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
		7 December 2016

MR JUSTICE CRANSTON:

Introduction

1. This is an appeal from the decision of Judge Freeman sitting in the Asylum and Immigration Chamber of the Upper Tribunal (UTIAC) made on 27 July 2014. In that decision he dismissed the appellant's judicial review claim on the basis that there was an alternative avenue for her to advance her case in the form of an appeal to the First-tier Tribunal. He also held that there should be no order as to costs. In effect the appellant contends that the judge was wrong in deciding not to grant a claim for an EEA residence card given the way her case had proceeded. The judge was also in error, it is said, in refusing to award her costs.

Background

2. The background is that the appellant is a Nigerian and arrived in the United Kingdom in August 2009 with entry clearance as a student, valid until 2 October 2010. On 2 October 2010 she made an application for further leave to remain as a student but that was refused with a right of appeal. The appellant did not appeal but remained in the United Kingdom unlawfully.
3. On 14 December 2011 the appellant applied for a residence card on the basis of her proxy marriage to her sponsor, an EEA Swedish national of Nigerian heritage. The marriage was said to have taken place on 3 February 2010 according to Yoruba custom and tradition. On 17 April 2012 the Secretary of State refused the application under regulation 7 of the Immigration (European Economic Area) Regulations 2006, 2006 SI No 1003 as amended ("the 2006 Regulations"). She concluded that the proxy marriage was not valid under the Nigerian Marriage Act as neither the appellant nor the sponsor had been present at the marriage ceremony or resident in Nigeria before the wedding.
4. On 29 August 2012 the appellant made a further application for a residence card. This time she relied on a marriage certificate giving the date of the registration of the marriage as 3 February 2011. The appellant and her sponsor maintained that they had been living together for more than two years and provided documentary evidence including a tenancy agreement, a flat-share agreement, wage slips for the sponsor, wage slips for the appellant and bank statements. The sponsor's address in the documents was 18 Sulkin House. The appellant's documents listed her address as 31 Layfield Road. The only document with both living at the same address was the tenancy agreement for 31 Layfield Road.
5. On 9 January 2013 the Secretary of State refused the application with an in-country right of appeal. In the refusal the Secretary of State stated that proxy marriages were no longer accepted in Nigeria whether it was a marriage under the Nigerian Marriage Act or a customary marriage. The Secretary of State also said that apart from the tenancy agreement there was no evidence that the appellant was in a durable relationship with the sponsor. Documents such as the tenancy agreement were easy to obtain. The letter concluded that the appellant was unlawfully in the country and should leave.

First-tier Tribunal decision

6. The appellant appealed to the First-tier Tribunal. The hearing was on 9 May 2013. The appellant did not appear and was not represented. However, there was a statement from the appellant signed and dated 7 May 2013 in which she described her marriage and rejected the Secretary of State's analysis of it and the factual position the Secretary of State had adopted. It said:

"The decision maker also sought to justify its decision by suggesting that my address was different from my husband's. This reason is misconceived and is attributed to the decision-maker's omission of the contents of our tenancy agreement."

7. That statement did not record, as it should have, that the appellant and the sponsor had separated some months earlier in March of 2013.
8. First-tier Tribunal Judge Metzer dismissed the appeal on 21 May 2013. He said that the Country Information and Guidance Report ("CIG") for Nigeria for 2011 accepted that proxy marriages were recognised under Nigerian customary law. However, the 2012 version, relying on US State Department information, stated that technically both parties had to be physically present at the same location to sign certain documents, and that proxy marriages had ceased to be valid but still occurred. Judge Metzer said this:

"Therefore, although there is some lack of clarity, accepted by Mr Marsh on behalf of the Secretary of State, the most recent information suggests that proxy marriages no longer are valid. Although the appellant suggests in her witness statement that it is for the respondent to establish that they are not valid, that as a matter of burden and standard of proof is incorrect. The burden is upon the appellant to show that proxy marriages are still valid and recognised by the Nigerian government."

