Seferi & Anor, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 287 (Admin)

[2018] EWHC 287 (Admin)Case No CO/3566/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 20 February 2018
Before
PHILIP MOTT QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimantson the application ofClaimantKRESHNIK SEFERI and ANGELINA ZARAClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Allan Briddock (instructed by Rahman & Co) for ClaimantsZane Malik (instructed by Government Legal Department) for DefendantHearing Hearing dates: 7 February 2018
Judgment ApprovedPhilip Mott QC :
[1]Mr Seferi is an Albanian national, aged 30. He entered the UK illegally, he says in June 2014. Ms Zara was born in Albania in 1991, but is now a Greek national with permanent residence in the UK having exercised treaty rights since 2009. In April 2015 she was diagnosed with multiple sclerosis.[2]According to the Claimants they met in January 2015 and started to live together as a couple in September 2015. In December 2016 they decided to marry. On 3 February 2017 they gave notice of their intention to Wandsworth Borough Council. The Registrar, as required by the Marriage Act 1949, referred that to the Defendant. The Defendant invited the Claimants to an interview, to investigate whether the marriage was a sham. The Claimants say they did not receive the invitation, and in any event did not attend the interview. The Defendant issued a notice that they had not complied with the investigation into their proposed marriage, and it could not take place.[3]On 20 May 2017 the Claimants gave further notice of their intention to marry, this time to Haringey Borough Council. The Registrar again referred it to the Defendant. The Defendant decided to investigate and invited the Claimants to an interview. This time they attended. On 13 July 2017 the Defendant issued a notice stating that they had complied with the investigation. Accordingly, the marriage could have taken place in the UK.[4]However on the same day, 13 July 2017, the Defendant decided to remove Mr Seferi as an illegal immigrant, and detained him for that purpose. At the time of detention Mr Seferi was issued with a “one-stop” notice, inviting him to set out any grounds why he should be allowed to stay in the UK or not be removed. He did not complete the form setting out such grounds, or make any other application.[5]On 26 July 2017 the Defendant notified Mr Seferi that he would be removed from the UK on 3 August 2017. This prompted the issue of the current claim form on 2 August 2017, challenging the decision to maintain removal directions set for 3 August 2017. The original form gave the date of decision as 27 July 2017, but this was amended in manuscript to 13 July 2017 before issue.[6]The Grounds drafted by Mr Briddock sought extensive relief, as follows: i) An order preventing the Respondent from removing Mr Seferi; ii) A declaration that the Respondent’s decision to classify the proposed marriage as a ‘sham’ was unlawful; or a declaration that it was not a ‘sham’; iii) A declaration of unlawful detention, coupled with an order for the release of Mr Seferi and damages for his detention.[7]An interim order prohibiting Mr Seferi’s removal was made by Singh J (as he then was) on 2 August 2017. He was released from detention on 16 August 2017, but on terms that required him to surrender his passport, so that he could not marry before this hearing.[8]Permission was granted to bring judicial review proceedings on 12 October 2017. Mr Briddock, in his Amended Skeleton Argument for this hearing, puts the remaining issues into three Grounds: i) The Defendant has unlawfully found that the proposed marriage is a sham. ii) The prevention of the marriage, by deeming it to be a sham and by detaining Mr Seferi, is an unlawful violation of the free movement rights of Ms Zara, and discriminates against her on the grounds of her nationality. iii) The detention of Mr Seferi from 13 July 2017 to 16 August 2017 was unlawful.[9]The first of these issues is the key one, and Mr Briddock accepts that the other two cannot succeed unless the Claimants succeed on Ground 1. For reasons I give in this judgment, I have concluded that Ground 1 cannot succeed, and the other Grounds fall with it.

