Ait-Rabah, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 1099 (Admin)

Case No CO/1550/2016[2016] EWHC 1099 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/05/2016
Before
MR JUSTICE GARNHAM
Between
The Queen on the Application of Aziz Ait-RabahClaimantThe Secretary of State for the Home DepartmentDefendant
Ms Amanda Jones (instructed by Bhogal Partners) for ClaimantMs Saara Idelbi (instructed by Government Legal Department) for DefendantHearing Hearing dates: 26 th April 2016
Judgment

Introduction

[1]Mr Aziz Ait-Rabah is an Algerian citizen born in June 1988. Ms Veronika Marcincinova is a Slovakian citizen born in May 1990. Mr Ait-Rabah is a Muslim; Ms Marcincinova is a Roman Catholic. The two got to know each other over the internet. They first met in person on 3 February 2015.[2]Ms Marcincinova came to the UK in June 2015 and initially resided in Feltham, West London with Mr Ait-Rabah’s cousin. On 27 September 2015, Mr Ait-Rabah was granted a six month visit visa for the United Kingdom. He made use of that visa on a number of occasions between then and January 2016. On 11 January 2016, he returned to the UK, arriving at Luton Airport. This time he was in the company of Ms Marcincinova. He entered the UK relying on his visitor’s visa.[3]Later that month Mr Ait-Rabah and Ms Marcincinova gave notice of their intention to marry at Hillingdon Registry Office. The Registrar referred the proposed marriage to the Secretary of State for the Home Department who decided to investigate that marriage pursuant to section 48 of the Immigration Act 2014. A notice of that decision was sent to Mr Ait-Rabah.[4]On 10 March 2016, the Claimant attended Home Office premises at Eaton House, Hounslow, with Ms Marcincinova, for a marriage interview. Immediately thereafter Mr Ait-Rabah was served with a notice of an immigration decision, on form RED.0001, indicating that his leave to enter had been revoked. He was subject to immediate administrative detention. He was served with reasons for that detention and notice of his bail rights. He has been in detention ever since. According to the Home Office file note, those decisions were taken by an Immigration Inspector named Galichan.[5]Mr Ait-Rabah began these proceedings by way of an application for habeas corpus, challenging the legality of his detention. Pursuant to an order of May J, dated 24 March 2016, this claim has proceeded thereafter as an application for judicial review. On 12 April 2016, Dove J directed that there be a “rolled up” hearing for the determination of the Claimant’s permission to apply for judicial review and, if that were granted, the judicial review itself. The matter came on for hearing before me on 26 April 2016.[6]Having heard argument from Ms Amanda Jones, on behalf of the Claimant, I granted permission. I record here my gratitude to Ms Jones and to Ms Saara Idelbi, who appears for the Secretary of State for the Home Department, for their helpful and cogent arguments in this case.

The Competing Cases

[7]Ms Jones seeks to challenge the decision to revoke the Claimant’s leave to enter and to declare him an illegal entrant and the decision to detain him. She makes four points.[8]She argues, first, that he did not enter the UK by deception and that his detention since 10 March 2016 has been unlawful. She reminds me that the question whether the Claimant was an illegal entrant is a question of precedent fact for the Secretary of State to prove on the balance of probabilities and for me to decide. She asserts that there is no evidence as to what questions the Claimant was asked at Luton Airport and no evidence as to the answers he gave, other than what he told the Immigration Officer at the marriage interview on 10 March 2016. She points out that the Claimant speaks limited English and no interpreter would have been available at Luton Airport. She says that on the evidence currently available I cannot be satisfied that the Claimant was an illegal entrant.[9]Ms Jones says that even if I were to be satisfied on the evidence now available that the Claimant was an illegal entrant, the decision maker on 10 March 2016 could not rationally have come to that conclusion on the material he had.[10]Second, she argues that the decision making process on that day was flawed by procedural impropriety. Ms Jones argues that the Claimant’s detention was unlawful because “the whole interview procedure was an abuse of power, and demonstrated misfeasance in public office by the interviewing officer, Richard Hale”. She says that in several material respects the interview process was conducted in breach of Home Office policy. In particular, she says that the interview should have been conducted under caution and the decision to detain was insufficiently reasoned.[11]Third, Ms Jones contends that the Claimant had made an application for leave to remain in the United Kingdom as an unmarried partner of an EEA national. That application was made, she says, on 9 March 2016, the day before the marriage interview. She refers me to Directive 2004/38. She asserts that the decision to detain could not lawfully be made without proper consideration of that application.