Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 16

P338/15

OPINION OF LADY SCOTT

In the petition of

DURIM PANA (AP)

Petitioner;

for

Judicial Review of decisions of the Secretary of State for the Home Department to refuse an EEA residence card and to certify a human rights claim as clearly unfounded

Respondent:

Pursuer:  Devlin;  Drummond Miller LLP

Defender:  Webster;  Office of the Advocate General

19 January 2016

Background
[1]        The petitioner is a citizen of Albania.  He arrived in the United Kingdom clandestinely and was served with removal papers in 2011.  On 23 July 2013 he applied for a European (EEA) residence card which was refused because of non-payment of fees.  A further application for an EEA Residence card was refused on 3 October 2013 because no evidence of his EEA status was submitted by his sponsor.  

[2]        On 17 February 2014 the petitioner married a Lithuanian citizen.  He applied again for an EEA residence card on the basis of his right to reside as the spouse of an EEA national.  The respondent investigated the claim and interviewed the petitioner and his wife. On 24 February 2015 the respondent refused his application on the basis that the marriage was a marriage of convenience.  The decision letter (6/5 of process) from the respondent details the discrepancies and information obtained from which this conclusion was reached.  The petitioner has appealed against this decision, which appeal is ongoing.  The petitioner also applied for temporary admission and made a human rights claim under article 8 of the ECHR, which claim was refused and certified as manifestly unfounded by the respondent on 19 March 2015.

 

The issues
[3]        There were two issues raised

(1)   Whether the petitioner’s appeal against refusal of the EEA residence card afforded him a right to remain in the United Kingdom whilst that appeal was pending such that his removal would be unlawful.

(2)   Whether the respondent erred in law in certifying the petitioner’s claim under article 8 as clearly unfounded.

 

Fair notice
[4]        As the hearing progressed it became clear that the first of these issues was in fact the focus of the petitioner’s submissions and that there was no real dispute of the primary facts in respect of the decision to certify the claim as manifestly unfounded.  This position departs to a very significant degree from the averments in the petition.  Moreover the substance of the argument on the first issue was not readily apparent from the papers.  This is very unsatisfactory.  The purpose of the preparatory procedure - in particular for notes of argument and statements of issues to be produced - is to identify clearly the substance and scope of the arguments to be made and thereby minimise court time and in addition, importantly, to ensure fair notice is given to the respondent.  

[5]        I refused a motion from the respondent not to entertain the submissions made on the first issue, but only because it was clear to me the respondent was in fact able to address the submissions made.  Counsel must understand that all the issues need to be clearly identified during the procedure prior to a hearing, that these issues should reflect the terms of the petition and failure to do this is liable to result in a refusal to hear them.

 

The first issue
[6]        The petitioner submitted that his appeal against refusal of the EEA residence card afforded him a right to remain in the United Kingdom whilst that appeal was pending such that his removal would be unlawful.  This was based upon a proper reading of the Directive 2004/38AC of the European Parliament and of the Council 29 April 2004 (the Citizens Directive) which underpinned the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations).

“The Citizens Directive 2004/38/EC

 

The relevant provisions are as follows:

 

Article 2

 

For the purposes of this Directive:

 

‘2) Family member means:  (a) spouse’

 

Article 31

 

1.  The persons shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

 

2.  Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision actual; removal from the territory may not take place until such time as the decision on the interim order has been taken except:

 

– where the expulsion decision is based on a previous judicial decision;  or

 

– where the persons concerned have had previous access to judicial review;  or

 

– where the expulsion decision is based on imperative grounds of public security under Article 28(3).

 

3.  The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.

 

4.  Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

 

Article 35

 

‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse or rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.’

 

[7]        This Directive (the Citizens Directive) conferred important rights and secured protection of such rights through procedural safeguards, to all EU citizens and their family members.  The scheme of the Directive defines persons who qualify for rights under it on the basis of their status.  Under article 2(2) family members includes spouse.  The petitioner submitted that read in the context of the scheme of the Directive being based on status, this reference to spouse fell to be read as a matter of fact which was not qualified.  In particular it was not qualified on the basis of why parties were married.  This was in contrast to other provisions – such as for example at article 22(b) and article 35. 

[8]        Read in this way the petitioner qualifies under the Directive for the rights conferred by the Directive.  In particular under article 31 it was submitted this includes the right of access to judicial procedures, including at article 31(2) the right to apply for an interim order to suspend a decision under appeal. 

[9]        It was immediately conceded, as it had to be, that under article 35 of the Directive member states are given discretion to further restrict those who qualify, based on the grounds of domestic public policy. 

