Muhammad Saleem Rajput v Secretary of State for the Home Department [2015] EWHC 2051 (Admin)

[2015] EWHC 2051 (Admin)Case No CO/1437/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 July 2015
Before
JUDGE ELIZABETH COOKE(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Between
Muhammad Saleem RajputClaimantSecretary of State for the Home DepartmentDefendant
Mr Christopher Pulman (instructed by Nasim & Co Solicitors) for ClaimantMr Ivan Hare (instructed by Government Legal Department) for DefendantHearing Hearing date: 9 July 2015
Approved Judgment
[1]This is a renewed application for judicial review brought by Muhammad Saleem Rajput, following his removal from the United Kingdom in February 2015. He seeks declarations that his detention and removal were unlawful, injunctions securing his return here, and damages for unlawful detention and for breach of his rights under Articles 5 and 8 of the European Convention on Human Rights.[2]The application was listed for a 30 minute hearing, as is usual for renewed applications, on 9 July 2015. In the event the hearing continued for some two hours. I am grateful to Mr Pulman for the Claimant and to Mr Hare for the Defendant for their helpful explanations. In deference to Mr Pulman’s arguments on behalf of the Claimant I reserved judgment. I shall endeavour in what follows to deal properly with all that has been said on the Claimant’s behalf, but I stress that despite the plethora of arguments put forward on the Claimant’s behalf, and despite the consequent length of this judgment, he clearly has no arguable case to challenge the Secretary of State’s decision once the relevant legal provisions are properly understood.[3]I shall begin by setting out the facts, then the Claimant’s eight grounds for seeking judicial review, then the relevant law. Then I go through the grounds in turn.

The facts

[4]Here are the facts as I understand them; I believe they are not in dispute and they are relatively straightforward.[5]The Claimant entered the UK on 24 September 2011 as a Tier 4 student. His leave to remain was extended in February 2012, but a further application to extend was refused on 2 June 2014. Accordingly on the expiry of his leave he became an overstayer. He was issued with forms IS151A and IS151A, part 2 notifying him of liability for removal and that a decision had been taken to remove him, under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”):
“(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom).”
[6]On 25 June 2014 the Claimant submitted a human rights claim, which was refused and was certified as being clearly unfounded on 16 October 2014; the effect of that certification is that there is no appeal against the refusal of the human rights claim (NIAA 2002 section 94).[7]On 24 September 2014 the Claimant applied for a residence card following his marriage to Ms Rani Somoro, claiming that he was entitled to stay in the UK as the spouse of an EEA national. A residence card does not confer a right to reside; rather, it recognises a right, and the Claimant says that he has a right to reside in the UK as the spouse of an EEA national. The Claimant says that Ms Somoro is in the UK exercising her treaty rights to be here, but the Defendant disputes this. On 5 February 2015 the Claimant and his wife attended a marriage interview. The inconsistencies and gaps in the information given by Mr Rajput and his wife were such that the Defendant decided that this was a marriage of convenience, or sham marriage as is usually said. His application for a residence card was refused; after the interview he was detained as an overstayer.[8]The Claimant lodged an appeal, with the First Tier Tribunal, against the refusal of his residence card on 12 February 2015, as he was entitled to do under Regulation 26 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”).[9]Removal directions were set on 12 February 2015 and he was removed on 20 February 2015, with his appeal against the refusal of the residence card still unresolved.[10]On the face of it, then, the story is simple. The Claimant is an overstayer who was given notice of a decision to remove him more than a year ago.

(g) of the NIAA; see section 92 of the NIAA 2002:

“(1)A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(j) ”

[11]He then made a human rights claim, which was refused and certified as clearly unfounded. He then got married to an EEA national; but the Defendant says it was a marriage of convenience which therefore did not give him a right of residence here. Accordingly removal directions were made, pursuant to the decision taken in June 2014, and he was removed. Because that removal was, in February this year, imminent he was detained beforehand. His appeal against the refusal of the residence card accordingly may be pursued, if at all, from outside the UK.[12]That summary sets out how the Defendant sees things. It is also how John Howell QC sitting as a Deputy High Court Judge saw things when refusing permission on the papers on 11 May 2015. Mr Pulman for the Claimant put forward a number of different arguments, but in the end he has not convinced me that it is even arguable that things are otherwise than as I have put them in that summary. I turn now to the Claimant’s grounds for review.