[12]Additionally, Ms Jones contends that the Claimant’s detention was in breach of Article 5(1) of the ECHR. She says the detention did not follow the procedures prescribed by law, that it was arbitrary and capricious and that it was not carried out in good faith. She says that the Claimant’s rights under Article 5(2) had been breached in that the Claimant was not promptly informed of the reasons for his detention. Finally she says that, contrary to Article 5(4) the Claimant has not been able to challenge the lawfulness of his detention “speedily”.[13]Ms Idelbi, for the Secretary of State for the Home Department, argues that the Claimant provided information during the course of the marriage interview which was sufficient to demonstrate that the Claimant’s entry to the UK at Luton Airport on 11 January 2016 must have been secured by deception. In particular, she says, it is plain that the Claimant was not entering the UK on that occasion as a visitor but with the intention of marrying Ms Marcincinova in the UK and settling here.[14]She says the procedure adopted on 10 March 2016 was not flawed. She says that this was not a criminal arrest and therefore the provisions of the Police and Criminal Evidence Act 1984 did not apply to the process. She says that the detention was lawful because there was no reason to doubt that the Secretary of State would be able to remove the Claimant within a reasonable period.[15]It is accepted on the Secretary of State’s behalf that there is an outstanding application by the Claimant as a family member of an EEA national. Ms Idelbi argues, however, that the Claimant’s relationship with Ms Marcincinova was not a marriage or a civil partnership, and was neither a genuine nor a durable relationship. Instead it is the Secretary of State’s case that what was contemplated was a marriage of convenience. In circumstances where the genuineness of the relationship is not accepted and the Claimant has no valid leave to remain, Ms Idelbi argues, the Secretary of State will be able to effect removal in a reasonable period.[16]The Secretary of State argues that there is a significant factual dispute about the conduct of the marriage interview by Immigration Officer Hale but asserts first, that it remains open to the Claimant to bring a claim for misfeasance in public office and second, that the conduct of the interview did not impact on the ultimate decision to detain which was made by a different officer, HMI Galichan. Ms Idelbi submits that Article 5 adds nothing to the common law argument.

The Legal Framework

[17]The Immigration Act 1971, the Immigration Act 2014, the Immigration (European Economic Area) Regulations 2006, Appendix V of the Immigration Rules and the Secretary of State’s Enforcement, Instructions and Guidance are all potentially relevant to this claim.[18]Pursuant to Section 3 of the Immigration Act 1971:
“(1) Except as otherwise provided by or under this Act, where a person is not [a British citizen] (a) he shall not enter the United Kingdom unless given leave to do so in accordance with [the provisions of, or made under,] this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period…”
[19]Section 3A provides:
“(1) The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom. (2) An order under subsection (1) may, in particular, provide for— (a) leave to be given or refused before the person concerned arrives in the United Kingdom; (b) the form or manner in which leave may be given, refused or varied; (c) the imposition of conditions; (d) a person's leave to enter not to lapse on his leaving the common travel area. (3) The Secretary of State may by order provide that, in such circumstances as may be prescribed— (a) an entry visa, or (b) such other form of entry clearance as may be prescribed, is to have effect as leave to enter the United Kingdom…” is to have effect as leave to enter the United Kingdom…”
[20]Pursuant to Section 24A:
“(1) A person who is not a British citizen is guilty of an offence if, by means which include deception by him— (a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom; or (b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action against him. (2) “Enforcement action”, in relation to a person, means— (a) the giving of directions for his removal from the United Kingdom (“directions”) under Schedule 2 to this Act or section 10 of the Immigration and Asylum Act 1999; (b) the making of a deportation order against him under section 5 of this Act; or (c) his removal from the United Kingdom in consequence of directions or a deportation order…”
[21]Section 26 provides as follows:
“(1) A person shall be guilty of an offence punishable on summary conviction with a fine of not more than [level 5] on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases— … (c) if on any such examination or otherwise he makes or causes to be made to an immigration officer or other person lawfully acting in the execution of [a relevant enactment] a return, statement or representation which he knows to be false or does not believe to be true…”
[22]Section 48 of the 2014 Act provides:
“(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, … (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…”
[23]Regulation 7 of the Immigration (European Economic Area) Regulations 2006 provides: “(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;(b) direct descendants of his, his spouse or his civil partner who are— (i) under 21; or (ii) dependants of his, his spouse or his civil partner;(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;(d) a person who is to be treated as the family member of that other person under paragraph (3). (2) A person shall not be treated under paragraph (1)(b) or (c) as the family member of a student residing in the United Kingdom after the period of three months beginning on the date on which the student is admitted to the United Kingdom unless— (a) in the case of paragraph (b), the person is the dependent child of the student or of his spouse or civil partner; or (b) the student also falls within one of the other categories of qualified persons mentioned in regulation 6(1). (3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked. (4) Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if either the EEA family permit was issued under regulation 12(2), the registration certificate was issued under regulation 16(5) or the residence card was issued under regulation 17(4).” (a) his spouse or his civil partner; (b) direct descendants of his, his spouse or his civil partner who are— (i) under 21; or (ii) dependants of his, his spouse or his civil partner; (c) dependent direct relatives in his ascending line or that of his spouse or his civil partner; (d) a person who is to be treated as the family member of that other person under paragraph (3). (a) in the case of paragraph (b), the person is the dependent child of the student or of his spouse or civil partner; or (b) the student also falls within one of the other categories of qualified persons mentioned in regulation 6(1).[24]The rules relevant to visitors to the UK are set out in Appendix V of the Immigration Rules:
“Part V4. Eligibility requirements for visitors (standard) V 4.1 The decision maker must be satisfied that the applicant meets all of the eligibility requirements in paragraphs V 4.2 – V 4.10. The decision maker must be satisfied that the applicant meets any additional eligibility requirements, where the applicant: … Genuine intention to visit V 4.2 The applicant must satisfy the decision maker that they are a genuine visitor. This means that the applicant: (a) will leave the UK at the end of their visit; and (b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home; and (c) is genuinely seeking entry for a purpose that is permitted by the visitor routes (these are listed in Appendices 3, 4 and 5); and (d) will not undertake any prohibited activities set out in V 4.5 – V 4.10; and … Prohibited activities … Marriage or civil partnership V 4.10 The applicant must not intend to marry or form a civil partnership, or to give notice of this, in the UK, except where they have a visit visa endorsed for marriage or civil partnership. Part V9. Grounds for cancellation of a visit visa or leave before or on arrival at the UK border and curtailment of leave Cancellation of a visit visa or leave to enter or remain as a visitor on or before arrival at the UK border V 9.1 A current visit visa or leave to enter or remain as a visitor may be cancelled whilst the person is outside the UK or on arrival in the UK, if any of paragraphs V 9.2 – V 9.7 apply. Change of circumstances V 9.2 Where there has been such a change in the circumstances of the case since the visit visa or leave to enter or remain was granted that the basis of the visitor’s claim to admission or stay has been removed and the visa or leave should be cancelled. Change of purpose V 9.3 Where the visitor holds a visit visa and their purpose in arriving in the United Kingdom is different from the purpose specified in the visit visa. False information or failure to disclose a material fact V 9.4 Where: (a) false representations were made or false documents or information submitted (whether or not material to the application, and whether or not to the applicant’s knowledge); or (b) material facts were not disclosed, in relation to the application for a visit visa or leave to enter or remain as a visitor, or in order to obtain documents from the Secretary of State or a third party provided in support of their application. … Curtailment V 9.8 A visit visa or leave to enter or remain as a visitor may be curtailed while the person is in the UK if any of paragraphs V 9.9 – V 9.13 apply. False information or failure to disclose a material fact V 9.9 Where: (a) false representations were made or false documents or information were submitted (whether or not material to the application, and whether or not to the applicant’s knowledge); or (b) material facts were not disclosed, in relation to any application for an entry clearance or leave to enter or remain, or for the purpose of obtaining either a document from the Secretary of State or third party required in support of the application, or a document from the Secretary of State that indicates the person has a right to reside in the UK.”