Law

[10]The principles relating to removal and detention are not in dispute, and I do not need to set out the law extensively. i) Mr Seferi has never had any leave to enter or remain in the UK. As an illegal immigrant, he may be removed by the Defendant. He has a valid Albanian passport, and there are no barriers to removal apart from this challenge. ii) The Defendant has the power to detain Mr Seferi for the purpose of removal, subject to the well-established Hardial Singh principles. iii) The power to detain cannot lawfully be used merely to prevent a marriage, even if it would be a sham marriage or a marriage of convenience.[11]Article 12 of the European Convention on Human Rights provides for a right to marry. That is not an absolute right, but it is a ‘strong right’ (see Lord Bingham in R (Baiai) v SSHD [2009] 1 AC 287, at paragraph [13]). But a national authority may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, to prevent it (see Baiai paragraph [22]).[12]Following Baiai, amendments were made to the system for notifying the Defendant of proposed marriages in cases such as this. The current scheme derives from section 28H of the Marriage Act 1949, added by the Immigration Act 2014. I need not set it out in full. In essence, such a proposed marriage must be referred to the Defendant by the Superintendent Registrar. Then, under section 48(2) of the Immigration Act 2014, the Defendant “must decide whether to investigate whether the proposed marriage … is a sham”. If an investigation is conducted, section 50(4) of the 2014 Act requires the Defendant to “decide whether or not each of the relevant parties has complied with the investigation (the “compliance question”)”, and that must be done within 70 days (section 50(7)).[13]The term “sham marriage” is defined by section 24(5) of the Immigration and Asylum Act 1999. The first condition is that one of the parties is not a relevant national, and that definition covers Mr Seferi. Thereafter, section 24(5) requires that two conditions must be satisfied for the marriage to be classed as a sham: (b) there is no genuine relationship between the parties to the marriage, and (c) either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes –(i) avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;(ii) enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom. (i) avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules; (ii) enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom.[14]“Marriage of convenience” is a term found in the Immigration (European Economic Area) Regulations 2016, which governs the issue of EEA Residence Cards. It is defined by regulation 2 as follows: “marriage of convenience” includes a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent –(a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or(b) any other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties; (a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or (b) any other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;[15]Under the 2016 Regulations, a spouse is classed as a “family member” (regulation 7), but a partner must prove a “durable relationship” to be classed as an “extended family member” (regulation 8). An EEA family permit must be issued to a family member, and may be issued to an extended family member (regulation 12). Thus marriage in a case such as this would confer significant immigration benefits on Mr Seferi.[16]It follows from the definitions above that a marriage of convenience under the 2016 Regulations may be entered into by a couple in a genuine relationship, and is different from a sham marriage as defined by the 1999 Act. That was the conclusion of this court in Molina v SSHD [2017] EWHC 1730 (Admin), which both parties before me accepted to be correct.[17]The Supreme Court case of Sadovska v SSHD [2017] 1 WLR 2926, dealing with the earlier Immigration (European Economic Area) Regulations 2006, makes clear that the immigration advantage must be the predominant purpose of the marriage, and it must be the purpose of them both (see paragraph [29]).[18]I should note that the Defendant can only conduct an investigation, and thereby delay the proposed marriage, if she has reasonable grounds for suspecting that the proposed marriage is a sham (s.48(5) of the 2014 Act), but there has been no challenge to the decision to investigate on that ground. Once a lawful investigation has been carried out, there is no bar to the information being used to determine also whether the proposed marriage is a marriage of convenience within the meaning of the 2016 Regulations.[19]The approach to such investigation is set out in the Defendant’s guidance to staff entitled “Immigration Act 2014 – Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff” published in March 2015. The guidance appears to be restricted to the investigation of sham marriages, as defined by the 1999 Act, rather than the wider definition of marriages of convenience in the 2016 Regulations. I was referred in particular to paragraph 3.1, headed “Purpose of investigation”. It includes the following guidance: “Where the investigation determines that the proposed marriage or civil partnership is a sham, the Home Office may where appropriate:• Take an enforcement decision (e.g. curtailment, removal) against the non-EEA or EEA national(s) involved.• Refuse any application under the Immigration (European Economic Area) Regulations 2006 of the Immigration Rules which is based on the relationship in terms which will withstand any appeal.• Seek the prosecution of those involved in a criminal offence, e.g. perjury or facilitation of illegal immigration, by consultation with or reference to the relevant prosecuting authority. Whether or not the investigation determines that the proposed marriage or civil partnership is a sham, the Home Office may take appropriate removal action against immigration overstayers or illegal entrants identified under the referral and investigation scheme.”• Take an enforcement decision (e.g. curtailment, removal) against the non-EEA or EEA national(s) involved.• Refuse any application under the Immigration (European Economic Area) Regulations 2006 of the Immigration Rules which is based on the relationship in terms which will withstand any appeal.• Seek the prosecution of those involved in a criminal offence, e.g. perjury or facilitation of illegal immigration, by consultation with or reference to the relevant prosecuting authority.[20]This underlines the point, accepted on both sides, that the power to remove can be exercised whatever the conclusion about the proposed marriage.