The Claimant’s eight grounds for review

[13]The Claimant’s grounds have been developed since his original grounds were filed in early February 2015 when he was still in detention. His original claim was for an injunction preventing removal, but that is now no longer relevant. The following grounds are taken from his Renewed and Amended Grounds which were before John Howell QC: i. The removal directions and subsequent removal were unlawful under Regulation 29(3) of the 2006 Regulations. ii. The removal directions and subsequent removal were unlawful under Regulation 24(6) of the EEA Regulations. iii. The removal of the Claimant was an unlawful interference with the free movement rights conferred by EU law on his spouse. iv. Even if the Claimant’s removal had been unlawful, it would have been unjustified and disproportionate under EU law. v. The removal directions and subsequent removal were unlawful under NIAA section 78. vi. The Claimant’s detention, starting on 5 February 2015 was unlawful ab initio and in breach of Article 5 of the European Convention of Human Rights and Fundamental Freedoms. vii. The removal was a breach of Article 8. viii. The Claimant is entitled to mandatory return.

The relevant law

[14]This case turns on the interaction of two sets of statutory provisions. One is the NIAA 2002, under which immigration decisions may be taken, some of which carry an in-country right of appeal and some of which do not. I have already set out the relevant parts of sections 82 and 92 of the NIAA 2002. Reference will also be made in what follows to section 92(4), which grants an in-country right of appeal where it applies:
“92 (4) This section also applies to an appeal against an immigration decision if the appellant—… (b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom.” (b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom.”
[15]The other is the 2006 Regulations, which implement Directive 2004/38/EC of the European Parliament and Council, known as the Citizens Directive and referred to below as the “2004 Directive”, whose objective is to secure consistent rights of free movement and residence for EEA nationals and their family members.[16]The 2006 Regulations begin with a number of definitions, including “family member” which includes a spouse (Article 7), but the term “spouse” does not include a party to a marriage of convenience (Article 2). Article 6 defines a “qualified person” as:(a) a jobseeker;(b) a worker;(c) a self-employed person;(d) a self-sufficient person; or(e) a student. And Article 14 reads, so far as relevant, as follows:
“14.—(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person. (2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

(b) ”

[17]Article 15B is also relevant, as are parts of Articles 19 and 29: “15B(1) This regulation applies during any period in which, but for the effect of regulation 13(4), 14(5), 15(3) or 15A(9), a person (“P”) who is in the United Kingdom would be entitled to reside here pursuant to these Regulations.(2) Where this regulation applies, any right of residence will (notwithstanding the effect of regulation 13(4), 14(5), 15(3) or 15A(9)) be deemed to continue during any period in which— (a) an appeal under regulation 26 could be brought, while P is in the United Kingdom, against a relevant decision (ignoring any possibility of an appeal out of time with permission); or (b) an appeal under regulation 26 against a relevant decision, brought while P is in the United Kingdom, is pending.(3) Periods during which residence pursuant to regulation 14 is deemed to continue as a result of paragraph (2) will not constitute residence for the purpose of regulation 15 unless and until— (a) a relevant decision is withdrawn by the Secretary of State; or (b) an appeal against a relevant decision is allowed and that appeal is finally determined .(4) Periods during which residence is deemed to continue as a result of paragraph (2) will not constitute residence for the purpose of regulation 21(4)(a) unless and until— (a) a relevant decision is withdrawn by the Secretary of State; or (b) an appeal against a relevant decision is allowed and that appeal is finally determined [...] 2 .(5) A “relevant decision” for the purpose of this regulation means a decision pursuant to regulation 19(3)(b) or (c), 20(1) or 20A(1) which would, but for the effect of paragraph (2), prevent P from residing in the United Kingdom pursuant to these Regulations.(6) This regulation does not affect the ability of the Secretary of State to give directions for P's removal while an appeal is pending or before it is finally determined.(7) In this regulation, “pending” and “finally determined” have the meanings given in section 104 of the 2002 Act. … 19(3) …a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if— (a) he does not have or ceases to have a right to reside under these Regulations; or (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21. … 29 (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 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, 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.” (a) an appeal under regulation 26 could be brought, while P is in the United Kingdom, against a relevant decision (ignoring any possibility of an appeal out of time with permission); or (b) an appeal under regulation 26 against a relevant decision, brought while P is in the United Kingdom, is pending. (a) a relevant decision is withdrawn by the Secretary of State; or (b) an appeal against a relevant decision is allowed and that appeal is finally determined . (a) a relevant decision is withdrawn by the Secretary of State; or (b) an appeal against a relevant decision is allowed and that appeal is finally determined [...] 2 . (a) he does not have or ceases to have a right to reside under these Regulations; or (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.[18]It will be seen that Article 29 addresses appeal rights against an EEA decision to remove a person from the UK, and this is crucial to the Claimant’s argument.