Genuine intention to visit Prohibited activities Marriage or civil partnership Change of circumstances Change of purpose False information or failure to disclose a material fact V 9.4 Where: Curtailment False information or failure to disclose a material fact

V 9.9 Where:

[25]The Secretary of State’s policy on immigration enforcement is set out in the document called “Enforcement, Instructions and Guidance”. The following section is material: “3.12. Deception when entry clearance has effect as leave to enter Article 4 of the Immigration (Leave to Enter and Remain) Order 2000 sets out the extent to which entry clearance has effect as leave to enter. Any entry clearance issued from 2 October 2000 has effect as leave to enter. (Please note direct airside transit visas are not entry clearances.) The ECO does not grant leave, but issues an entry clearance in the normal way which has effect as leave to enter when the person arrives in the UK. An IO at a port of entry then conducts an examination to establish that:• the passenger is the rightful holder of the document and that the visa is genuine• there has been no such change of circumstances to cause the leave to be cancelled. This examination is done under Schedule 2 to the 1971 Act. Therefore, any false return, statement or representation made to an IO will be covered by section 26(1)(c) of the 1971 Act in the same way as for any other on entry examination. A person who has entered in such a way by deception will still be an illegal entrant.”• the passenger is the rightful holder of the document and that the visa is genuine• there has been no such change of circumstances to cause the leave to be cancelled.

Discussion

(i) Did the Claimant Secure Entry by Deception?

[26]Of particular importance to an understanding to the background to this case is the witness statement provided by the Claimant and the detailed note prepared by the Home Office of the marriage interview on 10 March 2016.[27]In his witness statement, the Claimant explains in detail how he was introduced to Ms Marcincinova. He says that he had been exchanging messages with an old school friend called Naima to whom he had indicated that one day he would like a family of his own. Naima immediately indicated she had someone suitable in mind for him and provided him with Ms Marcincinova’s contact details. They then began an exchange on Facebook. It appears they got on well and arranged to speak to each other on Skype, which they then did regularly. He says they became close friends.[28]There were two difficulties in the way of their relationship. First, the distance between their homes in Algeria and Slovakia. And second, the fact that they were of different religious backgrounds. Nonetheless they continued to talk, and eventually met on 3 February 2015, when the Claimant travelled to Slovakia for the purpose.[29]At that stage, Ms Marcincinova’s family would not accept him as a suitor for their daughter because he was Muslim. They split up for a short period after that first contact because of the family’s reaction. After about a month they got back together when Ms Marcincinova explained that the family would accept the Claimant “so long as we move to a country near them”. The Claimant was unhappy with that proposal and suggested Ms Marcincinova move to Algeria. Given the absence of a Roman Catholic Church in Algeria, it is said, Ms Marcincinova declined that suggestion and the couple then considered other possible countries to which they could move. They considered and dismissed France and Canada as options, but settled on the UK.[30]The Claimant sought advice from his cousin, Abdulaziz Ait-Rabah (“Abdulaziz”) who lived in the UK and to whom he was close. Abdulaziz offered to sponsor him to come to the UK. Ms Marcincinova travelled to the UK first because it was easier for her to travel and to change jobs. Abdulaziz and other family members managed to arrange employment for Ms Marcincinova in the UK and offered to accommodate her at the family home in Feltham.[31]The Claimant then completed an application form for a visitor visa listing as his family members in the UK Abdulaziz Ait-Rabah and his wife. He made no mention of Ms Marcincinova. The Claimant visited the UK on 19 October 2015, staying for 11 days. On 27 October 2015, he says, he proposed to Ms Marcincinova and she accepted him.[32]The Claimant’s father lived in Algeria. He became unwell with cancer and on 30 October 2015, the Claimant says, he travelled back to Algeria to see him. He remained there until December 2015, by which time, according to the Claimant, his father “was becoming slightly better… It would be at least a few months until his next surgery so I decided to travel back to the UK during this period”.