Ground 1 – Was there a decision about the proposed marriage?

[21]The first question in issue is whether there was a decision about the nature of the proposed marriage which is amenable to judicial review. Mr Malik for the Defendant submits that there were three decision letters on 13 July 2017, relating to removal, detention and the one-stop notice, and there is no challenge to any of these. Mr Briddock for the Claimant accepts that there is no challenge to any of these, but alleges there was a reviewable decision to treat the proposed marriage as a sham and/or a marriage of convenience.[22]He relies on Molina, where the decision about the proposed marriage was held to be reviewable (although the claim was in fact dismissed). But there an Immigration Officer had attended the Register Office on the day of the marriage and had issued a notice IS.126. The Judge in that case accepted that it set out a decision and the reasons for it. I had no evidence about the form or nature of such a notice, save for its description in Molina. No such notice was given in the present case.[23]It is necessary first to examine the documents which Mr Briddock submits show a reviewable decision separate from the decision to detain and remove Mr Seferi. I deal with them chronologically. i) There are three entries in the GCID notes for 13 July 2017. They are not timed, so I deal with them in the order in which they appear in the bundle. a) The first relates to Mr Seferi, and is headed “Legal basis of detention”. It states that his detention is “to be on the basis that subject is an illegal entrant and has entered without leave”. It notes that there are no outstanding applications, he does not wish to leave, and is unlikely to adhere to voluntary departure or other restrictions. The risk of absconding is assessed as medium and removability as high as he has a valid Albanian passport. In respect of the relationship with Ms Zara the note states that it “is sham”, and he has been “deemed to have made an application for a sham marriage”. b) The second follows immediately in the GCID records for Mr Seferi, and relates to the marriage interview. Its conclusion is that “elements of genuineness to the relationship were demonstrated but overall the application for marriage had been contrived, mainly by the sponsor [Ms Zara], as a vehicle to allow the applicant to remain in the UK legally”. c) The third relates to Ms Zara, and again relates to the marriage interview. It states “Based on the respective answers given from both parties, it calls into question the genuineness of the relationship”. It says that she “stated that she had looked into the matter of her partner’s immigration status and how he could legalise his stay but that she had not had a conversation with him about it”. She said he was unaware that by marrying her, his status would be legalised. The same conclusion is drawn as in the entry for Mr Seferi. The entry continues as follows: We “have considered all the information available we are satisfied that SEFERI is liable to administrative removal as defined in section 10 of the Immigration and Asylum Act 1999 on the basis his relationship with MISS ZARA appears to [be] one of convenience, and that he admitted to entering the UK as a clandestine 3 years ago, therefore circumventing immigration control. He did not make himself known to Immigration until the marriage referral.” ii) The next entry is in the Detention Review of 14 July 2017. It merely summarises the conclusion set out in the GCID notes, adding “Relationship with partner is not considered truly subsisting”. iii) On 20 July 2017 there was a further Detention Review. Here it is said that the marriage was determines as sham. The GCID notes for the same date also calls it a sham, though there is evidence of some confusion of terms in the final paragraph, which reads: “Although elements of genuineness to the relationship