England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		6 December 2016

LORD JUSTICE LLOYD JONES:

1. This is an appeal against an order made by Upper Tribunal Judge Eshun on 3 June 2015, which allowed the Secretary of State's appeal against an order made by Judge of the First-tier Tribunal Raikes on 12 March 2014 that the appellant, Mr Awuku, was a spouse of an EEA national for the purposes of Regulation 7 of the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal proceedings were themselves an appeal of a decision of the Secretary of State on 19 December 2013 refusing Mr Awuku's application for a residence card as a confirmation of a right to reside in the United Kingdom. The appeal against the order of the Upper Tribunal is also brought on the basis that it failed to consider Mr Awuku's rights under Article 8 of the European Convention on Human Rights when allowing the appeal.
2. The appeal comes before us in unusual circumstances in that the Secretary of State agrees with the appellant that the Upper Tribunal was incorrect to find that Mr Awuku was not a spouse for the purposes of Regulation 7 of the EEA Regulations and agrees that the appeal should be allowed. However, given what is said on behalf of the Secretary of State to be the wider importance of the issues arising on appeal and the need to overrule Upper Tribunal authority in allowing the appeal, the Secretary of State invites the court to give judgment on the appeal following a hearing, rather than disposing of the appeal without determining the merits.
3. Mr Awuku was born on 10 October 1973 and is of Ghanaian nationality. He was married by proxy in Ghana to a German national on 4 February 2013 under Ghanaian customary law. On 28 August 2013, he applied for a residence card as a confirmation of a right to reside in the United Kingdom as the spouse of an EEA national who is exercising free movement rights. The application was refused on 28 November 2013 on the basis that the Secretary of State was not satisfied that Mr Awuku's claimed marriage was registered in accordance with the Ghanaian Marriage and Divorce (Registration) Law 1985.
4. First-tier Tribunal Judge Raikes considered Mr Awuku's appeal on the papers on 4 March 2014. On the basis of the evidence provided, including his marriage certificate and a statutory declaration, the judge was satisfied that he was the spouse of an EEA national. On the evidence before her, the judge found that the marriage between the appellant and the EEA national was recognised in the country in which it took place, that it was properly executed such as to satisfy the requirements of the law in the country in which it took place and that there was nothing in the law of either party's country of domicile that restricted freedom to enter into the marriage. Although it was unnecessary for her to do so, given her finding that Mr Awuku was a family member of the EEA national for the purposes of the EEA Regulations, the First-tier Tribunal Judge also considered whether Article 8 was engaged by the Home Office decision and came to the conclusion that any removal would be a disproportionate breach of the Article 8 rights of Mr Awuku, his spouse and his family.
5. Permission to appeal to the Upper Tribunal was granted on the basis that the judge had erred in failing to have regard to Kareem [2014] UKUT 24, which required her to consider whether the marriage was recognised in the EEA national's home state, in this case Germany. That appeal was heard by Upper Tribunal Judge Eshun on 22 May 2014. Judge Eshun allowed the Secretary of State's appeal on the basis that the effect of Kareem is that, as he put it, in this case it was for the German authorities to determine whether Mr Awuku's marriage to his EEA national spouse by proxy was valid and recognised by Germany. In the absence of any evidence that his marriage was recognised by the German authorities, Mr Awuku had failed to discharge the burden of proof on him and the decision of the First-tier Tribunal could not stand. Judge Eshun went on to conclude, in addition, that given the lack of evidence as to the validity of Mr Awuku's marriage under German law, the judge's findings on Article 8 could not stand.
6. Permission to appeal to the Court of Appeal was granted by Moore-Bick LJ on 24 October 2014 on one of four grounds relating to the Kareem point. On a renewal hearing, Mr Awuku was also granted permission to appeal on another ground relating to Article 8. Counsel for Mr Awuku has subsequently reformulated the two grounds as three grounds of appeal, to which I will refer in a moment.
7. At the heart of the case, lies the decision of the Upper Tribunal in Kareem. There the Upper Tribunal addressed the question as to how it was to identify which national legislation applied. It took as its starting point the fact that the rights of free movement start from EU citizenship. A person having the nationality of a member state is an EU citizen by virtue of that nationality of a member state. It considered that it followed from these provisions that an EU citizen's rights of free movement and residence are intrinsically linked to that person's nationality of a member state. In light of the connection between rights of free movement and residence and the nationality laws of member states, the Upper Tribunal concluded that in a situation where the marital relationship is disputed, the question of whether there is a marital relationship is to be examined in accordance with the law of the member state from which the union citizen obtains nationality and from which, therefore, that citizen derives free movement rights.
8. It also came to the same conclusion by an alternative route. It considered that free movement of persons would not be achieved in EU law if it were left to a host member state to decide whether an EU citizen has contracted a marriage. Different member states would be able to reach different conclusions about that EU citizen's marital status. That would leave EU citizens unclear as to whether their spouses could move freely with them and might mean that the EU citizen could move with greater freedom to one member state where the marriage would be recognised than to another member state where it might not. In the view of the Upper Tribunal, this would impede freedom of movement of persons in the EU and would therefore be contrary to fundamental principles of EU law.
9. In the present case, Mr Awuku now relies on three grounds of appeal. Ground 1 relates to the law by which the validity of a marriage is to be determined for the purposes of Regulation 7 of the EEA Regulations. Here it is submitted that the Upper Tribunal erred in concluding that the member state of which the partner is a national needs to recognise a proxy marriage as valid. Ground 2 relates to the lack of evidence confirming that German law recognises proxy marriages as valid. Here it is submitted by the appellant that the Upper Tribunal erred in concluding that in the absence of any evidence confirming that German law recognises proxy marriages as valid the marriage would not be recognised in the United Kingdom. Ground 3 concerns the effect of Article 8. Here it is submitted that the Upper Tribunal erred in failing to grapple with Mr Awuku's Article 8 claim.
10. The position is, therefore, that the Secretary of State agrees with the appellant that the appeal should be allowed. However, rather than inviting the court to allow the appeal unopposed, the Secretary of State has asked that the matter be listed for hearing before us, as the Secretary of State invites us to overrule Kareem and the subsequent decisions in the Upper Tribunal which apply Kareem. We are asked to make a determination of the merits. That position is supported by Mr Malik and Mr Karin, who appear today on behalf of the appellant. They too ask the court to make a determination on the merits. Mr Malik, in the course of his submissions this morning, has emphasised the importance of this point and the fact that it arises frequently before the Tribunal. Practice Direction 52A provides in paragraph 6.4:

