Appeal Under Section 13 Of The Tribunals, Courts And Enforcement Act 2007 By Adebayo Aina Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Justice Clerk,Lady Paton |
| Neutral Citation | [2016] CSIH 39 |
| Court | Court of Session |
| Docket Number | [XA134/15] |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| Year | 2016 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 39
[XA134/15]
Lord Justice Clerk
Lady Paton
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the APPEAL
under section 13 of the Tribunals, Courts and Enforcement Act 2007
by
ADEBAYO AINA
Appellant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents:
Act: Party
Alt: Gill, Office of the Advocate General for Scotland
1 June 2016
Introduction
[1] This appeal arises out of the appellant’s application under the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) for a residence card on the ground of his marriage to a British national.
Immigration history
[2] The appellant is a national of Nigeria. On 24 August 2010 he was convicted of two offences in the UK, viz. procuring a false marriage and trying to obtain leave to remain in the UK by deception. He was sentenced to six months on each charge, the sentences to be served consecutively. He applied to the Secretary of State to remove him to Nigeria in exchange for commuting his sentence under the facilitated return scheme. The Secretary of State accepted that application and issued a deportation order under section 32(5) of the UK Borders Act 2007. He was removed from the UK on 31 January 2011. In March 2011 in Lagos he married a British citizen with whom he had been in a relationship since 2007. He (and his wife) returned to the UK at an unknown date, after a short period in Germany.
Application for residence card
[3] On 14 May 2013 he applied for an EEA residence card on the ground that he was married to a British national. He was duly issued with a Certificate of Application under the 2006 Regulations. On 17 December 2013 his application for a residence card was refused. The refusal was based on an interpretation of the 2006 Regulations, namely Regulation 9 (insufficient evidence that the appellant’s wife had been working or self-employed in another member state (Germany) before coming back to the UK) and Regulation 20 (refusal was justified on the grounds of public policy, public security or public health, as those terms were defined in Regulation 21). The appellant appealed to the First Tier Tribunal (FTT). By determination dated 25 March 2014, the FTT upheld the appeal in relation to Regulation 20, but rejected it in relation to Regulation 9. Leave to appeal to the Upper Tribunal (UT) on the Regulation 9 point was granted. The UT set aside the decision of the FTT, on a concession that the respondent had failed to follow her usual practice of treating such an application as an application for a residence card and for revocation of the deportation order. The matter was remitted to the Secretary of State for a lawful decision to be made.
[4] Pending such a decision, the appellant applied for a second Certificate of Application, refusal of which application has been the subject of separate judicial review proceedings.
[5] The Secretary of State made a new decision on the residence card on 12 January 2015, quoting as reasoning the original decision of the FTT in relation to Regulation 9, and asserting that the UT had remitted the matter to her solely to enable her to make a decision on deportation without overturning the finding of the FTT relating to Regulation 9. On appeal against that decision, the FTT held that the deportation order was not lawful and should be revoked. The basis of the deportation order was that the appellant was a “foreign criminal”, meaning someone sentenced to imprisonment for at least 12 months. However, by virtue of section 38(1)(b) of the UK Borders Act 2007, the definition of “foreign criminal” did not include someone sentenced to 12 months’ imprisonment only by virtue of separate consecutive sentences. The FTT concluded that the Secretary of State was thus not entitled to reject the application under Regulation 20. However, the applicant did not satisfy the requirements of Regulation 9. It had not been established that the “centre of life of the appellant’s wife” had been transferred to Germany, and the length of residence in that country was considered to be too short for the purposes of the Regulation. The FTT noted that the residence in Germany had been with a purpose of providing an opportunity to return to the UK under the EEA Regulations. In addition emphasis was placed on the fact that the appellant had entered the UK in breach of the deportation order (despite the finding that the order fell to be revoked). Accordingly, on the basis of the FTT’s interpretation of Regulation 9 the appeal was refused. The FTT issued that determination on 31 March 2015. In the course of its decision relating to Regulation 20, the FTT had referred (para 73 of the determination) to the findings made in that respect in the previous determination of the FTT. In relation to Regulation 9, the FTT also (Paras 87-90) referred to the findings made in the earlier determination.
[6] Permission to appeal to the UT was granted on 22 April. The judge who granted leave noted that (a) the order revoking the deportation order must stand; (b) that it was arguable that the FTT had erred in applying a version of Regulation 9 which had been amended, rather than the transitional provisions which appeared to apply to someone in the position of the appellant; (c) that the FTT had erred in taking account of the FTT’s findings at the original hearing; and (d) that it was arguable that the FTT had erred in considering the “motives” behind the move to Germany. The UT found it surprising that the FTT had referred to the appellant having entered the country in breach of the deportation order.
[7] On 16 July 2015 the UT allowed the appeal and set aside the decision of the FTT. It noted that the application thus remained outstanding for a lawful decision by the respondent. In its reasoning the UT upheld the decision that the deportation order had to be revoked. Further, it considered that the FTT had erred in law in relying on findings in an earlier FTT decision which had been set aside (the determination dated 25 March 2014) (Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1). Both of these matters had been the subject of concession on behalf of the Secretary of State.
[8] Those two matters disposed of the appeal, and the UT did not consider the other matters raised in the grounds of appeal to it, as referred to in the leave to appeal decision.
[9] The appellant sought leave to appeal. On the face of it, that is surprising, since the decision had been in his favour, but he submitted that the UT should have proceeded to deal with the other matters forming part of the grounds of appeal.
[10] In the judicial review proceedings to which reference has been made, Lord Glennie noted that the appeals to date had not been entirely unprofitable, since:
(a) it had now been established that the deportation order was not lawful;
(b) it was now clear that the application must be decided upon the basis of the
Regulations as they were in force at the time of the application and not as subsequently amended;
(c) that the question was now effectively focused on whether the respondent
could rely on Regulations 20 and 21 for refusal of the application.
On that last matter, his lordship noted that this would be a matter for the respondent in the first instance, but that her decision would be constrained by the principles governing such a decision, set out in Regulation 21(5), and subject to appeal in the event that she reached a decision which did not satisfy the criteria there laid down. She might...
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