COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/02127/2006]
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN DBE
LORD JUSTICE LONGMORE
| TC (KENYA)
|- and -
THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
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Mr T Eicke (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Lord Justice Pill:
"this sector-by-sector, piecemeal approach to the right of free movement and residence."
"To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationship contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures."
Under the heading "General Provisions" Article 1 provides:
"This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health."
In Article 2 "Union citizen" is defined as "any person having the nationality of a Member State" and "family member" includes, by virtue of Article 22a, "the spouse". Rights of exit and entry are set out in Chapter 2. Rights of residence followed in subsequent articles. Article 23 provides:
"Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there".
"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 and 31."
"Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health."
"1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."
Article 28, so far as reference need be made:
"1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens except if the decision is based on imperative grounds of public security as defined by Member States, if they:
(a) have resided in the host Member State for the previous 10 years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989."
"The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security."
Article 31 provides:
"The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health."
"Conversely, there would be an abuse if the facilities afforded by Community law in favour of migrant workers and their spouses were invoked in the context of marriages of convenience entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member states."
"is not applicable where the national of a Member state and the national of a non-Member state have entered into a marriage of convenience in order to circumvent the provisions relating to entry and residence of nationals of non-Member states."
Lastly, as regards the alternative argument of the United Kingdom Government that failed asylum seekers such as the applicants in the main proceedings should not be allowed to rely on Article 41(1) of the Additional Protocol, since any other interpretation would be tantamount to endorsing fraud or abuse, it must be borne in mind that, according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends (Case C-255/02 Halifax and Others  ECR I-1609, paragraph 68) and that the national courts may, case by case, take account -- on the basis of objective evidence -- of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely (see inter alia Case C-212/97 Centros  ECR I-1459, paragraph 25).
"1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29."
Further, the reference to Articles 30 and 31 in article 35 is by way of "procedural safeguards". That is distinguishable from the substantive rights set out in Articles 27 and 28.
"58. That said, where the marriage is genuine and where, on the return of the citizen of the Union to the Member State of which he is a national, his spouse, who is a national of a non-Member state and with whom he was living in the Member State which he is leaving, is not lawfully resident in the territory of the Member State, regard must be had to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950… That right is among the fundamental rights which, according to the Court's settled case-law, restated by the preamble to the Single European Act and by Article 6(2) EU are protected in the Community legal order."
That suggests a similar approach to the concept of proportionality in a context such as the present as would be followed when it is applied in other areas of the law. There is a public interest in immigration control and it is, in my judgment, a major feature of the very public policy which the Citizens Directive is concerned to advance.
"He [the appellant] had to travel to Kenya for the business at least three times a year. Each time he would stay for about one month. He spent about 40% of his time in Kenya."
"Having considered all the evidence in the round, we are satisfied to a high degree of probability that the appellant's marriage was entered into solely for immigration purposes in order to extend his stay in the UK and not as confirmation of a genuine and committed relationship. We conclude that the respondent's decision that the marriage was one of convenience was properly based on the evidence before him and in accordance with the law. We dismiss the appeal on immigration grounds."
"We accept that the appellant has established a private life in the UK consisting of his business. He stated that he spends approximately 40% of his time in Kenya for the business and therefore we consider that any interference with his right to respect for his private life would be minimal. Balancing that interference against the respondent's important public duty of maintaining an effective system of immigration control, we conclude that it is both justified and proportionate. We dismiss the appeal on human rights grounds."
Lady Justice Arden DBE:
Lord Justice Longmore:
Order: Appeal dismissed.