England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/07/2017

Judge Grubb :

INTRODUCTION

1. The claimant is a Bolivian national who is 42 years old. He first arrived in the United Kingdom in June 2002 with leave as a visitor for a period of six months. Thereafter, he overstayed. On 11 December 2005, he was served with a decision to remove him having been arrested for the offence of assault occasioning actual bodily harm for which he was cautioned. On 13 December 2005, the claimant was removed to Bolivia.
2. In April 2007, the claimant re-entered the UK illegally using a false Bolivian passport. He has remained in the UK since that time.
3. The claimant claims to have met an Italian national, Bianchi Salguero, in April 2013 and they began a relationship in October 2013. The claimant claims that they moved in together in September 2014.
4. On 26 February 2015, the Lambeth Register Office sent a "Report of a Suspicious Marriage or Civil Partnership/Overstayer/Illegal Worker" in relation to a marriage due to take place between the claimant and Ms Salguero on 19 May 2015 (see Defendant's Supplementary Bundle ("DSB") at pages 82-85). As a consequence, immigration officers attended the Lambeth Register Office on 19 May 2015. Both the claimant and Ms Salguero were interviewed by Immigration Officers (Immigration Officer Gridler and Immigration Officer Mangan respectively). Following the interviews, the claimant was served with notice IS.126 (DSB at page 126) which stated that it had been concluded that:

"although there is a relationship going on it does not show that they have a relationship akin to marriage. [The claimant] will benefit from his union with [Ms Salguero] and even though this may not be a sham marriage it is definitely a marriage of convenience to gain Immigration advantage."

5. As a consequence, the claimant's marriage to Ms Salguero did not take place and the claimant was detained and served with appropriate notices for his removal.
6. On 21 May 2015, the Secretary of State set removal directions against the claimant for 5 June 2015.
7. On 22 May 2015, the claimant completed a "Statement of Additional Grounds" in which he made a claim under the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003 as amended) (the "EEA Regulations 2006") for an EEA residence card based on his relationship with Ms Salguero and he also relied upon Art 8 of the ECHR.
8. On 28 May 2015, the claimant's representatives sent the Secretary of State a pre-action letter.
9. On 3 June 2015, the claimant's EEA application was returned for non-payment of a fee which was corrected, on the same day, by the claimant.
10. On 4 June 2015, judicial review proceedings were lodged in the Upper Tribunal challenging the Secretary of State's decisions not to allow the claimant's marriage to go ahead; to detain the claimant and to set directions for his removal.
11. On that same day, the Upper Tribunal (UT Judge Craig) ordered a stay of the claimant's removal.
12. On 12 June 2015, the Secretary of State served a response to the pre-action protocol letter and, in addition, refused and certified the claimant's human rights claim as clearly unfounded under s.94 of the Nationality, Immigration and Asylum Act 2002 (the "NIA Act 2002").
13. On 24 June 2015, the claimant was released from detention.
14. On 20 July 2015, the Secretary of State filed summary grounds of defence.
15. On 21 August 2015, the Secretary of State refused the claimant's application for an EEA residence card based upon his relationship with Ms Salguero.
16. On 2 October 2015, the Upper Tribunal (UT Judge Warr) transferred current proceedings to the High Court as the claimant was challenging his detention.
17. On 2 November 2015, Timothy Brennan QC (sitting as a Deputy High Court Judge) refused permission on the papers.
18. On 11 November 2015, the claimant renewed his application for permission.
19. On 13 January 2016, the application was stayed by Philip Mott QC (sitting as a Deputy High Court Judge) pending the conclusion of the claimant's appeal to the First-tier Tribunal against the refusal of his EEA residence card.
20. On 1 November 2016, the First-tier Tribunal (FTT Judge Rothwell) allowed the claimant's appeal against the refusal to issue him with a residence card as an extended family of an EEA national under the EEA Regulations 2006 as she was satisfied that the relationship between the claimant and Ms Salguero was a "genuine and durable relationship".
21. On 17 January 2017, Michael Fordham QC (sitting as a Deputy High Court Judge) granted the claimant permission to bring these proceedings. In granting permission generally, the judge was particularly concerned that it was arguable that the decision to impede the claimant's marriage and thereafter to detain him had been premised on a mistaken understanding that there was a difference between a "sham marriage" and a "marriage of convenience" which were, in truth, synonymous in substance.

THE CLAIM

22. The claimant has, throughout these proceedings, sought to challenge the decision to prevent his marriage on 19 May 2015, his detention between 19 May and 24 June 2015 and the decision to remove him made on 21 May 2015. The way in which the claimant has, however, put his case has evolved over time.

1. Preventing the Claimant's Marriage

23. In relation to the prevention of his marriage, the Grounds for Judicial Review set out in the application rely upon his right to marry under Art 12 of the ECHR and, on the basis that he had a genuine and subsisting relationship with Ms Salguero, that there was no lawful justification or reason to prevent the marriage.
24. In the skeleton argument of the claimant's (then) Counsel submitted at the oral renewal, that claim is maintained. In the skeleton argument of Mr Jafar, who represented the claimant before me, the basis of the claim is again renewed although the emphasis is now on the point made by Michael Fordham QC in granting permission that the defendant has misconstrued the meaning of a "marriage of convenience" which, like a "sham marriage", cannot exist if there is a genuine relationship. Mr Jafar in his oral submissions maintained that basis for contending that the decision to prevent the claimant's marriage was unlawful. However, he also contended that the Immigration Officers (acting on behalf of the Secretary of State) had no lawful basis for concluding there was a "reasonable suspicion" that the marriage was a sham or one of convenience based upon the notice sent by the Lambeth Register Office under s.24 of the Immigration and Asylum Act 1999 ("the IA Act 1999").
25. Neither of these latter two points is made in the claimant's grounds, although the former was at the core of the decision to grant permission. The latter point was not raised until the hearing before me. It was not even raised in Mr Jafar's skeleton argument dated 4 May 2017 prepared for the hearing.