The eight grounds taken in turn

[19]I turn now to the detail of the Claimant’s eight grounds for review set out in the Renewed and Amended Grounds, which were before John Howell QC, referring where appropriate to the Renewed Grounds filed in May 2015 and to the Claimant’s skeleton argument and to the arguments developed before me. Ground for review 1: The removal directions and subsequent removal were unlawful under Regulation 29(3) of the 2006 Regulations.[20]This is the most complex of the Claimant’s arguments and it has taken a few different forms. As originally framed, the Claimant’s argument was that Article 29 of the 2006 Regulations guarantees him an in-country appeal, and that therefore he should not have been removed and should have been allowed to complete his appeal here.[21]However, the Claimant’s appeal, made in February 2015, was against the refusal of a residence card. It will be seen from the wording set out above that Article 29 is not relevant to that kind of EEA decision. Mr Justice Blair pointed this out in R (on the application of Abdullah) v Secretary of State for the Home Department [2009] EWHC 1771, at para 27:
“It is to be noted that the definition of "EEA decision" in Article 2(1) of the EEA Regulations 2006 distinguishes between EEA decisions as to (1) entitlement to admission; (2) entitlement to various documents including a residence card; and (3) removal. By its terms, Regulation 29 provides that appeals in respect of the first and third categories are to have suspensory effect. The second category is not included and nothing in the Citizens Directive has been cited to require an alternative interpretation. The EEA decision in the present case was a refusal of the claimant's application for a residence card. There was an appeal against that refusal. But both the EEA decision and the appeal, in my view, fell outside the suspensory provisions in Regulation 29.”
[22]Counsel who drafted the Grounds was unaware of Abdullah; I am grateful to Mr Pulman for drawing attention to it. There was an application for leave to appeal Abdullah, reported as R (on the application of AH) Iraq v Secretary of State for the Home Department [2010] EWCA Civ 250. Mr Pulman suggested that dicta in that decision meant that the grounds for appeal were arguable. Dyson LJ at paragraph 5 said: “I would accept that the legal issues that Mr Fordham [for the appellant] raises are arguable”.[23]I think it is very clear that Dyson LJ in paragraph 5 of that decision was referring only to the arguments for the appeal being heard despite its being academic. None of Mr Pulman’s arguments have given me any reason to suppose that doubt might be cast on the decision in Abdullah.[24]In the light of that, Mr Pulman framed his argument in a different way. He argues that Article 15B confers on the family members of EEA nationals a right of residence. A party to a marriage of convenience is not within the definition of family member (Article 2; Article 7) but, Mr Pulman says, Article 15B applies until that issue has been finally determined. While an appeal is pending, Article 15B grants a right of residence.[25]This is puzzling. If Article 15B guarantees an in-country right of appeal, it duplicates Article 29. That is not an impossible outcome but it is highly implausible. It is equally implausible that Article 15B would confer an in-country right of appeal without saying so.[26]However, Mr Pulman developed this argument at the hearing. His position was that the right of residence conferred by Article 15B can be overridden only by Article 19. Thus anyone who has a right of residence under Article 15B can only be removed by means of an order made under Article 19 – and then, of course, Article 29 confers an in-country right of appeal.[27]There are several difficulties in the way of Mr Pulman’s reliance on Articles 15B and 29.[28]The first is that he misconstrues Article 15B. Article 14(1) and (2) confers a right of residence on qualified persons and their family members. Article 14(5) makes it clear that there is no entitlement to reside where someone who would otherwise qualify is the subject of a decision under Article 19(3)(b) – to remove on grounds of public policy, public security or public health – or under Article 20(1) – for example a refusal to issue a residence card. The Secretary of State made such a decision in this case and therefore – unless he successfully appeals – Article 14 does not give the Claimant a right to reside here. There is no deeming provision that says that the Claimant has that right until he has exhausted all possible appeals against the decision that his marriage is a sham.[29]Article 15B does a different job. It is an adjunct to, among other provisions, Article 14(5). It is clear from the terms of Article 15B (3) and (4) that the function of the Article is to deem residence to continue in certain circumstances for the purpose of other Articles where computation of a period of residence is important. It does not itself confer a right. That is done by Article 14, subject to Article 14(5) as discussed.[30]Second, it is simply not the case that those with a right of residence under the 2006 Regulations can only be removed by an order made under Article 19. They certainly can be thus removed, and they will then have the protection of Article 29 giving an in-country right of appeal. But they can also be removed under section 82 of the NIAA. The NIAA and the 2006 Regulations operate in parallel and complement each other. Mr Hare drew attention to the dicta to that effect in R (on the application of Byczek) v Secretary of State for the Home Department [2014] EWHC 4298 (Admin) at paragraphs 60 and 61:
