if any, on the decision to detain the Claimant.
- The Claimant's principal argument under this Ground is that the interview on 19 May 2017 was not properly or fairly conducted and so it could not have provided a sound basis for a rational decision on the status of the marriage.
- Firstly, Mr Karim submits that the opening lines of the interview suggest that the interviewers did not appreciate the context for the Claimant's application. Mr Karim submits that the interviewers explained the purpose of the interview in terms which suggested that the Claimant's relationship with Mrs Goames was continuing, that is that it was not an application based on retained rights. I do not see any basis for this complaint. The interview was exploratory in nature and the record of the "Explanation of Procedures" signed by the Claimant indicated that he was being interviewed to "dispel concerns that the Home Office has as to whether [the] relationship is genuine or not as well as to investigate the full details of [the] pending application". The Claimant could have been in no doubt about what the interviewers sought to investigate during the interview, namely (among other things) whether the marriage, upon which the application for a residence card depended, was valid and genuine. The Claimant's application after all was for retained rights in a context where the Claimant had made previous unsuccessful applications and well understood what the Defendant's concerns had been.
- Secondly, Mr Karim submits that those conducting the interview should have, and did not, put to the Claimant in terms that the marriage was one of convenience and that it was invalid. I assume that the Claimant in raising this seeks to contend that because of this alleged failure the Defendant could not rationally rely on the answers given in interview. I do not accept that the Defendant is precluded from relying on any or all of its contents because of any failure to put the allegations in terms. The Claimant is entitled to be provided with the opportunity to address those matters that were relevant to the validity of the marriage and its genuineness and to be alerted to the essential elements of the case against him, including the essential elements of any evidence against him (Miah (Interviewer's comments: disclosure: fairness)  UKUT 515 (IAC)). In my judgment, there is ample evidence that the Claimant was provided with that opportunity with the knowledge that the interviewers were concerned to explore the validity of the marriage and its genuineness. The Claimant knew that the interviewers were concerned with the validity and genuineness of the marriage since they made that clear in their questioning ("So you got a proxy marriage… now as you know, this was the reason why your application got refused". "The Home Office cannot really accept that you were married to this woman" and that they needed "evidence that the relationship actually existed") and this was apparent also from the "Explanation of Procedures." The interviewers fully explored the issues concerning, and evidence relating to, the Claimant's purported relationship with Ms Goames which was self-evidently relevant to the genuineness of the marriage. I not consider that it was necessary to put in terms that the marriage was invalid or that the marriage was not genuine (although in fact the interviews got very close to doing so) - the Claimant could have been in no doubt about what the interviewers were seeking to discover. In consequence, the Defendant is quite entitled to rely on the Claimant's answers in interview in coming to a judgement on the status of the marriage and there was no unfairness or impropriety in doing so.
- Thirdly, Mr Karim submits that the Claimant ought not to have been interviewed without Ms Goames also being interviewed. Again, I assume that the Claimant contends that this alleged failure was such that the Defendant could not rationally rely on the answers given in interview. The pro forma interview record sheet includes a column to record answers from the "spouse." Mr Karim submits that this means it is expected that both spouses will be interviewed so that their accounts can be tested for inconsistencies. There is nothing in this. There may be many reasons why a spouse, or ex-spouse, cannot (or will not) be interviewed; that cannot be a reason to deprive the Defendant of the opportunity to explore the genuineness of a marriage or for that matter to deprive an applicant of the opportunity to substantiate it. The Defendant's policies do not require that both parties are interviewed and I accept the Defendant's argument that it was manifestly reasonable to base the decision of 19 May on the information provided by the Claimant alone as his application was for retained rights after a divorce.
- Fourthly, Mr Karim points to the Home Office Guidance, "Marriage Investigations" (Feb, 2017) which advises interviewers, unsurprisingly, that marriage interviews must be conducted in "a properly probing, but balanced, way". Mr Karim submits that the interviewers did not explore alleged inconsistencies or put to the Claimant that a marriage was one of convenience so as to give the Claimant the opportunity to explain or answer these matters and that was unfair. I have largely dealt with this already and again there is nothing in this point. The Claimant was told the purpose of the interview and the questions were plainly designed to explore the relevant issues and the Claimant was given a proper opportunity to answer them.