[33]The Claimant returned to the UK on 19 December 2015, where he remained living with his cousin until 5 January 2016. On that date he and Ms Marcincinova travelled to Slovakia “for a short holiday”. Whilst there, he met her family who were persuaded to give their blessing to the proposed marriage between him and Ms Marcincinova. “We did not set a date or decide on when to marry at this point, we simply wanted Veronika’s family’s blessing and approval on our prospective marriage”.[34]The Claimant describes in his witness statement his arrival in the UK on 11 January 2016. He said “the officer asked when my return flight was and I answered it was on 12 January 2016…” He explains that on returning to the UK he told his family of his engagement. He says his father was still unwell but was improving and did not require the Claimant to bring “any further treatments” for him from the UK. That being so, the Claimant “realised I need not go back quickly as my father’s health was much better and my father proposed I stay longer as there was now no emergency to return in a hurry”. Accordingly, the Claimant says, he decided not to use the return ticket for 12 January 2016 which he had purchased previously, and to stay in the UK. Thereafter, he says, Ms Marcincinova and he “thought long and hard” about their future and “decided we would marry in the UK”.[35]On 13 January 2016, the Claimant emailed Hillingdon Registry Office inquiring about arrangements to marry in the UK and on 19 January 2016, attended the Registry Office with a view to giving notice of their intention to marry. On 26 January 2016, they received notification from the Home Office of the intention to investigate the proposed marriage and an invitation to attend a “marriage interview”.[36]Much of that account is confirmed in the interview that took place on 10 March 2016 at Eaton House. On that occasion the Claimant and Ms Marcincinova attended with their solicitor. They brought with them a bundle of some 500 pages of documentation supporting their contention that this was a genuine relationship. That bundle contained records of Facebook communication, photographs and the like.[37]The Home Office note records the fact that checks by the Home Office had indicated that the Claimant had been issued with a six month visitor visa on 27 September 2015. The visa was for a family visit and the sponsor’s name was Abdulaziz Ait-Rabah who provided a letter of invitation. There was no reference in that application to the Claimant being in a relationship with Ms Marcincinova.[38]During the course of the interview the Claimant was asked whether the reason Ms Marcincinova came to the UK on 20 June 2015 “was so you could come and join her here?” The Claimant replied, “It was to make this country our home because we couldn’t elsewhere” (sic). He was asked what he had arranged before she arrived. He replied, “My cousin was living here. I thought she would be supported and protected by them actually. She arrived at my cousin’s place. She stayed there. I thought my cousin would help her find employment… Before she came she had found a well paid job in Slovakia but when she arrived she started working at my cousin’s friend’s place cleaning in a hotel”.[39]It was pointed out to the Claimant that on 14 June 2015 he had messaged Ms Marcincinova’s brother saying, “She wouldn’t be alone as I am waiting for my visa. I have cousins there. He has found a job and a place to live”. The Claimant agreed. It was suggested to him that he had assisted “Veronika in getting a job and said you intended joining her and settling in the UK?” He replied, “Yes, as I said before to make England our home”.[40]The Claimant was asked about his arrival at Luton Airport on 11 January 2016. He agreed he saw an Immigration Officer on arrival. He was asked, “what was said exactly when you saw the IO?” He answered, “They asked me why I went to Slovakia and how long I was planning to stay, when was my next flight to Algeria and I replied to him that my flight was on the 12th, the next day” (emphasis added). It is of note that no reference is made in his witness statement to the part of that answer underlined above.[41]He was asked, “Your sole answer was your flight was on the 12th?” He replied, “Yes”. He was asked, “Did you tell him you were travelling with Veronika?” He replied, “Why would I because he did not ask that”. He was asked, “did you tell him you had proposed to a Slovak national and had gone back to get her parents blessing?” He replied, “I didn’t tell him because he didn’t ask”. He was asked, “Did you tell him your travelling companion was a Slovak who you had moved here and arranged a job for?” He replied, “He asked me two to three questions. I replied to those questions”.[42]Later in the interview, the Claimant was asked, “You have a tenancy agreement dated 20.12.15 in yours and Veronika’s name?” He confirmed he had. He was asked whether he had given notice to marry at Hillingdon Register Office on 19 January 2016. He replied, “Yes we intend to get married”.