[10]      Having made that concession it was not clear to me that the petitioner appreciated the significant effect of the discretionary power given to the member states to restrict those who qualify for the rights and protections provided for under the Directive.

[11]      Article 35 not only makes this provision but in seeking to prevent abuse, specifically identifies the exception being made in respect of marriages of convenience.  The expression “marriage of convenience” has been construed as a marriage contracted for the sole purpose of enjoying the freedom of movement and residence under the Directive, that someone would not otherwise have (para 4.2 Commission of the European Communities COM 2009 313).  The effect of article 35 is to restrict the application of the rights conferred to those persons who qualify, not only under the Directive, but also under domestic provisions. 

 

Application of the 2006 Regulations
[12]      The petitioner then addressed the domestic position under the 2006 Regulations which were introduced to give effect to the Citizens Directive.  The relevant provisions are :

“The Immigration (European Economic Area) Regulations 2006

General interpretation

2. - (1) In these regulations –

…

EEA decision” means a decision under these Regulations that concerns a person’s –

 

(a)        entitlement to be admitted to the United Kingdom;

(b)        entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card;

(c)        removal from the United Kingdom;  or

(d)       the cancellation, pursuant to Regulation 20A of a person’s right to reside

 

…

 

—“spouse” does not include–

 

(a) a party to a marriage of convenience

Family member

7.—(1) Subject to paragraph (2), for the purposes of these Regulations the following

persons shall be treated as the family members of another person–

 

(a)        his spouse or his civil partner;

 

Effect of appeals to the First-tier Tribunal or Upper Tribunal

29.—(1) his Regulation applies to appeals under these Regulations made to the

First-tier Tribunal or Upper Tribunal.

 

(2) If a person in the United Kingdom appeals against an EEA decision to refuse to

admit him to the United Kingdom, any directions for his removal from the United Kingdom (other than a decision under regulation 19(1), (1A) or (1B)) previously given by virtue of the refusal cease to have effect, except in so far as they have already been carried out, and no directions may be so given while the appeal is pending.

 

(3) If a person in the United Kingdom appeals against an EEA decision to remove him from the United Kingdom (other than a decision under regulation 19(3)(b)) any directions given under section 10 of the 1999 Act or Schedule 3 to the 1971 Act for his removal from the United Kingdom are to have no effect, except in so far as they have already been carried out, while the appeal is pending.

 

[13]      Having been introduced to implement the Directive the 2006 Regulations require to be interpreted in accordance with the Directive.  The petitioner submitted that this meant that they should give effect to the rights under the Directive and take proper account of the procedural safeguards.  Viewed in this context the petitioner was entitled to the rights and protections under the Regulations, just as he was under the Directive.

[14]      In particular the restriction on the definition of spouse under Regulation 2(a) which excludes those in a sham marriage was in conflict with the Directive and ought not to be read to exclude the petitioner.  

[15]      In this way too, the protections under Regulation 29 apply and in particular Regulation 29(2) and 29(3) correspond to the Directive protection of suspension pending appeals.  Regulation 29 applies to persons who have appealed removal.  “Persons” means anyone who claims he is affected by an EEA decision.  

[16]      The point sought to be made, as far as I understood it, was that the petitioner qualified for protection under the Directive and therefore fell to be treated as a person under Regulation 29(3), albeit his appeal was against refusal of an EEA residence card.  This was because, firstly, the Regulations did not exclude bringing an appeal in the United Kingdom.  The appeal here was not one of those excluded under Regulation 27.  And secondly, on the basis that refusal of the appeal would lead to his removal under the Regulations.  It was submitted that this right of appeal “in country” and the consequential effect of removal were such that the “sensible” reading of the Regulations would be to apply a suspensive effect.  Otherwise the appeal would be robbed of any real meaning.  

[17]      Finally it was submitted given that the petitioner under the Directive qualified for such protection, the protections under Regulation 29(3) should be read to apply to him. 

[18]      It seems to me that the petitioner’s submissions on the application of these Regulations depart from their plain meaning and indeed stray into the fanciful.  Regulation 2 (a) could not be clearer.  Persons in a marriage of convenience do not qualify as spouses for the purposes of the Regulations.  The patent purpose of this Regulation was to prevent the abuse of parties to a marriage of convenience from taking advantage of the Directive.  There is no conflict with the Directive because Article 35(4) of the Directive specifically allows for such a restriction of safeguards in their domestic application.  