9. The judge then said this on the factual basis of the appeal:

"The appellant chose not to attend the hearing to resolve the issues concerning durability of the relationship, in particular the difficulties in relation to two different addresses as evidenced in the wage slips and bank statements. Although the relationship may well be a close one, the appellant and the sponsor did not attend to give further evidence in relation to either the present status of proxy marriages or to the durability of their relationship."

10. There was then an application for permission to appeal to the Upper Tribunal on 12 June 2013. That was refused at the first level. The appellant did not renew her application to appeal to the Upper Tribunal as she was entitled to do. She did not leave the United Kingdom but remained unlawfully as an overstayer.
11. Unsurprisingly the Secretary of State made a decision on 29 September 2013 to remove the appellant from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act"). That decision carried an out-of-country right of appeal. The appellant's solicitor sent letters to the Secretary of State over the next couple of weeks on her behalf. The appellant was detained with a view to her removal from the UK.

The judicial review

12. The appellant issued judicial review proceedings in the Administrative Court on 14 October 2013, seeking to challenge the decision the Secretary of State had taken under section 10 of the 1999 Act. The grounds drafted by her current solicitors opened with a challenge to the Secretary of State's decision not to provide an in-country right of appeal. That point was hopeless since this court has consistently said that an out-of-country right of appeal is adequate unless the case is exceptional; see RK (Nepal) v Secretary of State for the Home Department [2009] EWCA Civ 359 and R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744. This was far from being an exceptional case.
13. The first of the judicial review grounds raised the issue of the marriage. That had been dealt with by the First-tier Tribunal and had not been pursued before the Upper Tribunal. It was simply not appropriate to raise it in a judicial review application at that point. Nevertheless, those drafting the grounds took issue with Judge Metzer's decision on both the law and the facts. As regards the law, the grounds said that the CIG for Nigeria for 2013 "clearly states that the US report was wrong"; as to the facts, it was said, the judgment contained "a catalogue of mistakes". The second of the grounds addressed Article 8 of the European Convention on Human Rights ("the Convention" or "ECHR"), in particular because the appellant had a brother and sister-in-law in Britain. Article 8 had not been mentioned previously. It was a point totally without merit. No better was the third ground, that the Secretary of State had failed to apply her own policy on married persons. Since the Secretary of State had never accepted that the appellant was properly married, it is difficult to see how the policy applied.
14. On 22 October 2013 the Secretary of State wrote rejecting the appellant's Article 8 grounds. As regards the EEA marriage claim, it reminded the appellant that this had been fully considered, i.e. by the Tribunal. The letter also recorded the following:

"On 29 September 2013, when your client was detained, she claimed to be in a relationship with a Nigerian/Swedish dual national. She claimed that he was in Sweden on business at the time. However, she failed to provide any evidence to substantiate or support her claim to have a partner in the UK. The detaining officer further noted that your client's room and belongings showed no real evidence of her claimed partner residing at her address and she was unable to confirm her partner's job or provide documentation confirming that he resided with her."

