(1) Elkhateb v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Andrew Thomas |
| Judgment Date | 02 November 2017 |
| Neutral Citation | [2017] EWHC 3070 (Admin) |
| Date | 02 November 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4159/2017 |
[2017] EWHC 3070 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Andrew Thomas QC
(Sitting as a Deputy Judge of the High Court)
CO/4159/2017
The Queen on the Application of
APPEARANCES
Ms K Anifowoshe (instructed by Elkettas & Associates Solicitors) appeared on behalf of the Claimants.
Mr R Harland (instructed by the Government Legal Department) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
A number of grounds of challenge are made in this case. In large part, though, they all turn on the question of whether or not it was lawful for the Secretary of State to refuse to accept the claim that the first and second claimants were genuinely and lawfully married at a ceremony earlier this year.
Factually, the claimants' case is this. The first claimant is 28 years of age. He is a national of Egypt. The second claimant is now 25 years of age. She is a national of Romania, and therefore an EEA citizen. The first claimant entered the UK illegally on 25 th February 2014. He previously applied for a residence card based on the fact that a family member (namely his sister-in-law) was a Greek national. That application was rejected. The first claimant's case is that he and the second claimant married on 24 th January 2017 at a civil ceremony, in fact confirming an earlier Islamic marriage. On 1 st September 2017 the Secretary of State determined that it was a marriage of convenience. The first claimant was detained and removal directions were issued.
The first claimant contends that his detention is unlawful, and that the service of removal directions was unlawful, on the grounds that he has the rights of a spouse of an EEA citizen. The second claimant complains that her residence card was unlawfully retained and not returned to her until after some delay.
The first claimant admits entering the UK in the circumstances which I have set out. He has produced an additional document to the court to show that not only was there a civil ceremony in January 2017 but an Islamic ceremony some months earlier on 5 th April 2016. He says that the allegation that this is a marriage of convenience is baseless and that he is entitled to the rights that arise under the EC Directive 2004/38 and also under the immigration EEA Regulations of 2016.
Both UK and EC law are alert to the risk that lawful immigration policy might be circumvented or undermined by marriages of convenience and other similar abuses. The scheme of the Regulations addresses that risk, in that the definitions in Regulation 2 state that “spouse” does not include a party to a marriage of convenience. Regulation 2 goes on to define marriage of convenience; it is not necessary to read the Regulation out. All of that is consistent with the EC Directive, Art.35 of which specifically provides that Member States may adopt necessary measures to address abuses of rights or fraud such as marriages of convenience.
The logical starting point is this: is there any ground to challenge the determination of 1 st September 2017 that this was a sham marriage? The relevant test for review was discussed by the Upper Tribunal in (R) Ahmed v Secretary of State [2015] UKUT 436. A judicial review can only succeed if the Secretary of State's categorisation of the marriage as one of convenience is found...
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