Chang (EEA Nationals - Spouses)
| Jurisdiction | England & Wales |
| Judge | C. M. G. Ockelton,Deputy President |
| Judgment Date | 24 April 2001 |
| Neutral Citation | [2001] UKIAT 12 |
| Court | Immigration Appeals Tribunal |
| Date | 24 April 2001 |
[2001] UKIAT 12
IMMIGRATION APPEAL TRIBUNAL
Mr C. M. G. Ockelton (Deputy President)
Mr K. Drabu
Dr H. H. Storey
Chang (EEA Nationals — Spouses) Malaysia *
The Appellant, a citizen of Malaysia, appeals, with leave, against the decision of an Adjudicator (Mr G. Warr) that he has no right of appeal against the decision of the Respondent on 9 October 1996 refusing to issue him with a confirmation of a right to remain in the United Kingdom as the spouse of an EEA national exercising Treaty rights. Before the Tribunal he was represented by Mr C. J. Brion of Brion & Co, solicitors, and the Respondent was represented by Mr P. Saini of counsel, instructed by the Treasury Solicitor.
The formal status of this appeal to the Tribunal is that, following service of the Appellant's notice of appeal, the Respondent alleged as a preliminary issue that the Appellant has no right of appeal. The stated reason for that allegation may be explained for the purposes of this determination as follows. (i) The Appellant could have an in-country right of appeal only under Article 18 of the Immigration (European Economic Area) Order 1994 (SI 1987/465) as the family member of a national of a Member State. (ii) Article 2(2) of that Order provides that for the purposes of the Order ‘spouse’ does not include a party to a marriage of convenience. (iii) The Appellant has no claim except as a spouse. (iv) He is (as alleged by the Respondent) a party to a marriage of convenience. Hence (v) he has no in-country right of appeal.
The Adjudicator was requested to determine the right of appeal as a preliminary issue, as provided for by Rule 8(3) and 11(1) of the applicable rules, the Immigration Appeals (Procedure) Rules 1984. In determining that preliminary issue, however, the Adjudicator was concerned with the law relating to the rights of spouses of EEA nationals, and the burden and standard of proof (if any) imposed on those who seek to obtain documents granting or evidencing their rights to enter or remain in a Member State as a spouse. Those are the matters in issue before us.
The primary facts are not in dispute. We take them largely from the Adjudicator's determination. The Appellant was born on 19 January 1968. He arrived in this country on 27 December 1991. He was refused leave to enter, but was granted temporary admission for two days, expiring on 29 December 1991, when he was expected to return to Bangkok. He failed to do so, and remained here illegally. On 29 November 1994 he married Edel Adrienne Mary McCarthy, who is a citizen of the Republic of Ireland. Her status is not in evidence, but she is said to have been in employment in the United Kingdom as a traffic warden (according to the marriage certificate that was her occupation at the date of the marriage) and to have been unemployed through illness since an unknown date subsequent to the marriage. The marriage is valid in English law. On 16 December 1994 the Appellant applied to the Respondent to remain in the United Kingdom as the spouse of his wife. The Respondent invited the couple to be interviewed, but that invitation was declined. There were then investigations by immigration officers. We do not need to set out the terms of the officers' reports. Given that the second report is by a person who purports to recognise the Appellant's wife, it may be that there were investigations not recorded in either report. In any event, the Respondent took the view that the Appellant was not cohabiting with his wife and, further, that his marriage had been entered into ‘solely to evade statutory immigration controls’. He refused to issue a residence document on the ground that the Appellant's marriage ‘is one of convenience’.
The Adjudicator noted that, before him, the representatives of the two parties agreed that, given that the Appellant and his wife were validly married, the Secretary of State bore the burden of proving, to a high degree, that the marriage was a sham. He took account of the immigration officers' reports and an allegation, not contradicted by the Appellant, that the Appellant's wife had been claiming Income Support and Severe Disability Allowance as a single person living alone. He found on the evidence that the marriage was without substance, contracted solely for immigration purposes, and giving rise to no community rights.
The Adjudicator further declined to hold in the Appellant's favour on two specific arguments put by Mr Brion. The first was that the fact that the Appellant had entered into a valid marriage was the end of the matter. The second was that, if the Respondent failed to refuse an application for a residence permit within six months of the application, he was obliged to grant it. These arguments are put again before us.
If we may summarise the Appellant's arguments, they are that Community law, in order to promote rights of residence and free movement, severely restricts the power of Member States to require information or documentation before granting a residence permit to members of the family of a national of a Member State. If a family member has produced the documents required by Community legislation, he is entitled to his permit. It is therefore not open to the Respondent to categorise the Appellant's marriage as a ‘marriage of convenience’: he is required merely to recognise the existence of a valid marriage and, consequently, a lawful relationship. It follows that the provision in the Immigration (European Economic Area) Order 1994, Article 2 (2) that ‘spouse’ does not include a party to a marriage of convenience, is contrary to Community law. (We should add, for the sake of completeness, that, with effect from 2 October 2000, that provision was replaced by an identical definition of ‘spouse’ in Article 2(1) of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326).)
Mr Brion does not argue that the recognition of a marriage which is, in fact, a sham does anything to promote Community principles. He submits that the question is what the Secretary of State is entitled to do in order to check on the reality of a relationship which is formally valid. His position is that the Secretary of State's powers are effectively restricted by the Community legislation and by Article 8 of the European Convention on Human Rights. In the context of the present case, he argues, first, that the Appellant had done at all that he was required to do; and, secondly, that the inquiries made were an interference with his private life disproportionate to the aim the Respondent sought to achieve.
Both representatives produced full skeleton arguments and bundles. We are grateful to both for their guidance in an area of some complexity. Reference was made to decisions of the European Court of Justice in Knoors [1979] ECR 399, Diatta (Case 267/83) [1985] ECR 567, Levin (Case 53/81) [1982] 2 CMLR 454, Lair v Universität Hannover [1988] ECR 3161, Surinder Singh (Case 370/90) [1992] Imm AR 565, Brennet v Palletta (‘ Paletta II’) [1996] ECR I-2357, Bouchoucha [1990] ECR I-3551, Kefalas [1998] ECR I-2843 and Centros Ltd [1999] ECR I-1459; decisions of the High Court in Husseyin [1988] Imm AR 129 and Cheung [1994] Imm AR 104; determinations of the Tribunal in Kwong (10661), Lau (10859), Wong (12602), Yuen (12960), Desmond ( 15063) and Yuen (18283); and a determination of an adjudicator, Professor A. Grubb, in Chu (TH/4019/95).
We must consider first the Community legislation, because any right the Appellant has under Community law would survive any purported restriction of it by national law. The materials to which we have been referred are the following. We set out only the parts appearing to us to be relevant.
The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
(a) his spouse and their descendants who are under the age of 21 years or are dependants;
(b) dependent relatives in the ascending line of the worker and his spouse.
Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.
The provisions of this Directive shall apply to any National of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.
These provisions shall apply also to the spouse and the members of the family who come within the provisions of the regulations and directives adopted in this field in pursuance of the Treaty.
A decision to grant or to refuse a first residence permit shall be taken as soon as possible and in any event not later than six months from the date of application. The person concerned shall be allowed to remain temporarily in the territory pending a decision either to grant or to refuse a residence permit.
Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies.
Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3.
As proof of the right of residence, a document entitled ‘Residence Permit for a National of a Member State of...
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