15. Of course the appellant now accepts that the relationship had broken down six months previously, so it was not surprising that there was no evidence of the sponsor at her residence.
16. The Secretary of State filed an acknowledgement of service and summary grounds of defence on 18 December 2013. In them she rejected ground one, in particular pointing out that the 2013 CIG for Nigeria had not been published at the time of the Secretary of State's decision and that, in any event, it did not say that the US report was wrong; rather, it had referred to the inconsistent information from sources, including the US report. The grounds also rejected Article 8, which had only just been raised and was unsupported by evidence, and the marriage policy ground, which assumed that the appellant was validly married.
17. By this time most judicial review matters in immigration and asylum had been transferred to the Upper Tribunal (Immigration and Asylum Chamber). Consequently the appellant's application for permission to apply for judicial review was not heard by a High Court judge but came on the papers before Judge O'Connor in the Upper Tribunal. He refused permission on 11 March 2014. Ground one, he said, had been dealt with by the First-tier Tribunal and was not arguable; the Article 8 point was new and, given the lack of detail, unarguable; and the appellant had an adequate, alternative remedy by means of an out-of-country appeal.
18. The application for permission was renewed at an oral hearing on 1 July 2014. Upper Tribunal Judge Gleeson granted permission. Her order was sent to the parties on 16 July 2014. As has been the practice with the Upper Tribunal, the judge gave detailed reasons for granting permission. She noted that grounds two and three were no longer pursued. As to ground one, the judge said that the 2014 CIG for Nigeria had referred to correspondence the UK Border Agency had received from the Foreign and Commonwealth Office in February 2013, which stated that proxy marriage is recognised in customary law in Nigeria. The Secretary of State had been in breach of her duty of candour, the judge said, in not putting that before the First-tier Tribunal when it considered the appellant's case in May 2013. The judge also referred to the leading decision of the Upper Tribunal on proxy marriages, Kareem (Proxy marriages -- EU law) [2014] UKUT 24 (IAC), published on 23 January 2014. That establishes that whether a marriage has been contracted between an applicant and a qualified person turns on the law of the nation state of the EEA-qualified person, but in this case there was nothing before the Tribunal as to the Swedish law on proxy marriages.
19. Judge Gleeson's order included case management directions under which the Secretary of State was directed to file within 14 days "detailed grounds for continuing to contest this application and any written evidence upon which she will rely at the hearing, including in particular evidence of Swedish law as to proxy marriages between Swedish and Nigerian citizens". There was a further direction that "If no such grounds or evidence are received, the respondent will be taken to have accepted that the decision to remove the appellant to Nigeria on the basis that the First-tier Tribunal's determination of May 2013 was unlawful". I find the judge's decision puzzling but there is no need to say more since it is now water under the bridge.
20. There was a signed consent order on 29 July 2014 approved by the Upper Tribunal permitting the Secretary of State to file her detailed grounds of defence and any evidence by 27 August 2014.

The Secretary of State's new decision

21. Given that permission had been granted in the judicial review, the Secretary of State did what she usually does. She abandoned her decision to remove the appellant and examined afresh the appellant's application of 29 August 2012. She did that in a new decision issued on 28 August 2014. That new decision contained an in-country right of appeal if the appellant wished to take advantage of it.
22. The decision refused the appellant's application for a residence card with reference to regulation 7 of the 2006 Regulations. After a lengthy review of the legal position in Nigeria regarding proxy marriages, the Secretary of State's decision explained that she was not satisfied that the proxy marriage had been properly executed so as to satisfy the requirements of Nigerian law, the country in which it took place, or that it had been issued by a competent authority in Nigeria. As to the 2012 application, the decision noted that there was no evidence provided as to why a fraudulently obtained Nigerian civil marriage ordinance certificate had been provided with the first, the December 2011 application.
23. Given that the appellant now had in in-country right of appeal where all her points on the alleged marriage could be re-litigated, the Secretary of State adopted her standard practice on 1 September 2014 of inviting the appellant to withdraw the judicial review proceedings.
24. The following day the appellant's lawyers rejected the Secretary of State's invitation. Their letter was both tendentious and inaccurate. It stated that the Secretary of State had "failed to produce the evidence specifically demanded by the Tribunal with reference to the Swedish law as to proxy marriages between Swedish and Nigerian citizens". There had been no such demand by the Tribunal. The letter then stated that the right of appeal now offered by the Secretary of State was not in accordance with the order of the Tribunal. There was no such order of the Tribunal. The letter also stated that it was unfair after the passage of time and the change of circumstances for the case to be decided in the light of facts which were misleading as put forward. The letter failed to explain which facts the Secretary of State had advanced were misleading.
25. Indeed the solicitor's letter failed to explain the fraudulent documentation which the appellant was said to have advanced in December 2011; the omission in the appellant's May 2013 statement that the relationship had broken down; or the statement the appellant made at her flat when she was detained in October 2013 that the sponsor was temporarily away on business, whereas the relationship had broken down on her own admission some six months previously. The appellant, the letter also asserted, did not know the case against her. It was absolutely clear what that case was.