- Fifthly, Mr Karim points to the fact that the decision letter of 19 May 2017 refusing the Claimant's application for a residence card adverts to "discrepancies throughout the interview" but does not identify what they are, notwithstanding that there were 287 questions asked at interview. This is especially important Mr Karim says because the decision of Judge Khan promulgated on 12 July 2017 concluded that the Defendant had failed to shift the burden onto the Appellant to establish that the marriage was one of convenience. In so doing, Judge Khan relied specifically on the fact that the Defendant's presenting officer could not point to any discrepancies. Again there is nothing in this. The Defendant was entitled to form a view as to the consistency of the Claimant's accounts, whether or not the presenting officer was able to do so at a later hearing. In reaching a decision on rationality, I am concerned with the facts known to the Defendant at the material time.
- Sixthly, the Clamant complains that the allegation that the marriage was not one of convenience was not made until after his divorce making it especially difficult for him to establish the genuineness of the marriage. The Claimant knew as early as 17 December 2012 that the Defendant had concerns about the genuineness of the marriage. Further, Judge Monson found that there was no up-to-date evidence of the Claimant's continuing cohabitation with Ms Goames at the address given and adverted both to the Claimant's failure to attend a marriage interview and Ms Goames' failure to give evidence at the hearing. These matters all pointed to concern about the genuineness of the marriage and the Claimant could not have been in any doubt about the Defendant's concerns. During the course of the interview, however, the Claimant could not even demonstrate that he knew basic personal facts about Ms Goames. The Claimant did not know from which part of France Ms Goames originated; he thought, but was not sure, that she was born in Ghana; he did not know for sure when Ms Goames arrived in the UK; and he was unable to give any convincing or consistent detail about where Ms Goames worked while they were said to be married.
- In my judgment, bearing in mind the full background as it was known to the Defendant including the contents of the interview, the decision that the marriage was one of convenience cannot be stigmatized as irrational. This is for essentially the same reasons as those given by Ockleton VP. Indeed the Defendant submits that the issue of the rationality of the decision has already been determined by Ockleton VP and that though this does not give rise to a formal issue estoppel, it is generally not permissible for the issue to be re-litigated between the same parties in those proceedings or in fresh proceedings and I should not permit it (BA and O'rs v Secretary of State for the Home Department  EWCA 944, paras 26-7). I have in any event considered the issue afresh and I reject the Claimant's claim that the decision that the marriage was one of convenience was irrational.
- However, even if I were wrong about this, it makes no difference to the outcome on this Ground since the primary finding of the Defendant was that the marriage was not valid at all. There is no rationality challenge to this finding and nor could there be. There is nothing surprising about the Defendant's decision on this issue since the Defendant had already rejected the Claimant's applications on the ground that the marriage was invalid and Judge Monson had already concluded that the marriage certificate was a false document. Indeed, at the appeal hearing before Judge Monson the Claimant had himself withdrawn his appeal against the Defendant's decision that the marriage was invalid. These are matters that the Defendant was entitled to rely upon and in the circumstances, even if the Claimant had argued it, the Defendant's decision of 19 May 2017 as to the validity of the marriage could not be said to be irrational. I note that the decision of Judge Monson (which would have been the "starting point" in any second appeal: Devaseelan v Secretary of State for the Home Deparment  UKIAT) was not put before Judge Khan. This was so though it was in the possession of the Claimant's representative, something Judge O'Ryan labeled "extraordinary". In any event, Judge Monson's decision remains the starting point on the validity of the marriage.
- However, Mr Karim submits that the decree nisi sent to the Defendant with the Claimant's application for a residence card on 11 January 2017 changed the landscape. This is because, Mr Karim submits, the grant of the decree means that the Family Court had concluded that the marriage was indeed valid. Mr Karim argues that one cannot have a divorce without a valid marriage and accordingly there was no basis for rejecting the application on the ground that the marriage was invalid. However, the insuperable difficulty for Mr Karim is that the Claimant has adduced no evidence indicating that the validity of the marriage was tested before the Family Court. There is nothing indicating that that it was in issue at all – a point made both by Judge Khan in his decision of 12 July 2017 and by Judge O'Ryan on appeal. The decrees nisi and absolute are consistent with the marriage being valid but they do not prove that it was. It is to be remembered that the Claimant himself withdrew his appeal before Judge Monson against the finding that his marriage was invalid.