2. Detaining the Claimant between 19 May and 24 June 2015

26. In relation to the challenge to the claimant's detention between 19 May and 24 June 2015, the Grounds for Judicial Review in the claimant's application argue his detention was unlawful on the basis that he had a right of residence under EU law as the "family member" of an EEA national and further he had an outstanding application for a residence card under the EEA Regulations 2006.
27. The skeleton argument submitted by the claimant's (then) Counsel for the oral renewal hearing, contends that the claimant's detention was unlawful as he had a genuine relationship and given the fact that UT Judge Craig had granted a stay on removal on 4 June 2015 and that the claimant was an "extended family member" of an EEA national with an outstanding application for a residence card on that basis, his removal was not imminent and therefore, on Hardial Singh principles, was unreasonable and unlawful.
28. In his skeleton argument for the hearing before me, Mr Jafar also relied upon the claimant's right to reside in the UK as a family member of an EEA national and that, as such, he could not be removed other than in accordance with the "public policy" requirement in reg 19 of the EEA Regulations 2006. Further, reliance is placed upon the contention that the defendant misunderstood, and therefore misapplied, what amounts to a "marriage of convenience". Finally, in the circumstances, on Hardial Singh principles, the Secretary of State could not lawfully conclude that the claimant's removal was imminent and that therefore his detention was reasonable and lawful.
29. At the hearing, Mr Jafar placed no reliance upon the contention that the claimant's detention was unlawful as he had an EU right to reside in the UK or that his application and subsequent appeal in relation to an EEA residence card prevented the claimant's removal and therefore made his detention unreasonable and unlawful. Instead, he focused upon the Immigration Officer's decision on 19 May 2015 that the claimant's marriage was one of convenience. He contended that if, as the Immigration Officer had accepted, the claimant had a genuine relationship then that could not be a "marriage of convenience" and it was unlawful to detain him.
30. Further, Mr Jafar subjected the Immigration Officer's reasoning in the decision of 19 May 2015 that led to the conclusion that the marriage was one of convenience to detailed scrutiny based upon the record of the interviews with the claimant and Ms Salguero. Putting it shortly, he submitted that the interviews did not support the inconsistencies and observations relied upon by the Immigration Officer in form IS.126. In addition, the Immigration Officer had failed to take into account aspects of the evidence given by the claimant and Ms Salguero in their interviews which supported their claimed relationship. Mr Jafar contended that the Immigration Officer's decision was unlawful, irrational and unsustainable.
31. The nature of the latter challenge mounted by Mr Jafar at the hearing is simply not apparent in the grounds or in either of the skeleton arguments including the most recent dated 4 May 2017. At the hearing, I allowed Mr Jafar to develop the new, and previously unarticulated, challenge to the Immigration Officer's decision. It is not entirely satisfactory that the detail of the challenge arose at this very late stage. However, Ms Idelbi, who represented the Secretary of State, did not raise any objection to the claimant raising these arguments. Indeed, in her oral submissions she sought to counter in detail Mr Jafar's arguments.

3. The Removal Decision

32. The last decision challenged by the claimant is the decision to set removal directions on 21 May 2015. The basis for that challenge has, in essence, relied parasitically upon the grounds contending that the claimant's detention was unlawful. Mr Jafar did not focus upon a challenge to the removal direction in his skeleton argument and oral submissions.

A PRELIMINARY MATTER

33. At the beginning of the hearing, Ms Idelbi sought permission to file late detailed grounds of defence and a witness statement from Immigration Officer Mangan dated 9 May 2017. The application for both had been made on 9 May 2017. Mr Jafar objected. As I've made clear above, the claimant's case has evolved over time. The most recent skeleton argument is dated 4 May 2017 and raised new matters which were relied upon and explored at the hearing. The witness statement was prepared and had to be agreed albeit this not completed within the court's required time scale. No objection had been raised prior to the hearing to the defendant's application of 9 May 2017. I was satisfied that the claimant would have, through Mr Jafar, an adequate opportunity to deal with the matters raised, including arguing issues of weight to be given to the statement. In the circumstances, I granted permission to the claimant to rely upon the detailed grounds and to admit the witness statement of Immigration Officer Mangan.

DISCUSSION

34. I now turn to consider the claimant's case in relation to the three challenged decisions.

1. Preventing the Claimant's Marriage

35. Was it lawful for the defendant's officers to prevent the claimant's marriage on 19 May 2015?
36. The answer to that question has two elements: first, the legality of preventing the marriage by carrying out the interviews of the claimant and Ms Salguero on the basis of the report form from Lambeth Register Office made under s.24 of the IA Act 1999; and secondly, the legality of concluding the proposed marriage was a 'marriage of convenience' and preventing it thereafter.

(a)The Report Form

37. Mr Jafar submitted that the report sent by the Lambeth Register Office did not justify preventing the marriage. It did not give rise to a "reasonable suspicion" that a sham marriage was to take place. He submitted that the report form (DSB at pages 80-85) had not been completed so as to indicate that a sham marriage was suspected. He relied on the fact that none of the boxes had been ticked to indicate as such. The strike through, in various places in the document, of the alternative to marriage of a civil partnership was simply an automated deletion. All that the form contained of relevance was a statement in relation to the claimant that he had "No Visa". Mr Jafar pointed out that in the Immigration Officer's decision (IS.126, DSB at page 126) reference had been made to receipt of the report from Lambeth stating that the claimant had "no visa in his passport". It was only subsequently in the proceedings that the defendant had claimed, for example in the acknowledgement of service that there had been "receipt of intelligence that a possible sham marriage" was to take place between the claimant and Ms Salguero.
38. Ms Idelbi, on behalf of the Secretary of State submitted that the report from the Lambeth Register Office made under s.24 of the IA Act 1999 was sufficient to establish "reasonable grounds for suspecting that the proposed marriage … is a sham" and, given that the claimant is not an "exempt person" the decision to investigate and interview the claimant was lawful under s.48 of the Immigration Act 2014. She submitted that, whilst the form was not perfect, it was sufficient to satisfy the statutory requirement of a "reasonable suspicion" and had clearly been completed by the Lambeth Register Office as it contained details of the claimant and his partner including the statement that he had "No Visa".
39. The current scheme for reporting and investigating suspicious marriages is set out in the Home Office document, "Immigration Act 2014: Marriage and Civil Partnership Referral and Investigation Scheme: Statutory Guidance for Home Office Staff" (March 2015) a copy of which was helpfully provided to me. I do not need to set out the detail. Section 24 of the IA Act 1999 sets out the obligation in respect of referrals by the relevant authority for solemnizing a marriage to report to the Secretary of State a suspected "sham" marriage. Section 24A provides for equivalent provisions in respect of a civil partnership. Part 4 Of the Immigration Act 2014 deals with investigation by the Secretary of State following such a referral (ss.48-54 and 58-61).
40. It was common ground before me that the report from the Lambeth Register Office was made pursuant to s.24 of the IA Act 1999 (as amended by the Immigration Act 2014 in force from 2 March 2015). Section 24 imposes a duty upon the superintendent registrar to report to the Secretary of State his suspicion where he has "reasonable grounds for suspecting that [a] marriage will be a sham marriage". A sham marriage is defined in s.24(5) of the IA Act 1999 as follows:

"(5) A marriage (whether or not it is void) is a 'sham marriage' if –

(a) either, or both, of the parties to the marriage is not a relevant national,

(b) there is no genuine relationship between the parties to the marriage, and

(c) either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes –

(i) avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;

(ii) enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom."

41. I note, at this juncture, that the definition of "sham marriage" requires both that there be "no genuine relationship" between the parties and also that one or both of the parties entered into the marriage for the purpose of avoiding immigration law or the Immigration Rules and/or to obtain a right conferred by law or those Rules to reside in the UK.
42. In addition, one or both of the parties must not be a "relevant national", namely they must not be a British citizen or national or an EEA state or of Switzerland.
43. Part 4 of the Immigration Act 2014 deals with investigation of "sham marriages" by the Secretary of State. Under s.48 provision is made for the Secretary of State to investigate whether a proposed marriage is a sham marriage when the matter is referred to the Secretary of State by the superintendent registrar. So far as relevant, s.48 provides as follows:

"48. Decision whether to investigate

(1) This section applies if –

(a) a superintendent registrar refers a proposed marriage to the Secretary of State under section 28H of the Marriage Act 1949, or

(b) a registration authority refers a proposed civil partnership to the Secretary of State under section 12A of the Civil Partnership Act 2004.

(2) The Secretary of State must decide whether to investigate whether the proposed marriage or civil partnership is a sham.

(3) The Secretary of State may not decide to conduct such an investigation unless conditions A and B are met.

(4) Condition A is met if the Secretary of State is satisfied that –

(a) only one of the parties to the proposed marriage or civil partnership is an exempt person, or

(b) neither of the parties are exempt persons.

(5) Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.

(6) In making the decision whether to investigate, regard must be had to any guidance published by the Secretary of State for this purpose.

(7) In the case of a proposed marriage, the Secretary of State must give notice of the decision made under this section to –

(a) both of the parties to the proposed marriage, and

(b) the superintendent registrar who referred the proposed marriage to the Secretary of State.

(8) ….

(9) The Secretary of State must make the decision, and give the notice, required by this section within the relevant statutory period."

44. Section 49 defines "exempt persons" and sections 50 and 51 make provision in relation to the conduct of investigations.
45. As will be clear from s.48(3), the Secretary of State cannot decide to conduct an investigation unless condition A set out in s.48(4) and condition B set out in s.48(5) are both met.
46. In this case, condition A is clearly met as the claimant is not an exempt person within s.49. He is not a "relevant national" as defined in s.62(1) as he is not a British citizen, an EEA national or a citizen of Switzerland. The contrary was not suggested before me.
47. Condition B is the crucial one. It requires there to be "reasonable grounds for suspecting" the proposed marriage is a "sham".
48. I accept Ms Idelbi's submission that the Secretary of State had, on the basis of the s.40 report, "reasonable grounds for suspecting that the proposed marriage … [was] a sham" as required by s.48(5). That report clearly emanated from the Lambeth Register Office. I do not accept Mr Jafar's submission that the document has not been consciously completed by its writer. I have no doubt that it would have been more helpful if the writer had indicated, by ticking the appropriate boxes, the precise basis upon which the report was being made, in particular whether it was suspected that the marriage was arranged to evade statutory immigration controls, one of the parties to the marriage was an overstayer or one of the parties to the marriage was an illegal worker. The only indication given in the report is that the claimant had "No Visa". It may well be that the deletion, as Mr Jafar submitted, of the alternative to marriage of "civil partnership" was automated although, there is no basis in the evidence before me to conclude that was actually the case. It is equally likely that it was struck through by the person who prepared the form. What is, in my judgment, important when looking at the form is that those changes are made in the first of the three sections which specifically deals with a report of a suspicious sham marriage. The writer of the report has, in my view, clearly indicated that is the basis for the report albeit that the relevant tick box on the first page was not marked and none of the boxes were marked to provide detail of the reason for making the s.24 report. In my judgment, this report was sufficient to indicate to the Secretary of State that a sham marriage was suspected.
49. I do not accept Mr Jafar's submission that during the course of the proceedings the Secretary of State's position has changed and that only since the acknowledgement of service has it been alleged that the basis for the intervention in the claimant's marriage on 19 May 2015 was the receipt of intelligence about a possible sham marriage. He points to the witness statement of Immigration Officer Girdler dated 17 December 2015 (at pages 128-9 of the DSB).
50. The Immigration Officer's decision of 19 May 2015 (at page 126 of the DSB) specifically refers to receipt of a s.24 report and, although it also refers to the s.24 report stating that the claimant had no visa in his passport, there is nothing inconsistent in that and the later reference to the receipt of intelligence that a sham marriage was suspected. Whilst I note that Immigration Officer Mangan in her witness statement dated 9 May 2017 (at pages 78-80 of the DSB) refers to the visit to the Lambeth Register Office being undertaken as a result of a report under s.24 alleging that a "suspected marriage of convenience" was about to take place, this is, in my view, no more than potentially loose language given that the s.24 notice is specifically referenced and refers to a report of a "suspicious sham marriage". Of course, if Mr Jafar were right in his submission (which I will return to shortly) that there is no difference between a sham marriage and a marriage of convenience, then the difference in language would be of no importance whatsoever.
51. One final point arises in relation to the decision to prevent the claimant's marriage going ahead on 19 May 2015. Ms Idelbi drew my attention to Council Resolution 12337/27 which, she submitted, permitted states to check, in accordance with national law, whether a marriage is one of convenience before issuing an individual with a residence permit under EU law. Paragraph 3 of the Council Resolution provides as follows:

"Where there are factors which support suspicions for believing that a marriage is one of convenience, Member States shall issue a residence permit or an authority to reside to the third-country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses."

52. In my judgment, this also provides support for precisely the type of investigation which took place on 19 May 2015 and is consistent with such a process justifiably preventing a marriage with an EU national in order to investigate whether it is a marriage of convenience.
53. I did not understand Mr Jafar, in his oral submissions, to doubt that was the position, if indeed, there was a reasonable suspicion that the marriage was a sham or a marriage of convenience.
54. At least in the grounds, the claimant relied upon Art 12 of the ECHR and the right to marry. In addition, I was referred by both parties to the House of Lords decision in R (Baiai) v SSHD [2009] 1 AC 287. However, as was made clear in Baiai the Art 12 right does not entail a right to contract a marriage of convenience and permits, as a reasonable condition, an investigation whether that is the basis for the marriage. At [22], Lord Bingham of Cornhill set the position out as follows:

"22. … A national authority may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, prevent it. This is because article 12 exists to protect the right to enter into a genuine marriage, not to grant a right to secure an adventitious advantage by going through a form of marriage for ulterior reasons."

55. Consequently, both the investigation of the nature of the claimant's proposed marriage and its prevention if it was a sham or marriage of convenience does not breach Art 12 of the ECHR.

(b) A 'Marriage of Convenience'?

56. That then leads to Mr Jafar's principal submission that, even if the investigation and immediate prevention of the marriage was lawful, it was unlawful for the Immigration Officer to conclude that the claimant and Ms Salguero were proposing to enter into a marriage of convenience.
57. Mr Jafar made two submissions. First, the Immigration Officer had misunderstood what amounts to a "marriage of convenience". He submitted that a "marriage of convenience" is synonymous with a "sham marriage". Both require that there not be a genuine relationship between the parties. Here, having found that there was a relationship, albeit not one akin to marriage, it was inconsistent to state: "Even though this may not be a sham marriage it is definitely a marriage of convenience to gain Immigration advantage."
58. Secondly, Mr Jafar submitted that the reasoning leading the Immigration Officer to conclude that this was a marriage of convenience, based upon inconsistencies in, and observations about, what the claimant and Ms Salguero said in their respective interviews failed properly to reflect what had been said and also failed to take into account aspects of their interview that supported the claimant's case that his was a genuine marriage and not one of convenience.

The Definition

59. The first point relied upon by Mr Jafar was that identified as arguable by the judge in granting permission. I have already set out the statutory definition of a "sham marriage" in s.24(5) of the IA Act 1999 (see para [40] above). That requires, inter alia, that: (1) There is no genuine relationship between the parties to the marriage; and (2) either or both of the parties enter into the marriage for one or more of the purposes of (a) avoiding the effect of UK Immigration Law or Immigration Rules; and (b) enabling a party to the marriage to obtain a right conferred by UK Immigration Law to reside in the UK. Consequently, the absence of a "genuine relationship between the parties to the marriage" is a pre-requisite to the marriage being a "sham marriage" under s.24(5).
60. Section 24 does not provide any definition of a 'marriage of convenience'. That term is used in the EEA Regulations 2006, when dealing with rights of residence of spouses as "family members" of an EEA national. Excluded from the definition of "spouse" is "a party to a marriage of convenience" (see reg 2(1)). However, the EEA Regulations 2006 do not define what is a "marriage of convenience". However, the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (the "EEA Regulations 2016"), do provide a non-exclusive definition of "marriage of convenience" in reg 2(1) to include:

"A marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent –

(a) Immigration Rules applying to non-EEA nationals (such as an applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or

(b) Any other criteria that the party to the marriage of convenience will otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties; …"

61. The EEA Regulations 2016 came into force on 1 February 2017 and therefore had no application to the claimant. In any event, the definition is non-exclusive merely setting out a situation that is included within the concept of a "marriage of convenience". It does, however, look to the underlying purpose, in effect, to obtain an immigration advantage.
62. Although at the relevant time there existed no statutory definition of a "marriage of convenience", in Baiai, Lord Bingham (at [6]) approved the definition in Art 1 of Council Resolution 12337/97. That definition is as follows:

"A marriage concluded between a national of a member state or a third-country national legally resident in a member state and a third-country national, with the sole aim of circumventing the Rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a member state."

63. Mr Jafar contended that just as with a "sham marriage" there must not be a genuine relationship (at least of marriage), so for a marriage of convenience it was necessary for there not to be a genuine marriage. He submitted, relying upon the Immigration Appeal Tribunal's decision in Chang [2001] UKIAT 0012, that a marriage of convenience required deception or fraud as, in effect, to its genuineness and it was not sufficient that, if the marriage was genuine, that the parties would gain advantages, including an immigration advantage from it.
64. In my judgment, there is a difference in principle between a "sham marriage" and a "marriage of convenience". It is clear from the statutory definition that a sham marriage can only be established if there is no genuine relationship between the parties. Of course, a "marriage of convenience" may also entail a marriage which is not genuine. Indeed, many such marriages of convenience will reflect that fact. However, the hallmark of a marriage of convenience is one that has been entered into, in the context with which we are concerned, for the purpose of gaining an immigration advantage. That follows, in my judgment, from Lord Bingham's acceptance in Baiai of the definition of a "marriage of convenience" in Council Resolution 12337/97 which I set out earlier, namely that it is a marriage entered into "with the sole aim of circumventing the Rules on entry and residence".
65. In Rosa v SSHD [2016] EWCA Civ 14, the Court of Appeal approved and applied that definition (per Richards LJ at [10]). At [41], Richards LJ said this:

"It may be useful to contrast a marriage of convenience with a 'genuine' marriage (indeed, Underhill LJ treated them as antonyms at paragraph 6 of his judgment in Agho), but the focus in relation to a marriage of convenience should be on the intention of the parties at the time the marriage was entered into, whereas the question whether a marriage is "subsisting" looks to whether the marital relationship is a continuing one."