were demonstrated, the overall application for marriage had been contrived, mainly by the sponsor [Ms Zara], as a vehicle to allow the applicant to remain in the UK legally. As such the relationship is deemed a sham to circumvent immigration officials.” iv) On 25 July 2017 written reasons were provided for opposing bail. These stated: “Subject has no basis of stay in the UK and seeks bail in order to marry. Both the subject and his partner are free to marry in either Albania or Greece, their countries of origin. The subject admits that he illegally entered the UK in order to seek work and that his partner proposed in order to regularise his stay so that he could continue to care for her. She stated during a marriage interview completed on 13/07/17 that she no longer requires his assistance. It was deemed that their relationship was contrived to help him stay and for her to have assistance and he was thus detained.” v) Finally, on 26 July 2017 an Immigration Factual Summary was served, in which it is said “Marriage determined as Sham”.[24]The remaining piece of evidence on this issue comes in a witness statement from Ms Zara dated 27 July 2017. In paragraph 12 she describes being told after the marriage interview that there was good news and bad news. The good news was that they had complied with the investigation and there was nothing of concern with their relationship. The bad news was that because of the way Mr Seferi had come to the UK they could not allow him to get married and he would be detained.[25]In my judgment, none of the entries after 13 July could amount to freestanding decisions. They are, in general, summaries of what had been concluded on 13 July about the relationship. In order to see what that conclusion was, it is necessary to look only at the entries of 13 July 2017.[26]The entries of 13 July, though expressed in somewhat different terms, can best be summarised as being neutral about genuineness but certain that the primary purpose of the marriage was to give Mr Seferi an immigration advantage. In other words, even if it was not truly a sham marriage as defined by the 1999 Act, it was certainly a marriage of convenience as defined by the 2016 Regulations. I do not think that the recollection of Ms Zara about what was said to her substantially undermines that analysis.[27]The difficulty about treating that conclusion as a freestanding reviewable decision is not just that it was not set out in a formal decision letter, giving reasons (unlike Molina). Informal decisions may be reviewable, especially if they are conclusive and lead directly to adverse results. The difficulty here is that the conclusion was not set out in a formal decision letter precisely because it did not lead to any direct result in relation to the marriage. If Mr Seferi had not been detained, and had retained his passport, he and Ms Zara could have married in the UK. The indirect result of preventing the marriage stemmed only from the decision to detain and remove Mr Seferi, not from the conclusion about the proposed marriage.[28]It follows, in my judgment, that Mr Malik is right about the only reviewable decisions of 13 July 2017. But that does not entirely dispose of this claim. In argument I expressed my doubts about treating the conclusions in relation to the marriage as a separate decision, and asked Mr Briddock whether he would also argue that the failings he alleged undermined the decision to remove. He said that they “infected” that decision, which I think comes to the same thing. So even though in reply he stated categorically that he was not seeking to challenge any of the three decisions identified by Mr Malik, I must consider the decision to remove and the extent to which it was really based on the conclusion about the marriage. If it was, I must consider whether that conclusion was a rational one, open to the Defendant to draw from the material before her.