- Mr Karim also relies on Awuku v Secretary of State for the Home Department  EWCA Civ 178 for the proposition that a marriage by proxy may be a valid marriage where it is valid under the lex loci celebrationis. That is uncontroversial. It does not mean, however, that every purported marriage by proxy is valid because it is said to have been contracted in a State that recognises marriage by proxy. Mr Karim submitted before me that the Defendant could not point to anything that indicated that the marriage was invalid. However, this ignores the fact that Judge Monson had found that the marriage certificate was false and moreover that it was known to be so by the Claimant. The Claimant was found to have relied on a fraudulent certificate to establish a marriage that could not otherwise have been shown to be valid, even taking account of the fact that Ghanaian law may recognise marriages by proxy.
- If the marriage was not valid, as the Defendant was entitled to conclude, then since the Claimant's application for a residence card was dependent upon him having entered into a (lawful) marriage, the Defendant's decision of 19 May 2017 refusing a residence card on the ground, inter alia, that the marriage was not valid cannot be impugned as unlawful. The fact that the Defendant went on to reach a decision that, if valid, the marriage was one of convenience does not help the Claimant even if that decision was flawed (and I have concluded that it was not).
- The Defendant rationally concluded that the Claimant did not, therefore, retain rights of residence under regulations 10 and 14 of the 2006 Regulations for reasons given in her letter of 19 May 2017 and this ground therefore fails.
Ground 3: The Procedure adopted by the Defendant was unlawful and in breach of the Defendant's Guidance
- This ground is closely related to Ground 2.
- The Claimant submits that the procedure adopted at interview was unlawful because, firstly, no prior notice was given as to its subject matter and secondly, no PACE caution was given notwithstanding that the interviewers were seeking to elicit information that could found a criminal offence. I have dealt with the first point above: the Claimant was clearly made aware of the issues that were to be explored in the interview. As to the need for a caution, it is accepted that the interview was an "administrative", and not a criminal interview. However, the Claimant points out that the Defendant's guidance ("Enforcement Interviews" (2016, July)) instructs immigration officers to have regard to any relevant provision of the PACE Codes of Practice when investigating a criminal offence and that if, during the course of an administrative interview, information is discovered that gives rise to a reasonable suspicion that a criminal offence has been committed which is likely to be pursued to prosecution the interview should be suspended and advice taken from the police. The Claimant says that this means that he should have been given a PACE caution. I do not agree. This was not a criminal interview. If there followed a prosecution for a relevant offence, the admissibility of the interview would be a matter for a criminal court but that does not make unlawful the administrative interview here. Nor is there anything to indicate that anything the Claimant said gave rise to a reasonable suspicion that a criminal offence had been committed that was likely to be pursued to prosecution.
- It is said further, however, that the decision maker did not come with an open mind. The Claimant relies, in particular, on Miah (Interviewer's comments: disclosure: fairness)  UKUT 515 (IAC). In Miah, the Upper Tribunal (McCloskey P) noted that European Commission guidance formulates a threshold for interviews, namely that there are "serious doubts about the genuineness of the marriage" on the basis of information available and those doubts have not been dispelled and indicates that simultaneous interviews with the purported spouses as well as background checks are the main investigation techniques employed throughout the Union. The absence of an interview with Ms Goames, the Claimant contends, is inconsistent with the guidance and evidences unfairness. I have dealt with this point above and in my judgment there is nothing in it on the facts of this case. Mr Karim further contends that there is a requirement that the case against the Claimant be fully put in interview. Again I have dealt with this above. The Claimant was afforded adequate detail about the case against him. Mr Karim also relies on the decision in Miah to argue that any adverse comments about the Claimant made by the interviewers should not have been disclosed to the decision – maker. There is nothing, of course, in general improper about interviewers conveying comments and opinions to the decision-maker for them to consider and take into account. As was said in Miah, "the interviewer will be uniquely placed to comment on the subject's presentation, reactions and demeanour generally" (para 17). However, Mr Karim submits that if there were adverse comments conveyed, that made the decision of 19 May 2017 procedurally unfair. However, there is no evidence that there were any such adverse comments. Mr Karim submits that it is inconceivable that the interviewers were able to transmit full details of the interview to the decision-maker before she made her decision that the marriage was one of convenience because it was made so quickly after the interview concluded. By this, Mr Karim suggests, as I understand it, that the decision-maker must have relied solely on the interviewers' assessment and/or opinions and did not apply her own mind to the issues before her and/or took unfair account of adverse comments made by the interviewers. There is no evidence to support this (besides Mr Karim's invitation to infer). Even if there were adverse comments made by the interviewers and communicated to the decision-maker, the question for me is whether the conveying of those comments rendered the decision-making process procedurally unfair because, for example, they distorted what had occurred in interview (Miah, paras 16-7). There is simply no evidence to suggest this happened in this case.
