Adetola, R (on the application of) v First-Tier Tribunal (Immigration and Asylum Chamber) & Anor [2010] EWHC 3197 (Admin)

[2010] EWHC 3197 (Admin)Case No CO/7714/2010
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Leeds Combined Court
The Courthouse
1 Oxford Row
Venue Leeds LS1 3BGDate 9 th December 2010
Before
HIS HONOUR JUDGE S P GRENFELL
Between
The Queen on the application ofClaimantJOSEPH ADEBIYI ADETOLAClaimantFIRST-TIER TRIBUNALDefendantsSECRETARY OF STATE FOR THE HOME DEPARTMENT (2)Defendant
Ms Shazia Khan (instructed by Immigration Advisory Service) for claimantMr Sam Karim (instructed by the Treasury Solicitor) for second defendantThe first defendant has taken no part in the proceedingsHearing Hearing date: 21 st October 2010
Judgment
[1]The claimant, a national of Nigeria and an asylum-seeker, challenges the decisions firstly of the First-Tier Tribunal (Immigration And Asylum Chamber) (“the Tribunal”), dated 20th May 2010, determining that the claimant had no in country right of appeal under regulation 26(3) Immigration (European Economic Area) Regulations 2006 on the grounds that:(i) the decision of the Tribunal to reject the marriage certificate as evidence of his marriage to his wife, a European Economic Area (‘EEA’) national, amounts to an error of law;(ii) the Tribunal not having made any findings that the marriage is merely one of convenience, should accept that there is a right of appeal under regulation 26(3);[2]The claim also challenged the decision of the Secretary of State, dated 2nd July 2010, to set removal directions for 15th July 2010, on the grounds that: (iii) the Secretary of State’s decision to set removal directions is unlawful because there should be an in country right of appeal; (iv) the Secretary of State’s approach to the second passport is irrational: not relying on it for the purposes of proof of identity and yet relying on it for the purpose of removing him from the UK.[3]It was made clear at the outset of this hearing that no claim against the Secretary of State was being pursued. Accordingly, I ordered that the claim against the Secretary of State be dismissed. Mr Karim, counsel for the Secretary of State, however, helpfully remained to assist the court.[4]I granted permission, having considered the papers on the 12th August 2010 and ordered an expedited hearing, the claimant having, at the time, been held in detention, although now bailed. I set out the following issues as I saw them: 1. whether the approach of the immigration judge was lawful in rejecting the claimant’s evidence of his marriage to an EEA national, further and necessarily by his approach not making any finding as to whether there was a marriage of convenience. 2. whether a marriage certificate certifying a marriage according to the rights of the Church of England should be accepted at face value. 3. whether a passport validly issued by the Nigerian Embassy should be accepted at face value. 4. whether the immigration judge, albeit that he was entitled to find the evidence called before him lacking in credibility, was correct in law in holding that the claimant had no right of appeal under Regulation 26(3) of the Immigration (EEA) Regulations 2006. 5. whether the second defendant’s decision to remove the claimant was lawful on the basis of there being an in country right of appeal against the decision to refuse to grant him a Residence Card.[5]The 5th issue is no longer relevant.[6]The Background[7]The background to this case is as follows.[8]The claimant claims to have arrived in the United Kingdom on the 23rd September 2006 (not accepted by the Secretary of State). On the 3rd April 2007 application for entry clearance was made in Lagos supported by passport A3341412A, the ‘1st passport’. This application was refused on the 25th April. In May 2007 the claimant claims to have met Iveta Dotkova, an EEA national, in the United Kingdom. On the 5th March 2009 he married her. There is a Church of England marriage certificate and there are photographs of the church ceremony. On the 15th April 2009 the claimant obtained passport A00766389, the ‘2nd passport’ and with it applied for a residence card. On the 24th November 2009 the claimant was sentenced to 9 months imprisonment for false identification offences. On the 22nd December 2009 he applied for asylum. On the 8th January 2010 the Secretary of State rejected his residence card application on the basis that there was no acceptable evidence of relationship. On the 20th May 2010 his appeal was dismissed by the Tribunal on a preliminary issue for want of jurisdiction. It is this decision that is the subject of this application for judicial review.[9]For the sake of completeness the asylum claim was refused and certified as ‘clearly unfounded’. This decision is not challenged.[10]The Legal Framework[11]An EEA decision is defined by Regulation 2 of the Immigration (European Economic Area) Regulations 2006 as “a decision … 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, document certifying permanent residence or permanent residence card; or “(c) removal from the United Kingdom;” and “ “spouse” does not include a party to a marriage of convenience;”

and “ “spouse” does not include a party to a marriage of convenience;”

[12]By Regulation 7 a person’s spouse is treated as his family member. Regulation 17 requires the Secretary of State to “issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—(a) a valid passport; and(b) proof that the applicant is such a family member.”[13]Regulation 26 provides the right of appeal to the Tribunal:
“Appeal rights “26.—(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision. “(2) … . “(3) If a person claims to be the family member or relative of an EEA national he may not appeal under these Regulations unless he produces— (a) an EEA family permit; or (b) other proof that he is related as claimed to an EEA national. “(6) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the Asylum and Immigration Tribunal.”
[14]L-K v K (No 3) [2007] 2 FLR 741 is authority for the proposition that the best evidence of a marriage ceremony whether civil or religious is the marriage certificate (paragraph 39 per Singer J). There is a clear distinction between a bogus marriage and a marriage of convenience. The former is an invalid marriage; the latter is a valid marriage in that the parties to it become husband and wife. In IS (marriages of convenience) Serbia [2008] UKAIT 00031 Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal, and Senior Immigration