Ground 1 – Reasons for the decision

[29]Mr Malik drew my attention to the Notice of Removal dated 13 July 2017, which sets out Reasons for Decision as follows:
“You are specifically considered a person who is an Illegal Entrant, because Home Office records have revealed and you admitted that you entered the United Kingdom without obtaining the relevant documentation required by an Albanian national and to date you have not submitted any further applications to regulate your leave in the United Kingdom. You stated you entered the United Kingdom in June 2014 concealed in the back of a lorry in Brussels that was bound for the UK, and you did not see an Immigration officer on arrival. You are therefore an Illegal Entrant (Entry Without Leave), in breach of Sec 3(1)(a) of the Immigration Act 1971 as amended, which is an offence under Sec 24(1)(a) of the Immigration Act 1971 as amended.”
[30]That is certainly the starting point for determining the reason for the decision, but it is not necessarily the ending point. If the surrounding documentation shows that there was really another, unexpressed reason for the decision, and that is an unlawful reason, then this court could legitimately intervene.[31]The other potentially relevant document is the Notice to Detainee – Reasons for Detention and Bail Rights, also dated 13 July 2017. This justifies detention for two reasons, that he was likely to abscond if given temporary admission or released, and that his removal from the UK was imminent. Four factors are ticked as being the basis of this decision, as follows: (1) You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place. (4) You have used or attempted to use deception in a way that leads us to consider you may continue to deceive [it was accepted that this relates to the initial illegal entry]. (5) You have failed to give satisfactory or reliable answers to an Immigration Officer’s enquiries. (6) You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK [this must in fact relate to lawful basis only, as his identity and nationality were established by a valid Albanian passport].[32]Of these factors, only those numbered (1) and (5) are affected by the conclusion on the relationship between the Claimants.[33]It is necessary to assess the decision in the round. In my judgment it is clear that the primary basis for the decision to remove was as stated, that this was an illegal entrant who could swiftly be returned to Albania. The decision to detain is not challenged, and in any event is justified for a man who has evaded immigration for three years and who can be removed within days.[34]Those simple factors are enough to give the Defendant the power to remove and detain. There is nothing to suggest that in reality this was a decision prompted by the desire to prevent the proposed marriage, although detention and removal would have that effect. The relevance of the conclusion about the relationship was secondary. It related to matters of discretion, and whether it was reasonable to exercise the power to remove. If it had been accepted that the relationship was genuine, and that the marriage was proposed solely for the benefit of that relationship, it would have been open to the Defendant to decide not to exercise that power. But that is very far from saying that the conclusion was a reason for removal, or “infected” the decision to remove.

Ground 1 – Rationality

[35]Even assuming that the conclusion on the relationship “infected” the decision to remove Mr Seferi, the Claimants still have to show that the decision was unlawful in the sense of being a conclusion which was not rationally open to the Defendant on the material available.[36]In my judgment such irrationality cannot be shown. Ms Zara at least had accepted that she researched how Mr Seferi could legalise his stay, even though she said she had not discussed it with him. It is not an unreasonable inference that someone in his position would know that marriage to an EU national would assist his immigration status. Thus it was a rational conclusion that this was a marriage desired by both parties predominantly for the immigration advantage it would give to Mr Seferi, and therefore was a marriage of convenience. The conclusion that this was a marriage of convenience does not require the Defendant to reach a concluded view on the genuineness of the relationship, and none was reached at that stage.[37]The reality, no doubt, is that the Defendant expected Mr Seferi to make an application in response to the one-stop notice which would have led to further investigation and evidence, and a formal decision on the proposed marriage with reasons. Such an application might have been under the 2016 Regulations, asserting a “durable relationship” with Ms Zara. It might have been an Article 8 application within the Immigration Rules, or exceptionally outside them. Some such application might still be possible, but it does not affect this decision.[38]For these reasons I conclude that Ground 1 is unsustainable and must be dismissed. It is accepted that as a result Grounds 2 and 3 must also fail. If it was lawful to remove Mr Seferi, there was nothing wrong in pointing out that the couple might be able to marry in Albania or Greece, and neither his removal, nor the effective prevention thereby of a marriage in the UK, can be categorised as a violation of Ms Zara’s free movement rights. And for the reasons I have already briefly set out, if the removal decision was lawful, so was detention for what (except for these proceedings) was likely to be a very short period.[39]The claims for judicial review are therefore dismissed in their entirety.[40]I will invite the parties to agree the final form of order and any questions of costs before I hand down this judgment. If necessary, costs can be dealt with on oral submissions in the usual way.