“60. The Defendant might have achieved her policy objectives in relation to EEA nationals by pursuing one of three possible routes. First, she might have carved out special rules for EEA nationals in the Immigration Act 1971. Such rules would have made clear, for example, that the criteria for removal were different, and narrower, in EEA cases. Secondly, she might have created a wholly self-contained regime for EEA nationals which did not rely on the Immigration Act 1971 at all. For such a regime to operate, the Defendant would have had to build into the EEA Regulations a web of decision-making and coercive powers which broadly matched sections 3 and 5 of, and Schedule 3 to, the Immigration Act 1971. …Thirdly, she might have created a form of hybrid between the first and two routes: in other words, the promulgation of a separate set of subordinate legislation which relied to some extent on pre-existing statutory powers. 61. The Defendant chose the third of these routes. She clearly intended to establish a separate regime for EEA nationals, but at the same time she did not intend to re-invent the wheel. Statutory powers were available and could be deployed.”
[31]Thus Mr Rajput was served with an IS 151 A in June pursuant to an immigration decision made under the NIAA 2002. His marriage and his request for a residence card made no difference to that situation; he was still subject to that immigration decision, and neither Article 14 nor Article 15 could have changed that.[32]In the course of the hearing Mr Pulman asked what, then, was Mr Rajput supposed to do when his position changed following his marriage? How does someone who is subject to a removal decision, and then becomes the spouse of an EEA national, access the protection required by the Citizens Directive? Mr Hare’s answer, for the Defendant, and with which I agree, was that an EEA national or family member would in those circumstances have an in-country right of appeal under s.92(4) of the NIAA 2002; Mr Rajput could have launched an appeal, claiming entitlement to do so on the basis of his marriage, throughout the last quarter of 2015 before removal directions were set, although he would have to had to prove that his marriage was genuine (as the Defendant points out in the Acknowledgement of Service, and makes reference to Re Papajorgi (EEA Spouse: Marriage of convenience: Greece) [2012] UKUT 38 (IAC)).[33]But the Claimant chose not to appeal the immigration decision and by the time removal directions were set he was a long way out of time to appeal. He could even have appealed out of time, saying that he was now married and claiming the right to stay. But he did not do so. And there is nothing in the 2006 Regulations that changes his position.[34]Mr Pulman launched two variants on this argument at the hearing; he argued that either the Defendant had in fact made a removal decision pursuant to Article 19, implicit in the refusal of the residence card, and that the Claimant’s appeal against that refusal was also an appeal against that fresh removal decision, or that no removal decision had been made alongside the refusal of the residence card and that it should have been made. The latter argument is disposed of once it is appreciated that the NIAA 2002 and the 2006 Regulations operate side-by-side; the effect of the 2006 Regulations is not that Article 19 is the only route to removal.[35]The former argument, namely that the Claimant’s appeal, following the refusal of the residence card, was implicitly an appeal against removal, is equally implausible. The argument must be either that Mr Rajput was appealing against the June 2014 removal direction, or that he was appealing against some other decision. Mr Pulman conceded that it was not an appeal out of time against the June 2014 notice. He sought to persuade me that the appeal against the refusal of the residence card was, impliedly or implicitly, an appeal against an unwritten decision to remove Mr Rajput following that refusal. But that is, again, implausible, and there is nowhere near enough in the Appeal Grounds to suggest that that was the intention. The removal directions had been set in June 2014 and no more was needed.[36]At a late stage in the hearing Mr Pulman did seek to cast doubt on the decision in Abdullah by suggesting that because the 2006 Regulations do not tell us where an appeal against refusal of a residence card is to take place, it must be the case that the refusal of a residence card is in fact a removal decision, against which Article 29 then gives an in-country right of appeal. That cannot be right; Article 26 of the 2006 Regulations gives the right to appeal EEA decisions, including the refusal of a residence card, but it neither guarantees an in-country right of appeal against that decision nor does it say that the refusal of a residence card cannot be appealed in the UK, as Article 27 does for certain other appeals. There is a right of appeal against the refusal of a residence card, but there is no need for provision about where it is to happen.