66. That was said in the context of an existing marriage but the point made by Richards LJ (with whom Floyd and Moore-Bick LJJ agreed) was to identify that the true focus in determining whether a marriage is one of convenience is to look to the intention of the parties in contracting the marriage.
67. Mr Jafar directed my attention to dicta in Chang at [43] and [48] suggesting that there was nothing wrong in marrying for an immigration advantage. Chang was a case where the IAT found that there were "no trace of the incidents of a relationship" between the parties and the IAT also found that it had been "entered into solely for immigration purposes" (see [49]). It was self-evidently a "marriage of convenience"; indeed it was a "sham marriage" as defined in what is now s.24(5) of the IA Act 1999. It is far from clear whether the IAT directed its mind to the distinction between "sham marriages" and "marriages of convenience". In any event, the comments have now to be seen in the light of what was said by the House of Lords and Court of Appeal in Baiai and Rosa.
68. Mr Jafar also relied upon two Home Office documents entitled "Sham Marriages and Civil Partnerships, Background Information and Proposed Referral and Investigation Scheme" (November 2013) and "Marriage Investigations" (July 2016). In both instances I was provided only the page relied upon. Mr Jafar submitted that these supported his contention that a "marriage of convenience" required there not to be a genuine relationship and so the Immigration Officer could not properly conclude the marriage was one of convenience given it was accepted there was a genuine relationship.
69. The former document states:

"A sham marriage, or marriage of convenience, or a sham civil partnership describes a marriage or civil partnership entered into for immigration advantage by two people who are not a genuine couple. A sham marriage or civil partnership is to be distinguished from a marriage or civil partnership entered into by a genuine couple where it may be convenient for immigration or other reasons for the couple to be married or civil partners."

70. Whilst the first sentence appears to conflate what is a "sham marriage" and a "marriage of convenience", the second sentence appears to draw a distinction, namely describing a "marriage of convenience" as a marriage entered into by a genuine couple for whom "it may be convenient for immigration or other reasons". It is not entirely clear what is the true meaning intended. The document is, I was told, no longer available on the web-site. That may well be because it is clearly, as its title states, concerned with the "proposed" scheme for referring and investigating sham marriages which has now been enacted and the guidance replaced by guidance about the actual scheme, to which I made reference earlier. The potential conflation I have identified in the document is not repeated in the statutory definition in s.24(5) which is limited to a "sham marriage".
71. The second Home Office document, dating from July 2016, also reflects a conflation of a "sham marriage" with a "marriage of convenience" both requiring that there not to be a genuine relationship (see page 10 of 27 of the document). However, again I note this pre-dates the current definition of a "sham marriage" (which makes no reference to a "marriage of convenience") in s.24(5) of the IA Act 1999. Indeed, it is worth noting that the terms of s.24(5) as originally enacted, in other words before the amendment by the Immigration Act 2014, defined a "sham marriage" without a requirement that it be not a genuine relationship but solely on the basis that it was entered into by the relevant person "for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or immigration rules."
72. I do not consider that the guidance assists in determining the meaning of a "marriage of convenience" given that the current statutory scheme only defines a "sham marriage". Neither document leads me to reach a view on what constitutes a "marriage of convenience" inconsistent with that set out in Baiai and Rosa.
73. In short, therefore, a "marriage of convenience" may exist despite the fact that there is a genuine relationship and in the absence of any deception or fraud as to its existence. The focus is upon the intention of one or more of the parties and, in the present context, whether the sole aim is to gain an immigration advantage. Consequently, I reject Mr Jafar's submission that the Immigration Officer misunderstood what amounts to a "marriage of convenience" when it was concluded that despite having a genuine relationship, albeit one not akin to marriage, being satisfied that it was proposed to enter that marriage for an immigration advantage was consistent with the legal definition of a "marriage of convenience".

The Decision

74. The Mr Jafar's second contention focused on the Immigration Officer's reasoning and assessment of what was said by the claimant and Ms Salguero in their respective interviews in concluding theirs was a marriage of convenience.
75. The basis for that decision is set out in the IS.126 form (at page 126 of DBS) which it is helpful to set out in full:

"I attended Lambeth Register Office to attend the wedding of Luis Alberto VACA MOLINA a Bolivian national born 12/05/1975 and Maria Del Pilar BIANCHI SALGUERO an Italian national born 01/06/1984. A section 24 report was received 26/02/2015 from Lambeth to say that VACA MOLINA had no visa in his passport. Checks on HO systems showed that the subject had been previously removed from the UK 13/12/2005 after being arrested for ABH. I conducted a full marriage interview with BIANCHI SALGUERO and IO Girdler conducted a full marriage interview with VACA MOLINA. The inconsistencies and observations are as follows:

BS stated that he worked in kitchens in various restaurants as and when they needed him. She did not know how much he was paid, what shifts he works or where he works.

VM stated that he worked as a cleaner at various homes as and when he was required. He gets paid cash in hand, sometimes he works one day a week sometimes 3 days.

BS stated that he got money from his brother who owed him money. VM did not mention any other income.

VM did not seem to know the details of how much rent and bills they paid or about how much the rent was in total and stated that BS dealt with it all.

BS did not know the full name of his witness. VM did not know the full name of her witness.

BS did not know his father's name. She only knew one of his brother's names. VM only knew one of her brother's names and got her sister's name wrong.

