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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Aslam, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 2123 (Admin) (06 August 2018) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2018/2123.html Cite as: [2018] EWHC 2123 (Admin) |
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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)
____________________
R (on the Application of FARHAN ASLAM) |
Claimant |
|
- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Ms Jennifer Gray (instructed by Government Legal Service) for the Defendant
Hearing dates: 22 March 2018
____________________
Crown Copyright ©
KARON MONAGHAN QC:
The Factual Background
The Law
"(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."
"General Interpretation
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…
……
"Qualified person"
6.—(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as—
(a)a jobseeker;
(b)a worker;
(c)a self-employed person;
…….
Family Member
7(1) - ….for the purposes of these Regulations the following persons shall be treated as the family members of another person—
his spouse…..;
……
"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
(d) either—
(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). [2]
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.
Exclusion and removal from the United Kingdom
19. …..
(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. "
"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 ……
"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."
"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]."
The Claimant's Claim
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.
Ground 1: Service of Curtailment of Leave
Ground 2: Decision Marriage was one of Convenience was Irrational
Ground 3: The Procedure adopted by the Defendant was unlawful and in breach of the Defendant's Guidance
Ground 4: The Removal Decision and Proposed Removal was Unlawful and/or Unreasonable
"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."
Ground 5: The detention was unlawful at common law, under the Human Rights Act 1998 and as a matter of EEA law.
- "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).
- 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)?"
Service of the Decision
Conclusion
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]