- The Claimant also argues that the fact that the decision was made so quickly after the interview concluded indicates that the outcome was pre-determined. Again, on the fact of this case I am not persuaded that this is a good point. The decision was reached quickly but against a long history of which the decision-maker would have been aware, including doubts expressed judicially about the validity of the marriage and the existence of a relationship between the Claimant and Ms Goames.
- For these reasons, Ground 3 is dismissed.
Ground 4: The Removal Decision and Proposed Removal was Unlawful and/or Unreasonable
- The Claimant's essential challenge under this ground is to the decision to serve a removal notice under section 10, IAA and to detain the Claimant without regard, Mr Karim submits, to her own policies (Mohibullah v Secretary of State for the Home Department (TOEIC-ETS- judicial review principles)  UKUT 561 (IAC)). I have dealt in part with the decision taken under section 10 under Ground 2. The Claimant further contends that had the issue of removal been considered within the framework of the 2006 Regulations, removal would not have been possible but in any event any appeal against a removal decision would have had suspensory effect and he would not have been detained. The Defendant's position is that the Defendant was liable to removal under section 10 and as such he was lawfully detained under paragraph 16, Sch 2 of the Immigration Act 1971.
- Mr Karim submits under this Ground that the Defendant is required as a matter of law to adopt the decision-making mechanism most favourable to the Claimant where more than one is available (Mohibullah v Secretary of State for the Home Department (TOEIC-ETS- judicial review principles)  UKUT 561 (IAC)). I accept this as a general proposition. Mr Karim then relies on this general proposition to argue that any removal decision in the Claimant's case ought to have been effected under the 2006 Regulations, and not section 10, IAA which was less favourable to the Claimant, and, further, that a decision on whether to detain the Claimant should have been made in a way which was compliant with the Defendant's policies on detaining the spouses of EEA nationals.
- Mr Karim relies on Santos v Secretary of State for the Home Department  EWHC 609 (Admin) to submit that the Defendant in this case adopted a procedure that was not the most favourable to the Claimant causing prejudice to him which resulted in his detention. The facts in Santos are a very long way from the facts in this case and reliance on it is misplaced. In Santos, Mr Santos applied for an EU residence card on the basis of his (actual) marriage to an EU citizen. Following the breakdown of his relationship with his wife, the Defendant communicated with Mr Santos indicating that he had submitted insufficient evidence to support his application for a residence card. The Defendant did not, however, make a decision on his residence card application and so a right of appeal to the First-Tier Tribunal was not generated. Mr Santos was then arrested as an over-stayer and detained by the Defendant with a view to his removal from the UK, pursuant to section 10, IAA. He challenged the lawfulness of his proposed removal and his detention in judicial review proceedings. Thereafter (while the judicial review proceedings were pending), Mr Santos made a further application for a residence card and this was refused on the ground that he had submitted insufficient information to establish that he was a family member of an EEA national. The Claimant appealed this decision to the First-Tier Tribunal and his appeal was allowed and Mr Santos was duly granted a residence card. As to the lawfulness of his detention, Lang J held that on the evidence, the decision in Mr Santos' case ought not to have been made under section 10, IAA but instead within the framework of the more generous 2006 Regulations. Applying the 2006 Regulations, according to Lang J, the Defendant could not have had "reasonable grounds for suspecting" that the Claimant was "someone who may be removed from the United Kingdom under regulation 19(3)" (amended regulation 24 of the 2006 Regulations, set out above). However, this was because at the point of his detention under section 10, IAA the Defendant knew that Mr Santos had been married to an EEA national exercising Treaty rights and thus enjoyed a right of residence. On that basis the Defendant ought to have appreciated when Mr Santos was detained that he was entitled to reside in the UK. Importantly, Lang J observed that: "In terms of considering the lawfulness of the decision to detain with a view to removal in January 2012, it is significant that these facts have never been challenged by the Defendant. For example, it has never been alleged that the Claimant entered into a sham marriage, or that [Mr