VM did not seem to know the details of how much rent and bills they paid or about how much the rent was in total and stated that BS dealt with it all.

VM did not seem to know the details of how much rent and bills they paid or about how much the rent was in total and stated that BS dealt with it all.

It is quite clear that although there is a relationship going on it does not show that they have a relationship akin to marriage. VACA MOLINA will benefit from his union with BIANCHI SALGUERO and even though this may not be a sham marriage it is definitely a marriage of convenience to gain Immigration advantage."

76. In addition, the Secretary of State relied upon a witness statement of Immigration Officer Mangan dated 9 May 2017. Mr Jafar invited me to give limited weight to what was said in the witness statement because, not only was it not a contemporaneous document in relation to the claimant's detention on 19 May 2015, but also it had been prepared with the specific aim of defending the claimant's judicial review claim. Mr Jafar pointed out that it was only in that statement that Immigration Officer Mangan referred to, as the basis for the decision that "they were rushing to get married". It was also referred to in the defendant's detailed grounds of defence and the coincidence of the two was important.
77. Whilst I accept that the witness statement is obviously not contemporaneous, having been drafted almost two years later, I see nothing sinister in the chronology and, as was explored in argument before me, that Immigration Officer Mangan's witness statement had to be "agreed" around the time that the detailed grounds were being prepared by counsel. That is, as Ms Idelbi submitted, common practise in litigation and reflects no more than the common practice of a party's legal representatives putting in proper form a statement of a witness which must then be agreed with that witness. For those reasons, but always bearing in mind the lack of contemporaneously, it is appropriate for me to take into account what is said in that statement.
78. Having set out the background, the relevant paragraphs in the witness statement are paras 8-10 as follows:

"8. I would like to clarify the key terms I used in the IS126 form [Exhibit CM3]. When I stated that there is a relationship, it means in this case in my opinion that they knew each other and knew things about each other but did not appear to have a relationship akin to marriage or know enough about each other as you would expect a couple about to get married should do. The IS126 shows that they did not know key issues regarding their domestic situation. They knew very little about each others family, routines, finance's and did not even know full names of their witnesses. Luis Alberto Vaca Molina was also working illegally in the UK.

9. A sham marriage can be hard to prove as couples rarely admit that money or remuneration of some sort has taken place. In this case there was no admittance. A marriage of convenience is I believe that although the couple know each other, the sole purpose of the marriage on 19/05/2015 was to facilitate Luis Alberto Vaca Molina's stay in the United Kingdom and therefore avoiding enforcement action as he was an immigration offender. In my opinion, Vaca Molina knew that if he married an EEA national that he could apply for leave in the UK under the EU Regulations and circumvent the Immigration Rules.

10. The fact that they knew so little about each other shows that they were rushing to get married. Therefore with my vast experience of marriages as part of the Croydon Marriage Team I believe that this marriage was one of convenience to facilitate Luis Alberto Vaca Molina's leave in the UK thus enabling him to work."

79. Mr Jafar subjected the eight bullet points in the IS.126 notice to detailed interrogation by reference to the evidence from the claimant and Ms Salguero in their respective interviews on 15 May 2015 (at pages 87-105 and pages 106-124 respectively of the DSB).

BS stated that he worked in kitchens in various restaurants as and when they needed him. She did not know how much he was paid, what shifts he works or where he works.

VM stated that he worked as a cleaner at various homes as and when he was required. He gets paid cash in hand, sometimes he works one day a week sometimes 3 days.

80. First, looking at the first and second bullet points in relation to the claimant's work, Mr Jafar submitted that there was no inconsistency between their evidence. The claimant had not said that he was a cleaner but rather that he worked for "cash in hand doing anything" (see questions 13 and 14 at page 88). Mr Jafar further submitted that Ms Salguero had given detailed evidence, wholly consistent with that, about the claimant's work in kitchens. Further, Mr Jafar submitted that their evidence about Ms Salguero's work was identical, namely that she worked at "Gaucho Restaurant" (see questions 7 and 13 respectively).
81. Ms Idelbi acknowledged that, contrary to what was said in bullet point two, that the claimant had not said that he worked as a cleaner. However, she submitted that underlying the inconsistency was the fact that the claimant had been unable to give details of his employment despite the fact that, on the face of it, his partner could.
82. I accept Ms Idelbi's submission that there was an inconsistency, in the form of a lack of detail, given by the claimant as to his work which contrasted with what was said by his partner. Even though the reference to the claimant saying he worked as a cleaner does not seem to have any foundation in the interview, and I was shown no other evidence in relation to it, the inability to give consistent detail about the claimant's work was relevant to the issue of whether their proposed marriage was one of convenience.

BS stated that he got money from his brother who owed him money. VM did not mention any other income.

83. Secondly, in relation to the third bullet point, Mr Jafar submitted that Ms Salguero had not stated that the claimant was given money from his brother who owed him money. He submitted that was not a proper understanding of her answer at question 6. Question 6 (page 106 of the DSB) asks "Is your partner employed? What did they do before they came to the UK?" The answer given in full is: "Sometimes he works for cash in hand in restaurants. Brothers [owe] him money".
84. I have placed the word in square brackets because, as I understood Mr Jafar's submission, he contends that the word written in the interview record is ambiguous as to whether it is "owe" or "give". It is not entirely clear from a reading of the handwritten transcript of the interview which is correct. However, if I had to choose I would say that it states "owe". In any event, the context of the answer is what money the claimant's partner says the claimant received. Whether it is because they "owe" the claimant money or simply because they "give" the claimant money, the context is that he receives money from them. The point made in bullet point three is that the claimant made no mention of receiving money from anyone else. While, as Mr Jafar submitted, he was not specifically asked about that he was asked detailed questions about his income at questions 13-17 of his interview (page 88 of the DSB). The bullet point does not, in my judgment, misrepresent the evidence of the claimant and Ms Salguero and is, albeit perhaps of not considerable weight, relevant to the issue of whether theirs is a marriage of convenience.