[19]      In any event the suspensive effect provided for under Regulation 29 does not refer to the category of appeal here.  Article 2(1) of the EEA Regulations specifies the different categories of what constitutes an EEA decision.  But Regulation 29 only provides for suspensive effect for the first and third categories, that is refusal of admission or removal.  Rather than this omission arising because it is not necessary, I am satisfied it is deliberate and carries through the intention that an appeal against refusal of a residence card does not have suspensive effect. 

[20]      Nor do I accept that because an appeal against an EEA decision to refuse a residence card is not listed as an appeal which requires to be made “out of country” under Regulation 26, this means that it somehow becomes a right of appeal to be exercised in country.  It merely means that this kind of appeal can be competently made in country.  There is no principle of law which confers the right to remain in a jurisdiction to pursue such an appeal. 

[21]      Further the decision to refuse an EEA card simply results in the applicant having no basis to remain.  Removal is a separate and further step.  I do not accept removal necessarily follows or can be conflated with, a decision to refuse a residence card.  Nor do I consider that removal renders this appeal redundant.

[22]      In the course of submissions the petitioner relied upon the decision in LO (Partner of EEA national) Nigeria [2009] UKAIT 00034 which held that there existed an in country right of appeal against a decision to refuse an EEA residence card.  The first difficulty with LO is that there is no mention of Regulation 29 of the 2006 Regulations and it does not fully address the issue.  In any event it has subsequently been departed from.  A similar argument in similar circumstances was rejected by the UKUT in R(on the application of Abdullah)[ 2009] EWHC 1771 (Admin) at [27].  This was subsequently expressly approved by the Upper Tribunal in R (on the application of Bilal Ahmed) v Secretary of State for the Home Department [2015] UKUT 00436 (IAC) 24 July 2015 at [25].  

[23]      I am satisfied that the approach taken to the interpretation of the Directive and the Regulations in Bilal Ahmed at paragraphs [27] to [30] is the correct one and answers what is essentially the same argument to that presented here.  In particular I agree with the Upper Tribunal’s conclusion that article 31 of the Directive has no application to a person who is appealing a decision that he is not a family member (or spouse) and it is of no relevance here.

[24]      In the course of argument the respondent relied on the materials put before the Upper Tribunal in Bilal Ahmed, (at [20] and [28]) namely, (a) a commentary COM (2001) 0527 (final), in respect of an earlier draft of the Directive, where the Commission commented that: 

“Giving appeals automatic suspensory effect would not be a suitable solution, since it would lay the arrangements open to abuse” and (b) the Recital (28) which specifically states that in order to guard against abuse, notably by marriages of convenience, member states would have the possibility of adopting “necessary measures”.  I agree with the respondent that this further underlines that the intention of the Directive was to allow for restriction of the rights conferred and the limitation of procedural safeguards, in order to prevent abuse.   

[25]      Indeed article 35 specifically recognised the potential of abuse arising in marriages of convenience, as presented here.  It follows that I consider the Regulations correctly transpose the relevant provisions of the Citizens Directive, including exempting from protection those who do not qualify based upon a marriage of convenience.

[26]      Accordingly I do not accept the submissions made that the Directive properly read provides protection to the petitioner whereby his residence card appeal has suspensive effect; nor do I accept that Regulation 29(3) of the 2006 Regulations, read in the context of the Directive, apply to the petitioner.  In so doing, I respectfully adopt the reasoning of the Upper Tribunal in Bilal Ahmed.  

 

The second issue
[27]      Initially the petitioner made submissions in accordance with the averments made in the petition to the effect that the decision to certify the claim was manifestly unfounded was based upon the facts arising from an interview of the petitioner and his spouse which were open to challenge.  However, as I have indicated, in reply the petitioner expressly conceded that there was no dispute taken with the primary facts.  

[28]      It was then submitted that the certification should be suspended if I accepted the argument on the first issue, namely that the appeal on the decision to refuse a residence card had a suspensive affect upon removal.  

[29]      This concession left the petitioner without any real challenge to the certification decision.  As the respondent pointed out, the facts relied upon to conclude the claim was unfounded were extensive and demonstrated significant discrepancies between the accounts given of the marriage (6/4 and 6/5 of process).  It had been open to the petitioner to make a fresh claim if there was any additional material to contradict the facts found.  It was clear that the Secretary of State had considered all the relevant matters both within the Immigration Rules and outwith the rules relating to the article 8 claim.  It was not suggested otherwise.  I am satisfied the challenge raised in the petition to the respondent’s certification is unsustainable and indeed was not sustained in the course of the hearing.

 

Decision
[30]      The decision of the respondent to certify the decision to refuse the petitioner leave to remain not being unlawful, irrational or unreasonable and the decision to refuse the petitioner an EEA residence card not being suspensive in effect, the order for reduction is refused.