Awuku v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Lady Justice Gloster,Mr Justice Cranston |
| Judgment Date | 06 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1303 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2016 |
| Docket Number | C5/2014/2582 |
[2016] EWCA Civ 1303
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lloyd Jones
Lady Justice Gloster
Mr Justice Cranston
C5/2014/2582
Mr Zane Malik and Mr Shahadoth Karin (instructed by Danbar Solicitors) appeared on behalf of the Applicant
Ms Gemma White QC (instructed by Government Legal Department) appeared on behalf of the Respondent
This is an appeal against an order made by Upper Tribunal Judge Eshun on 3 June 2015, which allowed the Secretary of State's appeal against an order made by Judge of the First-tier Tribunal Raikes on 12 March 2014 that the appellant, Mr Awuku, was a spouse of an EEA national for the purposes of Regulation 7 of the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal proceedings were themselves an appeal of a decision of the Secretary of State on 19 December 2013 refusing Mr Awuku's application for a residence card as a confirmation of a right to reside in the United Kingdom. The appeal against the order of the Upper Tribunal is also brought on the basis that it failed to consider Mr Awuku's rights under Article 8 of the European Convention on Human Rights when allowing the appeal.
The appeal comes before us in unusual circumstances in that the Secretary of State agrees with the appellant that the Upper Tribunal was incorrect to find that Mr Awuku was not a spouse for the purposes of Regulation 7 of the EEA Regulations and agrees that the appeal should be allowed. However, given what is said on behalf of the Secretary of State to be the wider importance of the issues arising on appeal and the need to overrule Upper Tribunal authority in allowing the appeal, the Secretary of State invites the court to give judgment on the appeal following a hearing, rather than disposing of the appeal without determining the merits.
Mr Awuku 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 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 basis 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.
First-tier Tribunal Judge Raikes considered Mr Awuku's appeal on the papers on 4 March 2014. On the basis of the evidence provided, including his marriage certificate and a statutory declaration, the judge was satisfied that he was the spouse of an EEA national. On the evidence before her, the judge found that the marriage between the appellant and the EEA national was recognised in the country in which it took place, that it was properly executed such as to satisfy the requirements of the law in the country in which it took place and that there was nothing in the law of either party's country of domicile that restricted freedom to enter into the marriage. Although it was unnecessary for her to do so, given her finding that Mr Awuku 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 was engaged by the Home Office decision and came to the conclusion that any removal would be a disproportionate breach of the Article 8 rights of Mr Awuku, his spouse and his family.
Permission to appeal to the Upper Tribunal was granted on the basis that the judge had erred in failing to have regard to 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. That 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, as he put it, in this case it was for the German authorities to determine whether Mr Awuku's marriage to his EEA national spouse by proxy was valid and recognised by Germany. In the absence of any evidence that his marriage was recognised by the German authorities, Mr Awuku had failed to discharge the burden of proof on him and the decision of the First-tier Tribunal could not stand. Judge Eshun went on to conclude, in addition, that given the lack of evidence as to the validity of Mr Awuku's marriage under German law, the judge's findings on Article 8 could not stand.
Permission to appeal to the Court of Appeal was granted by Moore-Bick LJ on 24 October 2014 on one of four grounds relating to the Kareem point. On a renewal hearing, Mr Awuku was also granted permission to appeal on another ground relating to Article 8. Counsel for Mr Awuku has subsequently reformulated the two grounds as three grounds of appeal, to which I will refer in a moment.
At the heart of the case, lies the decision of the Upper Tribunal in Ka...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2017-11-29, IA/31894/2015
...the Secretary of State had agreed to reconsider all such cases, I was referred to Awuku v Secretary of State for the Home Department [2016] EWCA Civ 1303 (that decision being an earlier part of the proceedings in the Court of Appeal reported under a different citation), in particular at [10......
-
Upper Tribunal (Immigration and asylum chamber), 2018-05-03, EA/13716/2016
...was in error given that the Court of Appeal had overturned those decisions in Awuku v Secretary of State for the Home Department [2016] EWCA Civ 1303. As such, it was claimed that in fact the Appellant had entered into a valid customary marriage recognised under Ghanaian law (with a letter ......
-
Upper Tribunal (Immigration and asylum chamber), 2017-05-17, IA/28043/2015
...of appeal were granted on the basis that the judge materially erred in the light of Awuku v Secretary of State for the Home Department [2016] EWCA Civ 1303. The grounds for permission to appeal noted that the respondent accepted that the marriage certificate was legalised by the Spanish aut......
-
Upper Tribunal (Immigration and asylum chamber), 2019-06-20, EA/03797/2018
...– EU law) [2014] UKUT 24 which at the date of the decision under challenge had been reconsidered by the Court of Appeal in Awuku [2016] EWCA Civ 1303. The judge failed to consider the further evidence and the change in the law since the previous decision. Further, there was an abundance of ......