Santos' wife] was not genuinely exercising Treaty rights. Importantly, at that stage, there had never been any formal determination of his application for a residence card – it had never been refused, merely returned" (para 81). The position in Mr Santos' case is very different therefore from the Claimant's case. In Mr Santos' case, he had the right to reside, and the facts evidencing that were known of by the Defendant at the time of his detention. Any decision to remove him in those circumstances could only be effected under the 2006 Regulations pursuant to regulation 19 which would have granted him a suspensory right of appeal under regulations 26 and 29 and a one-month period of grace under regulation 24(6). In the Claimant's case, the Defendant formed the rational view that the Claimant had not been in a valid marriage and therefore had never enjoyed a right to reside under the 2006 Regulations. In those circumstances, the Defendant did not act unlawfully in failing to issue removal directions pursuant to regulation 19 and did not act unlawfully in issuing removal directions under section 10, IAA.
- In what is essentially the same point, Mr Karim further submits that in the Claimant's case the right to a suspensory appeal arose because the Claimant's application sought in essence confirmation of an entitlement (that is, not conferral of a right) to residence under regulation 10 of the 2006 Regulations and more particularly, as I understood Mr Karim's submissions, to permanent residence under regulation 15. Mr Karim contends that the Defendant was therefore wrong to treat the application as merely one concerning refusal of a residence card. If the Defendant had properly treated the Claimant's application as concerning permanent residence, the Defendant could only have removed him pursuant to the high threshold set by regulation 21 of the 2006 Regulations. Thus the decision to remove under section 10, IAA, the Claimant submits, afforded fewer rights to the Claimant in circumstances where he enjoyed more favourable rights under the 2006 Regulations and that would have impacted on any decision to detain. I do not accept this. Mr Karim's argument fails for the same reason as his reliance on Santos does not assist him. The Defendant formed the rational view that he was not, and had not ever been, entitled to reside under the 2006 Regulations, whether pursuant to regulation 10 or regulation 15, because his marriage was not valid, alternatively was one of convenience, and thus the Claimant was not entitled to enjoy any of the benefits claimed under the 2006 regulations.
- The Claimant claims that in any event he should have enjoyed an in-country right of appeal since the allegations against him concerned in essence issues of honesty and deception and an out-of-country appeal would not have met the requirements of Article 8. Mr Karim relied upon Ahsan v Secretary of state for the Home Department  EWCA Civ 2009 and Kiarie and Byndloss v Secretary of state for the Home Department  UKSC 42. This was not a pleaded ground and the Defendant submits that the Claimant should not be permitted to rely upon it. In my view there is nothing in the point in any event. The Claimant has enjoyed an appeal in-country and this is due to be re-heard in October 2018. There is no suggestion that removal is to be effected before then. Any challenge is therefore moot or premature. If the Defendant takes steps to remove the Claimant before his appeal is re-heard, it will be open to the Claimant to argue the Kiarie and Byndloss point. I say nothing about the merits of any such challenge except that it would be premature to argue it now.
- The Claimant further contends that had his case been considered under the 2006 Regulations, it was unlikely that he would have been detained because of the Defendant's policy not to detain EEA nationals and their family members pending determination of their entitlement to remain. I have already indicated that there is no sound basis for contending that the Claimant ought to have been dealt with under the 2006 Regulations. In addition, the Defendant's detention policy in relation to the family members of EEA nationals on which Mr Karim relies barely assists him in any event. The Defendant's Instructions (Chapter 55, "Enforcement Instructions and Guidance") provide that:
"Spouses/Civil Partners of British citizens or EEA nationals – non-criminal casework cases CD cases
If an [immigration] offender is married to or in a civil partnership with an EEA national, detention should not be considered unless there is strong evidence available that the EEA national spouse/civil partner is no longer exercising treaty rights in the UK, or if it can be proved that the marriage was one of convenience and the parties had no intention of living together as man and wife from the outset of the marriage or civil partnership."