[43]Perhaps, the single most important answer given during the course of the marriage interview on 10 March 2016 was as to the conversation between the Claimant and the Immigration Officer at Luton Airport. The Claimant said that he was asked, as might be expected, how long he was planning to stay in the UK. He said that his flight out of the UK was on 12 January 2016, the following day. It is right that the Claimant did hold a ticket for a return flight to Algeria for 12 January 2016.[44]In my judgment, two important issues of fact arise for decision by me. First, did the Claimant genuinely intend to leave the UK the day after he arrived? And second, was his intention on 11 January 2016 to remain in the UK long-term? In my judgment the answers to both are clear.[45]First, it is clear, in my view, that his answer to the question about how long he intended to remain in the UK after his entry on 11 January was entirely disingenuous. Whilst he held a ticket back to Algeria for 12 January, it is highly unlikely, in my judgment, that on 11 January 2016, he had any intention of using it. It is said on his behalf that at the time of his arrival he did intend to stay in the UK for a single day and that it was only because of reports of his father’s improving health that he decided to remain. I do not accept that. The Claimant’s father’s health had been improving since the latter part of 2015. The Claimant says in his witness statement that his father’s health had deteriorated after his diagnosis of cancer on 3 October 2015. But he also says that when he visited his father in December 2015 his father was improving, that he was now less weak after recovering from his operation and that it would be at least a few months until his next surgery. It was on that basis that he decided to travel back to the UK on 19 December 2015. There is no evidence to suggest that his father’s condition deteriorated thereafter.[46]In any event, it would have been quite remarkable, against the history I have described, that the Claimant should have travelled to the UK with his fiancée on 11 January 2016, intending to return to Algeria the following day, and then changed his mind in the space of 36 hours without any significant change in his family circumstances. Equally remarkable is the rapidity with which arrangements were then made for the couple to marry after this sudden change of plans. On the Claimant’s own evidence it was the very next day, 13 January 2016 that he first contacted Hillingdon Register Office with a view to inquiring about the procedures that would be necessary to enable him and Ms Marcincinova to marry.[47]The argument advanced by Ms Jones that the Claimant only formed the intention to stay in the UK after he had passed through immigration control at Luton Airport seems to me fanciful. In my judgment his explanation to that effect is simply a device to avoid the obvious conclusion that he gave a deliberately misleading answer to the Immigration Officer’s question as to how long he intended to remain in the UK. In my judgment, he deliberately misled the Immigration Officer at Luton Airport in order to secure admission.[48]Second, it seems to me equally clear that in January 2016 the Claimant’s real intention was to make his home in the UK with Ms Marcincinova. It is plain from the history that by the latter part of 2015, the Claimant and Ms Marcincinova had formed a firm intention to marry and a firm intention to settle in the UK. He had arranged, or helped to arrange, her move to the UK, her employment here and her accommodation with his cousin. She had accepted his proposal in October. They had entered a tenancy agreement for a property together. And he made it clear repeatedly to the Immigration Officer that he intended “to make England our home”. In my judgment, that was the purpose which Ms Marcincinova and the Claimant were pursuing when they arrived at Luton Airport.[49]I am also satisfied that had the Claimant given an honest answer to the question, “how long are you going to stay in the UK”, entry would have been refused, in accordance with the Immigration Rules and the Guidance set out above.[50]In those circumstances I have no hesitation in concluding both that the Home Office were justified in concluding that entry on 11 January 2016 had been obtained by deception and that they were, on the facts, correct in that conclusion. (ii). Procedural Impropriety[51]It is argued that the decision to detain was tainted by procedural impropriety.[52]First, it is said that the marriage interview was conducted in breach of Home Office Guidance and in a wholly inappropriate manner by Officer Hale. There is a stark conflict in the evidence on this issue and, save in one respect, I am not in a position to deal with that conflict. It does not seem to me necessary, however, for me to do so in order to determine this application.