The decision appealed

26. The appellant's judicial review claim came before Upper Tribunal Judge Freeman on 14 November 2015. He dismissed the claim. He said that two Upper Tribunal decisions in recent times had clarified the law on proxy marriages, Kareem and TA and Others (Kareem explained) Ghana [2014] UKUT 00316 (14 July 2014). The judge said that Kareem established that with proxy marriages and EEA rights the crucial question was whether the country of an EEA national recognised such marriages. The judge quoted from the official headnote to Kareem that a lack of evidence of relevant foreign law will normally mean that the party with the burden of proving the marriage will fail. That party is of course an applicant. As regards the decision to remove and the refusal to issue a residence card in the appellant's case, the judge said this:

"What this applicant and anyone in her situation was entitled to was a fair decision according to the law on her application. This the applicant was offered in a decision of 28 August and the correspondence which followed. While the cause which the application had taken so far certainly entitled her and her solicitors to a few days for reflection, the barest familiarity with the law as declared by the Tribunal should have led them to accept the offer made on 3 September and withdraw it. The decision provided a clear alternative remedy by which the application could be reconsidered on appeal by a First-tier Tribunal judge with the full facts and law before them. Any argument on costs at that stage could have been put before the Tribunal to resolve if necessary, and so the application is dismissed."

27. As to costs, there were further written representations after the hearing. After receiving them the judge made a decision that there should be no order as to costs. The case management orders of Judge Gleeson may have been agreed on a wrong basis, said the judge, but the Secretary of State should not have ignored them. That was a point in favour of the appellant. On the other hand, the judge explained:

"I do not think that the applicant's solicitors were entitled simply to rest their position on the erroneous view of the burden of proof contained in the consent order. They had been under a duty of candour towards the Tribunal and in particular the permission judge as well as the Treasury Solicitors to make them all aware of the true legal position set out in Kareem …"

28. The appellant filed the appellant's notice with this court on 12 December 2014. The grounds essentially rest on Judge Freeman's failure to give effect to Judge Gleeson's case management order. The consequences, said the grounds, were that the Secretary of State was deemed to accept that her decision to remove the appellant was unlawful. It was also said that Judge Freeman erred on costs since he did not have regard to M v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607. The grounds did not address the alternative remedy issue in any detail.
29. On 20 March 2015 Aikens LJ refused permission to appeal on the papers but when renewed before Vos LJ (as he then was) permission was granted.

The claimant's case

30. Before us Mr Emezie has advanced the appellant's case on the grounds that Judge Freeman was wrong to dismiss the matter as being academic. The appellant had an advantage from Judge Gleeson's case management order of which he had been deprived. In particular that case management order had stated that the Secretary of State should produce evidence of the Swedish law on proxy marriages to a Nigerian and, if not, she was deemed to accept that the decision to remove the appellant was unlawful. The judge was entitled to give those directions. The burden is generally on a person to prove her case but this was one of those exceptional cases, submitted Mr Emezie, where justice had required that the burden be placed on the Secretary of State. That was what Judge Gleeson had provided in her order. In any event the Secretary of State had not, Mr Emezie submitted, discharged the burden by establishing that the marriage was invalid in Nigerian law. Mr Emezie also made criticism of the Secretary of State having turned up at the hearing without having provided her grounds of opposition.
31. As to costs, again in Mr Emezie's submission Judge Freeman was incorrect in deciding that the matter was academic. Mr Emezie contended that the appellant had succeeded in obtaining an in-country right of appeal as a result of the Secretary of State considering the case afresh, and he cited the M v Croydon LBC decision. Mr Emezie submitted that the judge was wrong not to have awarded the appellant costs, at least up to the date of the Secretary of State's decision.

