Aslam, R (On the Application Of) v The Secretary of State for the Home Department, Court of Appeal - Administrative Court, August 06, 2018, [2018] EWHC 2123 (Admin)

Resolution Date:August 06, 2018
Issuing Organization:Administrative Court
Actores:Aslam, R (On the Application Of) v The Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWHC 2123 (Admin)

Case No: CO/3012/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6 August 2018

Before :

KARON MONAGHAN QC

(SITTING AS A DEPUTY HIGH COURT JUDGE)

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Between :

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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

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KARON MONAGHAN QC:

  1. 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

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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''.

  15. On 20 May and then on 24 May 2017, the Claimant's detention was reviewed and maintained.

  16. 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.

  17. 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.

  18. 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.

  19. On 1 June 2017, the Claimant's detention was reviewed and maintained.

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