[53]The one exception concerns the evidence that Officer Hale asked the Claimant whether he and Ms Marcincinova had had sex. When that question was posed, the solicitor for the Claimant objected to it in the firmest of terms. Ms Jones submits that such questioning was contrary to Home Office policy which includes the following advice to officers: “You must avoid asking inappropriate questions, for example, about their sex life”.[54]I have no doubt, certainly in the majority of cases, that to ask a couple at a marriage interview about the details of their sex life would be unjustified and unnecessary. But to enquire simply whether their relationship was or was not a sexual one may well be both pertinent and necessary to an interview about the genuineness of a relationship. The answer to such a question is unlikely to be decisive either way, but it may well be relevant. In my judgment, the Home Office policy does not prevent such a question; what it is aimed at is the asking of unnecessary questions about the details of their sexual relationship. I reject the complaint on this ground.[55]Ms Jones complains about Mr Hale’s conduct in other respects. She says, for example, that he was rude, sneering and aggressive. Mr Hale denies he behaved in this manner and a complaint to the Home Office was rejected. But even if, which I neither accept nor refute, Mr Hale’s behaviour was inappropriate, it has no effect, in my judgment, on this claim. The decision to detain was taken by HMI Galichan, not Mr Hale. He was acting on substantially the same information as is now available to me.[56]Second, it is said that, in accordance with Home Office policy, the interview should have been conducted under caution. However, it is not suggested that PACE applied to this case and the policy on this topic is far from clear as to whether a caution was required. But even if it was, it does not seem to me that that can invalidate the decisions reached. As Ms Jones agreed in argument, failure to provide a proper caution does not mean that I should disregard the answers given in interview; it would mean that I have to review with particular care the answers provided. There is, however, no dispute by the Claimant either that those answers were given or that they were accurate. In those circumstances I can safely rely on them.[57]Thirdly, it is said that the decisions to revoke leave and to detain were insufficiently reasoned both as a matter of domestic law and under the ECHR. I reject that argument. Both decisions were given on standard forms. The material parts of the decision to revoke was expressed as follows:
“A decision has been made to revoke your leave so that it expires with immediate effect. The following reasons are given: On arrival at Luton on 11.01.16 you failed withheld material facts, from an Immigration Officer which would have been essential for them to make an informed decision about your eligibility to enter. You have entered illegally by means of verbal deception contrary to 24A(1)(a) of the Immigration Act 1971.”
[58]There are two mistakes in the second of those paragraphs. First the word “failed” has been left in place when it should have been removed. That is plainly a drafting error and could not have misled the Claimant or his advisers.[59]Second, the wrong section of the 1971 Act is referred to, as is acknowledged in the statement of Mr Hale. But the purpose of this notification is to explain why leave has been revoked and that is achieved by the first sentence and the reference to “by means of verbal deception”. The error in the identification of the relevant section of the 1971 Act is not material for that purpose.[60]The decision to detain is explained in a standard, tick box form, entitled “Notice to Detainee”. That document identifies that detention is being ordered under the 1971 and 2002 Acts and indicates the grounds for that decision. I see no grounds for objection in that document. In those circumstances this head of challenge is rejected. (iii). Application for Leave as an Unmarried Partner of an EEA National[61]Ms Jones asserts that on 9 March 2016, the day before the marriage interview, the Claimant’s solicitor gave notice to the Home Office of an intention to seek leave on behalf of the Claimant as an unmarried partner of an EEA national. At the end of the note of the marriage interview the following appears:
“I served papers on the subject in the presence of his sponsor and representative, who opined she did not agree with the decision. She stated that an EEA residency application, as unmarried partners, had already been lodged. It was pointed out to her that the couple do not co-habit and have never lived together in a relationship akin to marriage.”