BS did not know the full name of his witness. VM did not know the full name of her witness.

85. Thirdly, in relation to bullet point five, Mr Jafar accepted that there was at least some confusion concerning the knowledge of the claimant and his partner of the names of their witnesses at questions 42 of their respective interviews (pages 93 and 112 of the DSB). He accepted that they did not know the surname of each other's witness. I see no basis on which it could be properly argued that, as part of all the evidence, that was not relevant to the Immigration Officer's task of determining whether the marriage was one of convenience.

BS did not know his father's name. She only knew one of his brother's names. VM only knew one of her brother's names and got her sister's name wrong.

86. Fourthly, in relation to bullet point six, Mr Jafar pointed out that when Ms Salguero stated that she did not know the name of the claimant's father (question 49 at page 113 of the DSB), it was clear that his father was deceased (question 50 of the claimant's interview at page 94 of the DSB). Mr Jafar pointed out that the claimant had correctly identified the names of his partner's parents (see questions 49 and 50 of the respective interviews at pages 94 and 113 of the DSB) and Ms Salguero knew the name of the claimant's mother (see questions 50 and 49 respectively of the claimant and Ms Salguero's interviews at pages 94 and 113 of the DSB). Further, Mr Jafar submitted that whilst Ms Salguero did only know the name of one of the claimant's four brothers and the claimant only knew the name of one of Ms Salguero's brothers and got her sister's name wrong (see questions 51 and 52 in their respective interview), this failed to take into account that they were each able to give details of their respective families.
87. Whilst I accept that some of the detail is correct, I anticipate that Mr Jafar's submission was based upon the claimant's answer at question 51 which purports to name his partner's brothers and sisters. In fact, the answer is clearly referring to his own brothers and sisters not his partners. His answer in relation to his partner's brothers and sisters is (albeit misplaced in the order of answers) at question 52 and bears the analysis set out in bullet point six. Likewise, in relation to Ms Salguero's answers, while she did know something of the claimant's siblings, she only knew one of his brothers' names.

VM did not seem to know the details of how much rent and bills they paid or about how much the rent was in total and stated that BS dealt with it all.

88. Fifthly, in relation to bullet point seven, Mr Jafar submitted that the assessment of the evidence was highly inaccurate. He acknowledged that at question 67 in the respective interviews (at pages 98 and 117 of the DSB) there was a discrepancy between what they said was paid as rent. On the face of it, the claimant said that they paid £300-£400 per month. By contrast Ms Salguero says the rent is £1,150 per month and that they pay £50 per month. That appears to be based on a payment by two lodgers of a total of £1,100. Although the claimant refers to the two lodgers as living in the flat (see question 72 of his interview at page 99 of the DSB), he makes no reference to the lodgers paying any money. Even if they did, unlike his partner, he considers that their own rent is £300-£400 a month whereas according to Ms Salguero it is £50 per month net. In my judgment, the evidence is entirely consistent with the point relied upon in bullet point six.

VM did not seem to know the details of how much rent and bills they paid or about how much the rent was in total and stated that BS dealt with it all.

89. Sixthly, in relation to bullet point eight, Mr Jafar acknowledged that there were differences in the stated routine first thing in the morning. However, he submitted that these differences were down to perceptions. I do not accept that submission. The claimant states (at question 98 at page 102 of the DSB) that he gets up first and makes the coffee. By contrast Ms Salguero says (at question 98 at page 121 of the DSB) that he sleeps a lot and that he "doesn't wake up with me". That is entirely consistent with what is relied upon in the eighth bullet point as an obvious inconsistency in how the claimant and Ms Salguero describe the routine of their early morning.

VM did not seem to know the details of how much rent and bills they paid or about how much the rent was in total and stated that BS dealt with it all.

90. Mr Jafar did not challenge what was relied upon in the fourth bullet point, namely the respective accounts of the choice and purchase of their wedding rings. There is, as Ms Idelbi submitted, a clear difference in what they say (at their respective questions 37 at pages 91 and 110 of the DSB). The claimant says that Ms Salguero chose the ring. Ms Salguero says they both did. The claimant says Ms Salguero paid for them and they cost £400 approximately for both. Ms Salguero says the claimant paid for them on his credit card and they cost £500 for both.
91. Mr Jafar, as I have already noted, placed some reliance upon what was not taken into account in the IS.126, namely when there was agreement or demonstrated knowledge by the claimant and Ms Salguero. He relied, for example, upon what they had said about their respective presents to each other for birthdays, at Christmas and Valentine's Day (see questions 61 and 62 of their respective interviews at pages 96-97 and 115-116 of the DSB).
92. There is no doubt that there were aspects of their respective evidence which supported the claimant's case. The Immigration Officer was, however, not required in the decision to set out each and every piece of evidence. Of course, the Immigration Officer was required to consider all the evidence and there is nothing that leads me to conclude that that was not done. What is set out in the IS.126 consists in the matters which led the Immigration Officer to reach the conclusion that she did.
93. It is important to notice precisely what the Immigration Officer decided. She did not decide that there was no relationship between the claimant and Ms Salguero. She accepted that there was "a relationship going on" but that it was not a relationship "akin to marriage". That is made plain by the conclusion in the IS.126 that their marriage was not a "sham marriage". Instead, the Immigration Officer decided that despite there being "a relationship" supported by the evidence, the evidence demonstrated that the purpose of the marriage was to gain an immigration advantage, namely it was (as I have already explained above) properly seen as a marriage of convenience.
94. The Immigration Officer properly addressed the issue of whether a marriage of convenience was established, based upon the purpose of the proposed marriage being to avoid immigration requirements. Both parties referred me to the relevant case law which clearly establishes that the burden of proof is upon the Secretary of State to establish that on a balance of probability (see, e.g. Rosa at [27] and [29]). Despite the criticism made by Mr Jafar of the Immigration Officer's reasoning, I am satisfied that they are of insufficient significance such that first, they do not establish that the decision that the claimant's proposed marriage was one of convenience was not properly open to the Immigration Officer as a matter of law; and secondly, I am satisfied that the claimant's marriage was one of convenience.
95. As a consequence, I reject the claimant's case that it was unlawful to prevent his marriage on the basis that it was a marriage of convenience.