[37]That disposes of Mr Pulman’s arguments based on Articles 15B and 29 of the 2006 Regulations, and Article 15B, if engaged, does not give a right to reside in the United Kingdom. Article 29 is simply not engaged because the NIAA s.82 was used instead, pursuant to the decision taken in June 2014. Ground for review 2: The removal directions and subsequent removal were unlawful under Regulation 24(6) of the 2006 Regulations.[38]This argument derives from the provisions of the 2004 Directive, and I start there because, as it turns out, regulation 24(6) is not relevant. Article 35 of the 2004 Directive says:
“Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriage of convenience. Any such measure shall be proportionate and subject to procedural safeguards provided for in Articles 30 and 31.”
[39]Article 30 of the 2004 Directions says:
“The notification [of certain decisions] shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall not be less than one month from the date of notification.”
[40]Accordingly Article 24 of the 2006 Regulations ensures that removal decisions made under Article 19 of those Regulations give the addressee at least a month to leave. Therefore, argues Mr Pulman, the fact that less than a month elapsed between the refusal of the residence card and the removal made the removal unlawful.[41]This is unsustainable because, as already established, the refusal of the residence card was not a removal decision. Article 30 says that such decisions must, “where applicable”, give the person at least a month to leave. That was not applicable in this case.[42]Article 30 applies to parties to a marriage of convenience just as to any other family member of an EEA national; so it does mean that Mr Rajput was entitled to one month’s notice of being required to leave. Many months elapsed between the decision to remove in June 2014 and the removal directions set in February 2015. He had his month and more. Ground for review 3: The removal of the Claimant was an unlawful interference with the free movement rights conferred by EU law on his spouse.[43]This argument was not developed at the hearing but it fails because it assumes a marriage that is not a marriage of convenience. Having decided that this was a marriage of convenience, the Defendant was not constrained by the rights of Mr Rajput’s wife. Mr Pulman observes that the decision of the Court of Justice of the European Union in Metock v Minister for Justice, Equality and Law Reform [2009] QB 318 means that the provisions of the 2004 Directive must be construed generously. But I do not think that that makes an arguable case for Mr Rajput in view of the clarity of the law bearing in the facts in this case. Ground4: Even if the Claimant’s removal had been unlawful, it would have been unjustified and disproportionate under EU law.[44]This is a reference to the requirement just quoted in Article 35 of the 2004 Directive for proportionality in dealing with the abuse of EEA rights, for example in responding to a marriage of convenience. But Mr Rajput was not removed in response to the decision made about his marriage, although clearly the marriage interview must in some sense have brought things to a head. His removal merely followed up the decision taken in June 2014, before the marriage had even taken place. Ground 5: The removal directions and subsequent removal were unlawful under NIAA section 78.[45]Section 78 of the NIAA 2002 reads as follows: “(1) While a person’s appeal under section 82(1) is pending he may not be—(a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or(b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts. … (4) This section applies only to an appeal brought while the appellant is in the United Kingdom in accordance with section 92.” (a) removed from the United Kingdom in accordance with a provision of the Immigration Acts, or (b) required to leave the United Kingdom in accordance with a provision of the Immigration Acts.[46]Again, this argument cannot succeed. Mr Rajput did not have an in-country right of appeal under section 92(2) against the immigration decision made in June 2014. He could have claimed to be entitled to an in-country right of appeal under section 92(4), by establishing the genuineness of his marriage. But he did not do so. Section 78 has no application to an appeal that did not in fact happen. Grounds 6, 7 and 8.[47]The final three grounds were not mentioned at the hearing and they stand and fall with the earlier grounds. The Claimant’s detention cannot have been unlawful once it is established, as it is, that the Defendant was entitled to set removal directions following the IS 151 A etc, nor can there have been a breach of Article 8 because, once it was determined that this was a marriage of convenience – in the absence of a successful appeal – the Claimant is in no better situation than he was in September 2014, when his human rights claim was certified.[48]And there can be no prospect of mandatory return.

Conclusion

[49]Accordingly this application for permission to seek judicial review fails.