- As I have already concluded, the Defendant rationally concluded that the Claimant was not married to an EEA national (Ms Goames) at all and/or had entered a marriage of convenience.
- This Ground therefore fails.
Ground 5: The detention was unlawful at common law, under the Human Rights Act 1998 and as a matter of EEA law.
- In his Skeleton argument the Claimant repeats many of the points under this Ground that he made under his other Grounds and where I have dealt with them already I will not do so again. Mr Karim reminds me of the Hardial Singh principles and in addition, and this is uncontroversial, it is for me to decide on the legality of the detention (that is, it is not a rationality assessment) but I must proceed on the basis of what the Defendant knew at the time, not with the benefit of hindsight (R (LK (Somalia) v Secretary of State for the Home Department  EWHC 1229 (Admin)).
- Under this Ground the Claimant firstly contends that his detention was not in compliance with the Defendant's policy on detention (Chapter 55, "Enforcement Instructions and Guidance" para 55.3) because detention under the policy will not be justified unless there are "strong grounds for believing a person will not comply with conditions of temporary release" and that "[a]ll alternatives to detention must be considered before a detention is authorised". Mr Karim points to the Defendant's instructions which include the following factors that must be taken into account in deciding whether to detain:
- "What is the likelihood of the person being removed and, if so, after what timescale?
- Is there any evidence of previous absconding?
- Is there any evidence of a previous failure to comply with conditions of immigration bail (or, formerly, temporary admission or release)?
- Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry).
- Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave).
- What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?
- What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14).
The Claimant submits that none of these factors applied in his case. The Defendant's initial detention review (and the ones following are to similar effect) records the reasons for detention as follows: "The subject is considered high risk to abscond as the subject has failed to regularise his stay in the UK. The subject has no outstanding applications and a lack of family ties in the UK all of which create a risk of absconding. The subject has shown a complete disregard and inability to comply with UK immigration laws. Therefore there is nothing to suggest that the subject will comply with reporting restrictions". All of these were matters that required consideration under the Defendant's policy (Ch 55). Given the Claimant's immigration history and the repeated unsuccessful applications for a residence card, these conclusions cannot be said to be irrational, and these facts and matters justified the Claimant's detention.
- Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?"
Secondly, Mr Karim submits that it should have been apparent to the Defendant that she could not effect removal of the Claimant within a reasonable period because her own policies precluded the Claimant's removal at material times. This was because the Claimant had issued judicial review proceedings and in addition because he had raised human rights grounds in those judicial review grounds. Chapter 60 of the Defendant's "Enforcement Instructions and Guidance" ("Judicial Reviews and Injunctions") provided at the material time that the Defendant would normally defer a removal where a judicial review application has been properly lodged, save in cases where there has been less than six months since a previous judicial review or statutory appeal or the person is within the removal window. Further, where a non-EEA national claims to have a right of residence under the 2006 Regulations in the judicial review, removal cannot take place until the grounds have been considered and where the grounds do not demonstrate that the person has a right of residence under EU law, removal can continue but where the judicial review grounds have some merit as to whether a person has a right of residence under EU law, the removal will be suspended. The Claimant therefore argues that once the judicial review claim was lodged in the Upper Tribunal on 22 May 2017, the policy required that removal was suspended and in those circumstances removal could not have been effected within a reasonable period so further detention after that date violated the Hardial Singh principles. The Claimant also contends that the Defendant could not have removed the Claimant before his human rights claim as included in his judicial review application was determined and again, therefore, the Defendant would have known by 22 May 2017 for that reason too that removal could not have been effected within a reasonable period. The Claimant further relies on this judicial review claim as a basis for contending that if not earlier, the Claimant ought to have been released on 26 June 2017 or thereabouts when this claim was issued. I do not accept that the mere issue of the judicial review claims (including a human rights claim) meant that at the point of issue the Defendant should have formed the view that removal could not be effected within a reasonable period. I do not consider that any of the matters relied upon indicate that the Claimant's removal could not be effected within a reasonable period. Though the issue is what the Defendant knew at particular times, it is worth noting here that the human rights claim was in fact determined speedily, as was the (non-suspensory) appeal before Judge Khan, and the Defendant sought expedition in the judicial review claim before the Upper Tribunal. As matters became more prolonged making removal less likely within a reasonable period, the Claimant was released; that being within 3 months from the start of his detention.