[62]Ms Jones argues that as an EU citizen, Ms Marcincinova has a right to freedom of movement and a freedom of establishment, and that the Claimant is her partner and a member of her family. She refers in her skeleton EU Directive 2004/38. This argument was developed rather briefly by Ms Jones. She took me to the decision of the EU in Metock [2008] EUECJ C/127/08 where the court found that the directive “aims in particular to strengthen the right of free movement and residence of all Union citizens”. Ms Jones contended that ECJ case law emphasised that the fact that the person concerned is, or has been, illegally present in a Member State is not relevant to whether they should be granted a right to residence as a non-EEA family member of an EU citizen exercising Treaty rights.[63]Ms Idelbi makes two responses to this argument. First, she contends that put at its highest Ms Marcincinova is simply the girlfriend of the Claimant. They are not married and do not live together. She says that in fact, on the basis of the Secretary of State’s findings, their relationship is neither genuine nor subsisting. Second, she argues that in any event the EEA application has not yet been determined. She says in fact it was not even recorded as being received by the Home Office until 31 March 2016.[64]In my judgment the proper analysis is that the application as an EEA national has not yet been determined. It may be that that application was sent, as Ms Jones contends, on 9 March 2016 but there is no evidence that it had been received that day, or the next when the decisions under challenge were made. In fact there is nothing to indicate precisely when it was received. It is clear that the Immigration Officer was aware on 10 March that the Claimant’s solicitor was asserting that such an application was being pursued, but nothing more.[65]On any view, the Home Office was entitled to a little time to consider the merits of that application. This application for judicial review has overtaken that consideration and is plainly important that the decision is made upon it promptly. But in my judgment it cannot be said that the decision under challenge in these proceedings can be invalidated by reference to that as yet undecided application.[66]Ms Jones mounted her challenge under EU law directly by reference to the terms of the 2004 Directive. But Article 40 of the Directive provides that “Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive...” Thus this Directive is not of direct effect. In the UK, Article 40 has been complied with by means of the Immigration (European Economic Area) Regulations 2006. I was not taken to these Regulations by either advocate. Yet, it is against those domestic Regulations, at least in the first instance, that the actions of the Defendant will have to be tested. As was neatly summarised by the AIT in HB v SSHD [2008] UKAIT 69:
“…whilst a directive is binding as to the result to be achieved, the treaty leaves to national authorities the choice of form and methods: Art 288 TEU. Only the failure on the part of a Member State to implement a directive correctly or within the time frame provided will result in an individual being able to rely for direct effect on the provisions of the Directive: Case 152/84 Marshall v SW Hampshire AHA [1986] ECR 723. Otherwise it will only be where there is ambiguity in the meaning of a particular provision in the national implementing measures that recourse can be had to EU or Community law: Webb Emo Air Cargo (UK) Ltd [1993] WLR 49…”
[67]In the absence of either a decision by the Secretary of State on the EEA application or any submissions from the Claimant as to the proper construction of the Regulations, it is my view that the Claimant is not a family member of Ms Marcincinova within the definition of that term in Regulation 7. He is not her spouse, her civil partner, her dependant or a member of her extended family.[68]It may or may not be that when a decision has been made on the EEA application (or were it to be the case that the Home Office were to fail to take such a decision) that a challenge will be launched. But in my judgment it is premature to do so now. I see no basis for an argument that the decisions of 10 March were invalidated simply by an assertion that an application had been, or was being, lodged. (iv). Article 5 ECHR[69]The argument advanced on behalf of the Claimant that his detention is in breach of Article 5 is, in my judgment, hopeless. It adds nothing to the challenge under domestic law.[70]First, subject only to the pending EEA application, the Claimant is plainly removable from the UK forthwith. There is no obvious reason why the EEA application should not be decided by the Secretary of State immediately. Applying the well-known principles set out in ex parte Hardial Singh [1984] 1 WLR 704 and Lumba v SSHD [2011] UKSC 12, it can safely be concluded, in those circumstances, that there is a sufficient prospect of removal of the Claimant to justify his current detention.[71]Second, for the reasons set out above, I see no merit in the argument that the grounds for the detention have not been sufficiently explained.[72]Third, the suggestion that there is a breach of Article 5(4) because the Claimant has not had the lawfulness of his detention decided “speedily” by a court is wholly misconceived. It entirely fails to take account of the fact that on 21 March 2016 the Claimant applied for bail to the First Tier Tribunal but withdrew that application two days later, or that on 4 April 2016 he again applied for bail and again the following day withdrew his application. Similarly, this argument ignores the fact that on 7 April 2016 the Claimant’s application for interim relief was refused by Dove J and that this rolled up hearing has been listed and determined promptly thereafter. The Claimant was able to challenge his detention before the court promptly; he has done so but that challenge has failed at each stage.[73]In those circumstances, whilst permission to apply for judicial review is granted, substantive relief is refused.