"The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matter relied on as justifying the order and be accompanied by a draft order."

11. In KW v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054, [2016] 1 WLR 198, the Master of the Rolls addressed the meaning of good and sufficient reason. At paragraph 27 he said this:

"Paragraph 6.4 does not require a decision on the merits in every case where there has been a decision on the merits in the lower court. There is no reason to restrict in this way the wide discretion conferred by paragraph 6.4 to allow an appeal by consent without a hearing followed by a decision on the merits. The words 'good and sufficient reasons' are very wide. Further, we reject the notion that the judge whose decision is under appeal has any entitlement to a decision on the merits. In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest."

12. There are situations in which this court has held that there are not good and sufficient reasons to depart from the usual practice of conducting a hearing and giving a judgment on the merits. One examination is Bokor-Ingram v Bokor-Ingram [2009] 2 FLR 922, a case in the field of family law where Thorpe LJ declined simply to allow the appeal by consent without a judgment on the merits, because the judgment below had already been reported and was causing, or was likely to cause, difficulty for specialist practitioners and judges in the field of ancillary relief. Another example is Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] RPC 26. There the Court of Appeal was asked to make a consent order for the restoration of a patent to the register without deciding the merits of the appeal and it declined to do so. It considered that a decision on the merits was needed.
13. In the present case, I consider that it would not be appropriate for the court simply to allow the appeal without hearing the case on the merits. First, we are here concerned with a point of law of some importance in immigration law. Secondly, the issue involves the correct implementation of an EU Directive and the obligations of the United Kingdom in EU law. Thirdly, the decision in Kareem is widely known and has been applied in other cases before the Upper Tribunal. It is also applied frequently, we understand, in the First-tier Tribunal. Simply to allow the appeal would introduce great uncertainty into this area of the law. Fourthly, notwithstanding the grounds advanced by the appellant and the Secretary of State, it cannot, in my present view, be said that Kareem is clearly wrongly decided. As a result, I have come to the conclusion that the public interest requires that this court should decide the point after hearing full argument on the merits.
14. I am concerned, however, that the court is placed in a position whereby it is asked to pronounce on an important issue raising questions of private international law, EU law and UK immigration law without the benefit of adversarial argument. If the matter goes ahead today, we will be addressed by counsel who, no doubt, mindful of their duty to the court, will do their best to put both sides of the case. However, all counsel in court today are here to advance one particular case in relation to Kareem. It seems to me that the appeal does give rise to matters which deserve to be investigated more fully than will be possible at a hearing where both parties now take a virtually identical view. In saying that, I make clear that I intend no disrespect to counsel before us today, who have assisted the court greatly. However, this is a case which will benefit from full adversarial argument.
15. In those circumstances, I consider that we should adjourn the appeal and invite Her Majesty's Attorney General to appoint an advocate to the court so that the matter can be fully argued on both sides. We will hear the parties in relation to any further directions that may be required at this stage.
16. LADY JUSTICE GLOSTER: I agree.
17. MR JUSTICE CRANSTON: I also agree.