Mr Karim submits that the detention documents generated throughout the Claimant's period of detention do not acknowledge the Claimant's position as a person seeking to exercise EEA residence rights or acknowledge changes in circumstances that might affect the legality of the Claimant's continuing detention (including that Judge Khan had concluded that the marriage was not one of convenience). Further, on 25 May 2017 the case records state that "[t]here are no legal barriers to removal at present" when, Mr Karim submits, there was such a barrier, namely the extant judicial review proceedings and human rights claim. Thus, he submits, the Defendant did not turn her mind to the matters that might have justified release from detention. There is nothing in these points. The issuing of judicial review proceedings and the human rights claims did not by themselves of necessity mean that removal was precluded or that removal could not be effected within a reasonable period which is in essence what the records reflect.
The Claimant also contends that at the point that Judge Khan made his decision that the Defendant had not discharged the burden of establishing that the marriage was one of convenience, it was clear to the Defendant that she could not rely on this as a basis for refusing the Claimant's application and he ought to have been released at the latest by then. Mr Karim refers here too to the guidance on detaining spouses of EEA nationals set out above which makes clear that there must be strong evidence available of a marriage of convenience for detention of an EEA spouse to be justified. I do not accept that at the time the decision was made that the Defendant did not have before her strong evidence to that effect. But in any event, as I have said repeatedly, the Defendant's decision was based in the first place on the conclusion that there was not a marriage at all. The Defendant had a discrete –a primary - basis for concluding that the Claimant did not fall to be treated as a family member of an EEA national. There was, therefore, no illegality in her declining to treat the Claimant as a spouse of an EEA national.
This Ground therefore fails.
Service of the Decision
The Claimant submits that the decisions of 19 May 2017 were not effective until the date upon which they were served upon him (R (Mehmood and A'r) v Secretary of State for the Home Department  EWCA Civ 744, para 42), and before then any the detention would be unlawful. I accept that there would be no lawful basis for the Claimant's detention before the decisions of 19 May 2017 were served upon him - that appears to be uncontroversial.
The Claimant's case, supported by his witness statement, is that the decisions were only received by him via a fax on 30 May 2017. It is now accepted by the Defendant that although the Defendant's records indicate that the letters were sent to the Claimant's solicitors by second class post on 19 May 2017, they were in fact sent to the IRC on what the Defendant says was the same date, but not served upon the Claimant's solicitors until 30 May 2017. The Defendant, however, points to evidence which she says indicates that the Claimant had received the decisions by 19 May 2017 or shortly thereafter. The matters suggest that the Claimant may have had some awareness of the reasons for the decision, though they may indicate guess work on the part of the Claimant particularly given the matters explored in interview. The Defendant also points to the date of service recorded on the decision letter of 24 May 2017 and contends that if the decisions were not served on 19 May then they were served on 24 May. On balance, I do not consider that the evidence demonstrates that the Claimant had received the refusal letters before 30 May 2017. I accept the Claimant's evidence that he did not receive them until 30 May 2017, bearing in mind in particular the unreliability of the Defendant's records.
I conclude therefore that the Claimant was unlawfully detained for the period 19 May 2017 to 30 May 2017 (11 days).
All of the Claimant's grounds are dismissed save that I conclude that the Claimant was unlawfully detained for a period of 11 days (19 May 2017 to 30 May 2017).
Note 1 The Regulations have now been revoked and replaced with 2016 Regulations carrying the same title. The parties referred to the un-amended 2006 Regulations and included those Regulations only in the authorities bundle and so it is those to which I refer. I do note the decision under challenge was made under the 2016 Regulations, however. [Back]
Note 2 Regulation 14(5) was amended at a later date but it was not suggested to me that that was of any material effect (and nor was the amendment put before me). [Back]
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