Discussion

32. In my view Judge Freeman was undoubtedly correct in dismissing the appellant's application for judicial review on the basis that she had an alternative remedy. The Secretary of State had made a fresh decision dated 27 August 2014 and that carried with it an in-country right of appeal. It is hornbook law that as a general rule applicants for judicial review must exhaust alternative remedies (see Sir Clive Lewis, Judicial Remedies and Public Law, 5^th Edition 2015, at 430ff). If the appellant had pursued the avenue of an in-country right of appeal, she could have raised all the points that she sought to adduce in the judicial review. The Tribunal would have been able to hear oral evidence and decide the issues of fact and law as to proxy marriage and her entitlement under the 2006 Regulations. This was a superior remedy to judicial review in the sense that her case would have been decided on the merits.
33. In my view Mr Emezie has identified no satisfactory reason for not pursuing the appellant's case by way of statutory appeal. Rather, he has persisted with this judicial review on the appellant's behalf on the mistaken assumption that somehow Judge Gleeson's case management directions had binding force and that because the Secretary of State did not file evidence within the extended time limit and no application for relief from sanctions was made, that was the end of the matter.
34. That is entirely the wrong approach. Those case management directions could not oblige Judge Freeman or any other judge hearing the judicial review to grant the appellant's application and quash the Secretary of State's decision on the basis that she was to be taken as having accepted that the decision to remove the appellant was unlawful. It is also hornbook law that remedies in judicial review are discretionary and it is for the court at the substantive hearing to decide how that discretion should be exercised. It is open to a court to withhold relief even if a decision under challenge is unlawful. Here, there was an alternative remedy, one which could determine the issue on the merits, and that was a very good reason for refusing to grant judicial review.
35. Further, the challenge before Judge Freeman in November 2014 was to the Secretary of State's decision on 29 September 2013 to take steps to remove the appellant from the United Kingdom under section 10 of the 1999 Act. By the time the case came before the judge, the Secretary of State had taken her fresh decision of 28 August 2014. There was in those circumstances no practical reason for Judge Freeman to engage with the challenge to the decision of 29 September 2013. To put it another way, the matter had become academic by then and judicial review was no longer appropriate. Indeed, since the decision of 29 September 2013 was a decision to remove the appellant from the United Kingdom under section 10 of the 1999 Act, it was an immigration decision under section 82(2)(g) of the Nationality, Immigration and Asylum Act of 2002, attracting a right of appeal under section 82(1) of that Act. The appellant was told that at the time. Albeit that it was an out-of-country right of appeal judicial review was, on the authorities already cited, unavailable.
36. Inasmuch as the appellant was seeking to rerun before Judge Freeman her case about the earlier decision of the Secretary of State on the proxy marriage, that was quite wrong, indeed an abuse of process. The appellant's case had already been heard before the First-tier Tribunal and had failed. It was not open to her to seek judicial review of a decision in respect of which she had exhausted her statutory rights of appeal. It is entirely unsurprising that Judge Freeman observed that the barest familiarity with the law would have led the appellant to withdraw the judicial review and pursue an appeal before the First-tier Tribunal. In my view there was no error in his decision to dismiss the appellant's claim for judicial review.
37. As to costs, the appellant's case is again based on a fundamental misunderstanding. Costs before Judge Freeman had nothing to do with her being successful under the principle established in M v Croydon and more recently in R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853. This was not a case which had been settled by consent. The appellant did not obtain the remedy sought. Inasmuch as the Secretary of State's decision gave rise to an in-country right of appeal, that was not a remedy the appellant wanted. Indeed, the appellant has subsequently treated it with disdain. The plain fact is that the appellant cannot be said to have been even partly successful. She was unsuccessful. Ordinarily that would have meant that the appellant should have had to pay the Secretary of State's costs. In fact Judge Freeman made no order as to costs on a pragmatic basis, to avoid further costs. He had a wide discretion to do so (HE v Secretary of State for the Home Department [2013] EWCA Civ 1846). He was obviously right not to award the appellant any of her claim for costs.
38. For all these reasons I would dismiss the appeal and order the appellant to pay the Secretary of State's costs.

LADY JUSTICE GLOSTER:

39. I agree.

LORD JUSTICE LLOYD JONES:

40. I also agree.

Order: Appeal dismissed