Judge Clements at paragraph 26 of their judgment observed:

“The relationship which gives rise to any rights under EU law and the Regulations is the marriage, formerly valid, and entered into at a specific time and place. It is the ceremony and the act which count for these purposes and it is the ceremony and the act which, in the circumstances that give rise to it, amount to or do not amount to a "marriage of convenience".” adding “If the question had arisen on the facts of this case we should have held that the development of a real relationship after the marriage would not have assisted the appellant in his claim based on the marriage itself.”
[15]In R (Baiai and others) v Secretary of State for the Home Department [2006] EWHC 823 (Admin) Silber J at paragraph 79 drew attention to the reasons why Church of England ceremonies of marriage were exempted from the regime under section 19 of the Asylum and Immigration (Treatment of Claimants) Act 2004. These can be summarised as follows. This type of ceremony is unlikely to be used by those seeking to enter into a sham marriage, because the priest has the right to determine the time and date of the wedding; he interviews the couple together so that he can be satisfied of their intentions towards each other; generally it takes a number of months between them being seen by the priest and the wedding taking place. There are 3 essential and alternative preliminaries: the reading of banns; a special licence from the Archbishop; a common licence. Each requires a close examination of the intentions of the couple. I endorse and adopt this reasoning.[16]In my view, for these reasons immigration judges should be slow to find that a marriage solemnised in the Church of England is a sham marriage and should accept the certificate of such a marriage as proof. That is not to say that there should not be scrutiny of a certificate so that the immigration judge can be satisfied that it is a genuine document. Moreover, Church of England priests should be astute to question couples closely and, if necessary, intrusively where there might be a possibility of them entering a marriage of convenience. I can see no distinction between a marriage solemnised according to the rites of the Church of England and one solemnised according to the rites of other churches or religions, so long as there is undertaken a similar examination of the couple’s intentions by the person who is to officiate at the marriage ceremony.[17]So it is the marriage itself that determines whether the parties to it are husband and wife.[18]The issues in the present case are distilled to whether there was a valid ceremony of marriage between the claimant and an EEA national (there being no issue that Ms Dotkova is an EEA national) and whether the marriage certificate amounted to ‘other proof’. If those matters were established, then there was a right of appeal, unless the Tribunal had been satisfied that it had been a marriage of convenience.[19]Mr Karim has correctly conceded the Secretary of State’s abuse of process argument. Reconsideration was not an option for the claimant. This was a preliminary or procedural decision which the claimant is unable to challenge within the Upper Chamber (section 11(5) of the Tribunals, Courts and Enforcement Act 2007).[20]The immigration judge’s decision can be summarised as follows. He found the claimant and Ms Dotkova unsatisfactory witnesses and in some respects untruthful and gave clear reasons for so finding. The claimant’s credibility was clearly under scrutiny given his undisputed conviction for fraudulently using another person’s personal details, albeit in other circumstances. The immigration judge was sceptical that there had been no evidence of a woman’s presence at the claimant’s house. It was understandable that against this background the immigration judge was suspicious as to the validity of the marriage certificate, going on to hold that it was likely that false information was given to obtain the marriage certificate. In this respect he was highly sceptical as to provenance of the second passport which had been issued by the Nigerian authorities.[21]What it is clear the immigration judge did not find, however, was that this was a marriage of convenience. Moreover, it is significant that the Secretary of State was prepared to rely on the second passport for the purposes of making her removal directions. The decision letter of the 8th January 2010 refers to “your valid Nigerian passport.”[22]In my judgment the Church of England marriage certificate was sufficient evidence of the marriage. It was clear that, whatever the suspicions may have been as to the preliminaries to the marriage, a marriage according to the rites of the Church of England did take place on the date and at the place certified. That was sufficient evidence that the claimant and Ms Dotkova were legally married. The claimant provided a valid passport and marriage certificate. As a result, the decision that there was no right of appeal to the Tribunal was flawed and cannot stand. Further, it is doubtful whether, given that this was a Church of England marriage, there was sufficient basis for a finding that it was a marriage of convenience even if the immigration judge had considered such a possible finding. This despite his poor view of the couple’s general credibility.[23]The application for judicial review, therefore, succeeds. The following relief is granted: i) An order quashing the first defendant’s decision promulgated on the 20th May 2010; ii) A declaration that the claimant does have a right of appeal pursuant to Regulation 26(3); iii) The claim against the second defendant is dismissed and the second defendant is to pay the claimant’s costs up to the date of the cancellation of the removal directions; the claimant is to pay the second defendant’s costs thereafter; the claimant having the benefit of public funding, no steps (other than any assessment of costs) shall be taken until there has been a determination of the amount which it is reasonable for the claimant to pay pursuant to section 11 of the Access to Justice Act 1999, directions in respect of which stand adjourned generally to be restored on the written request of the Defendant; there is to be detailed assessment of the costs of the claimant.