Albert Awuku v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Lloyd Jones,Lady Justice King,Lord Justice Lindblom
Judgment Date23 March 2017
Neutral Citation[2017] EWCA Civ 178
Docket NumberCase No: C9/2014/2582
CourtCourt of Appeal (Civil Division)
Date23 March 2017

[2017] EWCA Civ 178

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (IAC)

UPPER TRIBUNAL JUDGE ESHUN

IA/02332/2014

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lloyd Jones

Lady Justice King

and

Lord Justice Lindblom

Case No: C9/2014/2582

Between:
Albert Awuku
Appellant
and
Secretary of State for the Home Department
Respondent

Zane Malik and Shahadoth Karim (instructed by Danbar Solicitors) for the Appellant

Gemma White QC (instructed by Government Legal Service) for the Respondent

Samantha Broadfoot QC as Advocate to the Court

Hearing date: Tuesday 28 February 2017

Approved Judgment

Lord Justice Lloyd Jones
1

This is an appeal by Mr. Albert Awuku ("the appellant") against a decision of Upper Tribunal Judge Eshun promulgated on 3 June 2014 allowing the Secretary of State's appeal against a decision of First-tier Tribunal Judge Raikes promulgated on 12 March 2014, in turn allowing an appeal against the decision of the Secretary of State for the Home Department ("the Secretary of State") made on 28 November 2013 refusing the appellant's application for a residence card as a confirmation of a right to reside in the United Kingdom on the ground that the appellant was not the "spouse" of an EEA national for the purposes of Regulation 7 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). The decision of the Upper Tribunal is also challenged on the basis that it failed to consider Mr Awuku's rights under Article 8 ECHR when allowing the appeal.

2

The appeal comes before the court in rather unusual circumstances. In advance of a hearing before Gloster and Lloyd Jones L.JJ. and Cranston J. on 6 December 2016 the Secretary of State notified the court that she had changed her position on the appeal and now invited the court to allow the appeal by consent on the basis that a line of authority in the Upper Tribunal, including the decisions in Kareem [2014] UKUT 24 (IAC) and TA [2014] UKUT 316 (IAC), was wrongly decided. In a judgment dated 6 December 2016 the Court of Appeal adjourned the matter to be relisted with the benefit of adversarial argument from an advocate to the court.

3

We are grateful to H.M. Attorney General for nominating Miss Samantha Broadfoot QC as advocate to the court and to Miss Broadfoot and the other counsel in the case for their very helpful submissions.

Factual and Procedural Background

4

The appellant was born on 10 October 1973 and is of Ghanaian nationality. He was married by proxy in Ghana to a German national on 4 February 2013 under Ghanaian customary law. On 28 August 2013 he applied under the EEA Regulations for a residence card as a confirmation of a right to reside in the United Kingdom as the spouse of an EEA national who is exercising free movement rights. The application was refused on 28 November 2013 on the ground that the Secretary of State was not satisfied that Mr Awuku's claimed marriage was registered in accordance with the Ghanaian Marriage and Divorce (Registration) Law 1985.

5

First-tier Tribunal Judge Raikes considered Mr Awuku's appeal on the papers on 4 March 2014. On the basis of the evidence provided by the appellant, including his marriage certificate and a statutory declaration, the judge was satisfied that he was the spouse of an EEA national. The First-tier Tribunal judge based her conclusions on:

(1) The appellant's Ghanaian passport and his EEA national partner's German passport covering the period 21 February 2008 to the present day.

(2) A marriage certificate showing the date of marriage in Ghana as 4 February 2013, that the marriage was registered with the District Registrar in Ghana on 13 August 2013 and that neither party had been married prior to entering into this agreement.

(3) A statutory declaration to support the marriage and application for registration, containing the names of the parties to the marriage, their place of residence at the time of the marriage and a statement that there had been compliance with the conditions essential to the validity of the marriage in the applicable customary law. The declaration also stated that the declarants were Ghanaian by both birth and nationality and were the fathers of the appellant and the EEA national.

(4) The fact that the statutory declaration was accepted by the Registrar of Marriages who duly registered it and the existence of evidence that the notary's credentials had been authenticated by the Ghanaian authorities.

6

On this evidence the First-tier Tribunal judge found that the marriage between the Appellant and the EEA national was recognised in the country in which it took place (the lex loci celebrationis), that it was properly executed so as to satisfy the requirements of that law, and that there was nothing in the law of either party's country of domicile that restricted their freedom to enter into the marriage.

7

Although it was unnecessary for her to do so, given her finding that the appellant was a family member of the EEA national for the purposes of the EEA Regulations, the First-tier Tribunal judge also considered whether Article 8 ECHR was engaged by the Home Office decision and whether there was any breach of the appellant's Article 8 rights. The judge applied the five-stage test outlined in Razgar [2004] UKHL 27 and came to the conclusion that any removal would be a disproportionate breach of the Article 8 rights of the appellant and his spouse.

8

Permission to appeal to the Upper Tribunal was granted on the basis that the judge had erred in failing to have regard to the decision in Kareem [2014] UKUT 24, which required her to consider whether the marriage was recognised in the EEA national's home State, in this case Germany.

9

The appeal was heard by Upper Tribunal Judge Eshun on 22 May 2014. Judge Eshun allowed the Secretary of State's appeal on the basis that the effect of Kareem is that, in this case, it was for German law to determine whether the appellant's marriage by proxy to his EEA national spouse was valid and recognised. In the absence of any evidence that his marriage was recognised by German law, the appellant had failed to discharge the burden of proof on him and the decision of the First-tier Tribunal could not stand. In addition, he held that in the light of a lack of evidence as to the validity of the appellant's marriage under German law, Judge Raikes's conclusions on Article 8 could not stand.

10

Permission to appeal to the Court of Appeal, limited to the Kareem issue, was granted by Moore-Bick LJ on 24 October 2014. On a renewed application the appellant was also granted permission to appeal on another ground relating to the application of Article 8 ECHR. Counsel for the appellant, Mr. Zane Malik, subsequently reformulated these two grounds as three grounds of appeal. These may be restated as follows:

(1) The Upper Tribunal erred in concluding that the law by which the formal validity of the marriage is to be determined for the purposes of Regulation 7 of the EEA Regulations is the law of Germany.

(2) The Upper Tribunal erred in concluding that in the absence of evidence that German law recognises a Ghanaian marriage by proxy as valid, the marriage would not be recognised in the United Kingdom.

(3) The Upper Tribunal erred in failing to address the appellant's Article 8 claim.

Statutory Provisions

11

The recitals to Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States of 29 April 2004 ("the Citizens Directive") provide in relevant part:

"(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of "family member" should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(28) To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures."

Article 2 provides in relevant part:

"Article 2 – Definitions

For the purposes of this Directive:

1) "Union citizen" means any person having the nationality of a Member State;

2) "Family member" means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; …

3) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence."

Article 9 provides in relevant part:

"Article 9 — Administrative formalities for family members who are...

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