2. The Detention between 19 May and 24 June 2015

96. Was the claimant's detention, therefore, between 19 May 2015 and 24 June 2015 unlawful?
97. The applicable law is well known (see R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 approved in R(I) v SSHD [2003] INLR 196 and Lumba v SSHD [2011] UKSC 12). It can be summarised as follows:

"(a) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose,

(b) the deportee may only be detained for a period that is reasonable in all the circumstances,

(c) if before the expiry of the reasonable period, it becomes apparent that the secretary of state will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention, and

(d) the Secretary of State should act with reasonable diligence and expedition to effect removal."

98. The underlying legal issue is whether the claimant's detention was to effect his removal and any continuing detention was in accordance with Hardial Singh principles.
99. For the reasons I have already given, it was lawful to conclude on 19 May 2015 that the claimant's proposed marriage was one of convenience. To that extent, therefore, I reject Mr Jafar's submission based upon the contrary contention that the claimant's detention was unlawful from the outset.
100. On 19 May 2015, the claimant was an illegal entrant. He admitted that in his interview (see witness statement of Immigration Officer Girdler at pages 128-129 of the DSB). He was, as a consequence, liable to removal under Schedule 2 to the Immigration Act 1971 and thus there was power to detain him pending those directions being made and pending his removal (see Schedule 2, para 16 to the Immigration Act 1971 and s.62(1) of the NIA Act 2002). The claimant had no outstanding applications for leave to remain in the UK; there was no judicial review claim and his EEA application, although sent on 22 May 2015, was not valid because he had not paid a fee. As a consequence, there was no impediment to his removal which was likely to be effected in a reasonable period.
101. Mr Jafar placed no reliance upon the contention in his skeleton argument that the claimant had an EU right to reside in the UK as a 'family member' of an EEA national and could not to be removed other than on public policy grounds. That no doubt was because the claimant – relying on his relationship as an unmarried partner - plainly did not fall within the definition of a 'family member' in reg 7 and could derive no EU rights on that basis.
102. On 4 June 2015, the present judicial review proceedings were issued. Mr Jafar relied upon the fact that on 5 June 2015 UT Judge Craig stayed the claimant's removal pending determination of permission on the papers. He submitted that there was, therefore, no reasonable prospect of removal and the claimant's detention thereafter was unlawful. I do not accept that argument. There did not have to be an "imminent" removal in prospect providing that the Secretary of State intended to remove the claimant and there was some prospect of removal within a reasonable time frame (see R(Khadir) v SSHD [2006] 1 AC 207). The application as originally pleaded in the ground was weak. The Art 12 ground had no substance and the basis for the unlawful detention was put solely on the ground that the claimant had a right of residence as a family member of an EU national which was plainly wrong. It was, in my judgment, entirely proper to conclude that, despite the judicial review application and the temporary stay on removal, there was a reasonable prospect of removing the claimant within a reasonable period of time.
103. On 11 June 2015, the claimant made a valid application for a residence card as an 'extended family member' under the EEA Regulations 2006 together with a human rights claim based upon Art 8. However, neither an outstanding application for a residence card as an 'extended family member' under the EEA Regulations 2006 nor any appeal against a refusal of such a card prevents removal as neither is suspensive (see R (Ahmed) v SSHD [2016] EWCA Civ 303). Indeed, although the claimant did appeal against the refusal to issue him with a residence card as an extended family member of an EEA national, there was, in fact, no right of appeal (see Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC)).
104. Whilst the claimant's outstanding Art 8 claim was suspensive, that claim was refused and certified as clearly unfounded (and thereby giving rise only to an out-of-country appeal) on 12 June 2015. The Art 8 claim, made initially in the Statement of Additional Grounds dated 22 May 2015, was, therefore, made three weeks before the decision. There is no requirement that an individual's removal must be imminent but rather that it must be contemplated within a reasonable period of time (see Khadir at [32]). Given the circumstances of the claimant, including his very poor immigration history, his Art 8 claim was undoubtedly weak as reflected in it being certified as clearly unfounded. Once certified, of course, any appeal could only be brought out of country. I am persuaded that when he made the Art 8 claim, it was proper to conclude that his removal was likely to be effected in a reasonable period of time and therefore to maintain his detention.
105. I was briefly taken to the required detention reviews (set out at pages 3-13 of the DSB). Mr Jafar placed some weight upon the reference in those documents to the claimant's marriage being a "sham marriage". That, of course, was not the true position being relied upon by the Immigration Officer and the Secretary of State. The true position was that there was "a relationship" but the proposed marriage was one of convenience because it was for the purpose of gaining an immigration advantage. The distinction is, however, wholly insignificant in the decisions evidenced in the detention reviews to continue the claimant's detention. The crucial issue was that his marriage was not one that would be recognised for immigration purposes and his immigration history as a previous overstayer and now an illegal entrant who accepted that he had entered the UK on a fake passport. Throughout the period of his detention, his removal was properly seen as likely to be effected in a reasonable period. Nothing in the detention reviews leads me to conclude that the claimant's detention was other than lawful.
106. For these reasons, therefore, the claimant's detention between 19 May 2015 and 22 June 2015 when he was released on temporary admission was lawful.
107. In the light of that, it is unnecessary to deal with the submissions made in relation to causation which only arises if a period of detention was unlawful but might, nevertheless, have likely been maintained on a different basis.

3. The Removal Directions

108. No separate arguments were addressed to me that the decision to set removal directions on 21 May 2015 for 5 June 2015 was unlawful. For the reasons I have already given, the claimant was lawfully detained until 24 June 2015 with a view to removal. The making of the removal directions was, given the conclusions I have reached above, clearly lawful. In any event, those removal directions were subsequently cancelled and so any claim challenging them is academic.

DECISION

109. For these reasons, this claim for judicial review fails and is, accordingly, dismissed.